Cornell University Law Library 
 
 The Moak Collection 
 
 PURCHASED FOR 
 
 The School of Law of Cornell University 
 
 And Presented February 14, 1893 
 
 I IN HEnORY OP 
 
 JUDGE DOUGLASS BOARDMAN 
 
 FIRST DEAN OF THE SCHOOL 
 
 By his Wife and Daijghter 
 A. M. BOARDMAN and ELLEN D. WILLIAMS 
 
Cornell University Library 
 KF 665.S94 1873 
 
 V.I 
 
 A concise and practical treatise of the 
 
 3 1924 018 770 366 
 
 (Jorn^U Slam ^rljnnl Bbrary 
 
Cornell University 
 Library 
 
 The original of tiiis book is in 
 tine Cornell University Library. 
 
 There are no known copyright restrictions in 
 the United States on the use of the text. 
 
 http://www.archive.org/details/cu31924018770366 
 
COKCISE AND PKACTICAL TREATISE OF 
 THE LAW 
 
 OF 
 
 YEN DORS AND PURCHASERS 
 
 OP 
 
 ESTATES. 
 
 Bonie fidei venditorem, nee commndorum ppem augere, nee incommodonira 
 cognitionem obscurare oportet. — Valerius Masdrmis, 1. vii. >;. 11. 
 
 FOURTEENTn EDITION. 
 
 By EDWARD SUGDEN. 
 
 (LORD ST. LEONARDS.) 
 
 EIGHTH AMERICAN EDITION. 
 
 By J. c. pp:ekins, LL. D. 
 
 VOL. I. 
 
 PHILADELPHIA:- 
 
 KAY & BROTHER, 
 
 LAW BOOKSELLKRS, PUBLISHKRS, AND IMPORTKKS, 
 17 A5D 19 SOUi'U SIXTH STKEET, E.4.SI SIDE. 
 
 • 1873. 
 
Entered, according to Act of Congress, in the year 1873, by 
 
 Kay and BKOTiiEn, 
 ia the Office of the Librarian of , Congress, at Washington. 
 
 RIVERSIDE, CAMBRIDGE: 
 I'BIHTED BY H. O. HOUGHTON AND COMPAMT. 
 
PREFACE TO THE EIGHTH AMERICAN EDITION. 
 
 The eminent author of this treatise has given a concise history 
 of his work, in the preface to the thirteenth edition of it, which 
 was published in 1857. That preface has been reprinted in this 
 edition. The account there given of the author's labors in pre- 
 paring the several editions which had been published by him is 
 well worthy of the .att^tion of the profession, showing as it does 
 the careful and arfkioljs ptepkration, i revision, and ■ elaboration 
 which the treatise had from time to time received at his hands ; 
 and also the high estimation in which it had been held by the 
 legal profession at every stage of the successive publications of it. 
 The first edition was published in 1805 ; the last iji 1862. The 
 oldest lawyer holds the work among his earliest recollections of 
 the law, and the youngest finds it still fresh and adequate to all 
 the demands of the time. It was noticed by Lord Eldon with 
 unusual deference and respect, as early as the year 1809, when 
 the author had but recently been called to the bar, and just after 
 the publication of the third edition. It " rose at once," says a 
 learned writer, " to almost the authority of judicial decree." In 
 that light it has ever since been regarded and referred to by the 
 Bar and by the Bench. 
 
 The fourteenth English edition, published in 1862, which is re- 
 printed entire in this eighth American edition, received the last 
 and final revision of the author. In his preface to it he assures us 
 that he " had never relaxed in his labors on the work," " every 
 line of which had been written by himself." 
 
 The work contains a thorough discussion and an elaborate state- 
 ment of all the points of law and principles of equity pertaining to 
 agreements for the sale and purchase of real estate. The forma- 
 tion of the contract — its validity — the evidence that may be 
 introduced to affect it — the modes of rescinding or enforcing it, 
 
iv PREFACE TO THE EIGHTH AMERICAN EDITION. 
 
 and the remedies, both at law and in equity, on a breath of it, 
 have each b^en treated by the author with sufficient amplitude 
 and with great accuracy, clearness, and force. No treatise con- 
 tains more instructive and reliable learning on the subject of spe- 
 cific performance. Not only has the author most fully stated the 
 rules of law and principles of equity as derived from the Reports 
 and other books of authority on the subject of the work, but he 
 has also infused into it a large amount of his own practical knowl- 
 edge and learning, derived from more than fifty years of rich 
 and varied experience at the Bar and on the Bench, and not the 
 less useful to the profession because not to be found in the Re- 
 ports, or in other books. 
 
 The editor of this edition has endeavored to adapt the work to 
 the most convenient use of the profession in the United States, 
 In his notes he has stated the American Law of Vendors and Pur- 
 chasers, and has collected and cited the American cases from which 
 it is deduced and by which it is supported. He has also at the 
 same time collected and cited the English cases, bearhig upon the 
 subject, which have been reported since the publication of the last 
 edition by the author ; and has thereby aimed to give at once the 
 benefits of a new English, as"\vell as of a new American edition of 
 the work. Most of the American notes are entirely new. Such of 
 the former notes as are retained have been carefully revised and en- 
 larged. In the preparation of these notes, the editor has derived 
 great aid from the last edition of Mr. Dart's book on Vendors and 
 Purchasers, published in 1872. He has adopted and incorporated 
 into them many important suggestions, and much valuable learning 
 from that book; and has freely availed himself of Mr. Dart's 
 citations and references. In order to give greater unitj'' to the ap- 
 pearance of the book, and to render it more easy and convenient 
 for examination and reference, the editor has, throughout, incor- 
 porated the American with the English notes ; but, at the same 
 time, everything added in the Ajnerican edition, either to the 
 text or notes, has been inclosed in brackets, and is thereby 
 clearly distinguished from the original work. 
 
 The paging^ of the fourteenth English edition has been pre- 
 served in this. It appears within the brackets at the foot of the 
 pages ; and is noted by stars' in the text. This is the paging 
 referred to in the tables of contents and cases, and in the index of 
 
PREFACE TO THE EIGHTH AMERICAN EDITION. V 
 
 subjects. This method of reference has been adopted, for the 
 reason that the fourteenth, being the last by the author, will 
 doubtless be treated hereafter as the standard, edition. 
 
 J. C. PERKINS. 
 
 Salem, March, 1873. 
 
PREFACE TO THE FOURTEENTH ENGLISH ECmON. 
 
 The vmter had not concluded his labors on the new editions of 
 his Works on Powers and the recent Statutes, when a new edition 
 of this, his first work, was called for. Although he had no ex- 
 pectation of such a call in his lifetime, yet he had never relaxed 
 in his labors on the work, and the result is now before the reader. 
 New Laws and the constant addition to our Reports of Judicial 
 Decisions have furnished ample materials for a new edition. It 
 seems scarcely credible that one thousand cases should be quoted 
 in this, which were not in the last edition. The preparation of 
 his works for the Press — every line of which has been written by 
 himself — and the revision of them whilst in the Press, have 
 occupied a large portion of his time during the last five years ; 
 and whilst he anticipates a true enjoyment of his leisure, the con- 
 clusion of his labors is to him a cause of great thankfulness. 
 
 Boyle Farm, November 1, 18C2. 
 
 [iii] 
 
PREFACE TO THE THIRTEENTH ENGLISH EDITION. 
 
 Aftek the lapse of half a century since the first publication of 
 this work, I am about to send forth a thirteenth edition of it. 
 Determined at my outset in life to write a book, I was delighted 
 when I hit upon the subject now before the reader — the Law of 
 Vendors and Purchasers. The title promised well, and many por- 
 tions of the law had not previously been embodied in any treatise. 
 Modern law treatises were indeed few at that period. When this 
 work was announced for publication, nearly the universal opinion 
 was that it would be a failure, as the subjects to be considered 
 were too multifarious for one treatise. Nothing dismayed, I 
 labored diligently, and, with the aid of Lincoln's Inn Library, 
 in which a considerable portion of the book was written — for my 
 own shelves were but scantily furnished — I at length finished the 
 work in its original shape. My courage then failed me. The 
 expense of publication was certain ; and success, I thought, more 
 than doubtful ; and it was not without some difficulty that I could 
 be persuaded to refrain from committing the manuscript to the 
 flames, and to join with a bookseller in incurring the risk of pub- 
 lishing it at haK profit and loss, as it is termed. As _soon as the 
 book was printed, another bookseller bought my interest in the 
 edition, and thus relieved me from my obligations. The amount 
 I received as the price of the edition was small, but I have never 
 since received any sum with anything approaching to the same 
 satisfaction. The book was certainly the foundation of my early- 
 success in life. It was published in February, 1805, and the 
 edition was sold at once. The second edition, which was in royal 
 8vo, greatly enlarged, was published on the first of June, 1806. 
 Both these editions were published before I was called to the Bar. 
 The next, the third edition, was' published in 1808, and it was the 
 first which was divided into sections, with the placita numbered. 
 The fourth was published at the end of November, 1813 ; and in 
 
 [iv] 
 
vai PREFACE TO THE THIRTEENTH ENGLISH EDITION. 
 
 the advertisement prefixed to it (*), I * alluded to the difficulties of 
 preparing it from the great accumulation of cases, and intimated 
 the probability that I shoul(^ not be able to undertake any further 
 edition. Nevertheless, the previous labors were forgotten, and 
 new editions continued to appear : the fifth in the beginning of 
 September, 1818 ; the sixth in June, 1822 ; the seventh in May, 
 1826 ; the eighth on the 1st of January, 1830 ; the ninth in May, 
 1834, in 2 vols, royal 8vo. All these six editions were published 
 whilst I was in full practice at the Bar, and could ill afford the 
 time required to reedit the work. When I returned from Ireland, 
 in 1835, and had, for the first time in my professional life, full 
 leisure, I revised the whole of the work with great care, and pub- 
 lished an edition of it — the tenth — with luimerous additions, in 
 November, 1839, in 3 vols, royal 8vo. In several of the editions 
 it was stated, that, in order to prevent a too frequent repetition of 
 them, the number of copies had, at the several periods, been con- 
 siderably increased ; but still the work became out of print at the 
 usual time. Whilst I was yet for the second time in office in 
 Ireland, I prepared, and oh the 1st of May, 1846, I published the 
 eleventh edition, compressed into two volumes. At length there 
 arose a demand for a more concise view of the subject, and in 
 order to meet it, I reduced the work with the exception of the 
 Chapter on the Real Property Statutes, which was expanded into 
 an essay and published separately, into one common 8vo volume, 
 and in that form published it in June, 1851, as a concise and prac- 
 
 . (*) Adtektisement to the Fourth Edition. 
 
 When the last edition of tliis work was published the- author did not anticipate that 
 another would be so soon called for. He has, perhaps, been slow in obeying the sum- 
 mons, but the great quantity of new matter which has been introduced into the present 
 edition will, he hopes, be considered as some atonement for the delay. To prepare the 
 book for the Press has not been a slight task. The great accumulation of cases in all 
 the courts on the various subjects discussed by the writer, was sufficient to deter even 
 a laborious man from attempting to embody them in a work previously written. For 
 himself, the author cannot venture to say that his industry or opportunities will ever 
 again allow him to attempt to renew the labor. As the work at present stands, the 
 writer is led to believe that no case of importance has escaped him, and he has reason 
 to think that not even a dictum on the subject since the book was first undertaken has 
 eluded his researches. Some allowances are due to a performance of so general a 
 nature as the present, written before the age of twenty-two, under circumstances by no 
 means favorable ; and the grafts upon the original stock, if they add to its value in 
 fruit, are not likely to improve its symmetry. 
 
 1^1 
 
PKEFACE TO THE THIRTEENTH ENGLISH EDITION. IX 
 
 tical view of the subject, but, af course, with the cases and statutes 
 brought down to that period. That edition, which in truth was 
 the twelfth of the work in a compressed form, has in its turn been 
 absorbed by the profession. I had not found it possible to com- 
 press the great mass of matter in the eleventh edition into the 
 smaller one, -without the sacrifice of some important subjects, and 
 of many discussions which gave to the original work its character 
 as a treatise. When * therefore, the present edition was called for 
 — the last that I can expect to publish — I determined to restore 
 the work to its original shape as a treatise, and at the same time 
 to preserve its character as a concise and practical view. The 
 profession will judge whether I have succeeded. To accomplish 
 this object, T have spared neither time nor labor. They only can 
 judge of the labor and time required for such a task who are in 
 the habit of perusing all the voluminous reports of our many 
 courts. The last edition contained some five hundred cases which 
 were not quoted in the eleventh edition, and upwards of 1,200 
 cases are included in this edition which were not in the twelfth. 
 The legislative alterations in the law have greatly added to the 
 labor of every new edition, and have several times altered the very 
 phraseology of the law. If it were allowable to doubt in 1803, 
 when the work was first announced, whether the Law of Vendors 
 and Purchasers could be made the subject of one treatise, it seems 
 to admit of no doubt that no man could in 1856 'hope to write 
 upon the subject at large from his own researches and upon his 
 own resources. This branch of the law is indeed an extensive 
 one, and the number of atithorities referred to is very large. The 
 reader will bear in mind that this collection of cases is the fruit of 
 upwards of half a century of research and labor. Every case 
 cited I have perused in the original report, and every line of the 
 book has been written by myself. I doubt not that there are 
 errors which have escaped me ; but I have endeavored to leave 
 behind me this, my first work, in a shape in some sense worthy of 
 the acceptance of the members of the profession to Avhich I have 
 the honor to belong, and I know by a long experience that I may 
 
 safely rely on their indulgence. 
 
 St. L. 
 Boyle Farm, January 10, 1857. 
 
 [vi] 
 
CONTENTS. 
 
 INTRODUCTION. 
 
 1. Vendor's liability to disclose de- 
 
 fects — where the purchaser has 
 kivowledge, or they are patent — 
 ' they must hot be concealed . 
 
 2. Sale subject to all faults . 
 
 3. Eandom praise by vendor. — False 
 
 statement of value; small fine; 
 speedy vacancy ; rich meadow 
 
 4. No deceit, unless party off his guard 
 
 5. False statement of valuation fatal : 
 
 so of rent . . 
 
 6. Misrepresentations by a stranger . 
 
 7. Misrepresentations and non-disclos- 
 
 ures by a purchaser — must not 
 mislead the seller — nor conceal a 
 death which adds to value . 
 
 8. Concealment of Incumbrances and 
 
 defects in title — by attorney 
 
 9. Same attorney for both sides . 
 10. Attorney may not disclose defect to 
 
 party interested .... 
 Obligation of grantor of annuity . 
 Necessity for investigation of title 
 Punishment for concealing deeds 
 
 or falsifying pedigrees . 
 Purchasers bound by covenants in 
 
 lease 
 
 Inquiry after incumbrances . 
 
 16. 1 Where a purchaser may take pos- 
 
 17. ) session 
 
 18. Stipulation for vacant possession . 
 
 19. Purchaser of equitable rights 
 
 20. Succession duty . . . . 
 
 21. Title to be investigated before sale 
 
 PAGB 
 
 . 5 
 
 11. 
 12. 
 13. 
 
 14. 
 
 15. 
 
 16. ; 
 
 CHAPTER I. 
 
 OF SALES BT ACCTIOS AND PRIVATE CONTRACT. 
 SECTION I. 
 
 OF PnFFINO. 
 
 1. Sale without reserve ; puffing avoids 
 
 it : right to bid once : private res- 
 ervation . . . . . 9 
 
 2. Several puffers, or one as a screw, 
 
 fatal 10 
 
 3. But one bidder may be appointed 
 
 — without notice . . i . .10 
 
 4. Sub-purchaser . . . .10 
 
 5. Purchaser not to deter bidders . 10 
 
 6. Sale damaged by supposed puffers 
 
 not enforced . . . .11 
 
 7. Puffer bidding for wrong estate 
 
 not bound in equity . . .11 
 
 8. Owner buying at sale without re- 
 
 serve 11 
 
 9. Sale by lottery illegal . . .12 
 10. Sales by auction by judges or chief 
 
 clerks 12 
 
 [vii] 
 
XII 
 
 CONTENTS. 
 
 SECTION II. 
 
 OF THE rARTICUl.AltS AND CONDITIONS OF SALE. 
 
 1, 
 
 2. 
 3. 
 4. 
 5. 
 
 6. 
 
 7. 
 
 8. 
 
 II. 
 
 12. 
 
 1.3. 
 14. 
 
 15. 
 
 »li 
 17. 
 
 18. 
 
 19. 
 
 20. 
 21. 
 
 22. 
 
 24. 
 25. 
 26. 
 25. 
 26. 
 50. 
 27. 
 28. 
 29. 
 30. 
 31. 
 32. 
 33. 
 35. 
 36. 
 38. 
 
 Bidilini; may be countermanded . 13 
 Condition agiiiiist it . . . 14 
 Sale under Act of Parliament . 14 
 Cimditions favorably con.-trncd . 14 
 Lialiility of p4irclia,ser of part to 
 
 annuity on the whole * 
 Ohsciire conditions 
 " In tliis particular " . 
 Cannot be contradicted at sale 
 Purchaser bound by previous 
 
 knowled<;e 
 
 Good title implied : all interest in- 
 cluded ..... 
 Condition to take a defective title 16 
 Misdescription amounting to mis- 
 representation . . . .18 
 Instances where purchaser not 
 
 bound 19 
 
 ). Condition to accept bond . . 19 
 Condition to avoid sale if title de- 
 fective 20 
 
 Condition to deliver objections 
 
 \vitliiii a time fixed . . .21 
 Condition tliat recitals should bo 
 
 evidence 21 
 
 EtFcct of condition to rescind sale 22 
 Description of estate : free public- 
 
 liouse 
 
 Description. — House iu Kegency- 
 square, Brighton 
 
 23 
 
 Right of way ; Plans 
 
 Part not to be found . 
 
 [ Easements. — Well. — Drains ) 
 
 Intended improvements 
 Lights .... 
 
 Wall 
 
 Reading of lease at auction . 
 Buildings removed 
 Evidence of identity . 
 Covenants against trades 
 Covenants ill lease. — Public-house 
 Fen land ; taxes .... 
 Waterloo Bridge annuity : power 
 to redeem not stated . 
 [viii] 
 
 23 
 
 [24 
 !25 
 
 25 
 25 
 30 
 25 
 26 
 26 
 26 
 26 
 26 
 26 
 27 
 27 
 
 39. Power of purchase not .stated . 27 
 
 40. Tenant liolding adversely . . 27 
 
 41. Wood .28 
 
 42. Clear yearly rent . . .28 
 
 43. Condition that misdescription not 
 
 to avoid sale, does not extend 
 to fraudulent description. — Bur- ' 
 ough town . . . .28 
 
 44. Misstatement of rental . . 28 
 
 45. "Ground rent" . . . .28 
 
 46. " Brick bnili " . . . .29 
 
 47. Mistake in the number. — Part 
 
 sold not in lease . . .29 
 
 48. Business house . i . .30 
 
 49. Building ground . . . .30 
 
 50. Title letting on easements over 
 
 other lands . . . ,30 
 
 51. AVhere value cannot be estimated : 
 
 contingency . . . .31 
 
 53. Effect generally of error not fraud- 
 
 ulent, upon the condition . . 31 
 
 54. Timber 32 
 
 55. Timber-like trees to be paid for . 32 
 
 56. Timber on coi>yholds which can- 
 
 not be cut 32 
 
 57. Purchase of term sans waste . 32 
 
 58. Fixtures 33 
 
 59. Deeds nut to be producetl . . 33 
 
 60. Purchaser of largest lot to have 
 
 the deeds 34 
 
 61. Searches, &c 34 
 
 62. Attested copies . . . .34 
 
 63. Cundiiicm depriving purcha.ser of 
 
 a covenant to produce . . 35 
 64.] 
 
 65. Condition thai cestuis qiie^nisf^ 
 
 66. should not concur. — Misstate- ( , 
 
 67. ment ' ^^ 
 
 68. Landlord's title. — Bene«able 
 
 leaseholds — compensation . 36 
 
 69. Sale by assignees : bankrupt not 
 
 to concur. — Misstatement of 
 title 37 
 
 .| ( Liability of purchaser of lease- I 
 -„' ( holds P' 
 
CONTENTS. 
 
 XIU 
 
 73. I Where pnrchaser not bound to /'„„ 
 
 74. ) covenant not to build . . ) 
 
 75. 
 
 Conveyance. — Surrenders. — 
 
 
 
 Fines and fees .... 
 
 39 
 
 76. 
 
 Forfeiture of deposit, and right to 
 
 
 
 resell 
 
 39 
 
 77. 
 
 Condition to rescind . 
 
 39 
 
 78. 
 
 Stipulated damages 
 
 39 
 
 79. 
 
 Forfeiture of deposit under condi- 
 
 
 tioii. — Where there is no such 
 condition, gu 
 
 80. Resale, if bankruptcy. — Seller's 
 
 lien 41 
 
 81. Time allowed to purchaser . . 41 
 
 82. Benefit of usual conditions. — 
 
 Title 41 
 
 84. Agreements to be signed , . 42 
 
 85. \ Auctioneer may bind purchaser j 42 
 
 86. ) and seller I 43 
 
 40 
 
 SECTION III. 
 
 OP AtJCTIONEEKS AND AGENTS, AND OF THE DEPOSIT AND PUROUASE MONET. 
 
 1. Auctioneer cannot delegate: sale 
 
 of his own estate : trustee no 
 commission .... 
 
 2. Auctioneer liable, if no authority . 
 
 3. If sale dkifeated by his negligence, 
 
 not entitled to commission : an- 
 swerable for misdescription 
 
 45 
 
 4. Revocation of auctioneer's authority 45 
 
 5. Amount of commission on sale . 45 
 
 6. Amount for, finding a purchaser — 
 
 several agents . . . .46 
 
 7. When it is payable : revocation of 
 
 authority 47 
 
 8. Agent bidding beyond his authority 47 
 
 9. Disputes between principal and 
 
 agent as to the latter's authority 47 
 *10. Conditional sale by agent. . . 48 
 
 11. Agent to sell not entitled to receive 
 
 the money 48 
 
 12. Auctioneer cannot give credit . 48 
 
 13. Set-off 49 
 
 14. Remittance by seller's direction . 49 
 
 15. Purchaser may stop his cheeky if 
 
 contract void : effect of accept- 
 ance by seller of check . . 49 
 
 16. I O U for deposit, and the contract 
 
 not performed . . . .49 
 
 17. Must not pay agent before the fixed 
 
 time 50 
 
 18. Seller's direction to pay third per- 
 
 son binding . . . .50 
 
 19. Deposit is part payment . . 50 
 
 51 
 
 52 
 
 . 52 
 
 53 
 
 20. Auctioneer to retain it till contract 
 
 completed 50 
 
 Interpleader by auctioneer in 
 equity — payment of auction- 
 eer's charges. 
 Under Interpleader Act 
 Equitable pleas at law of set-ofF . 
 Loss by insolvency of auctioneer falls 
 on seller : where on mortgagor . 
 
 26. Trustees not liable for auctioneer's 
 
 insolvency . 
 
 27. Auctioneer liable where principal 
 
 not disclosed .... 
 
 28. Not liable to interest ; may pay to 
 
 insolvent principal 
 
 29. Payment to agent payment to prin- 
 
 cipal 
 
 30. Deposit invested by court, at risk 
 
 of seller 
 
 31. Proposed arrangement for disposal 
 
 of deposit 
 
 32. Where loss by sale of stock cannot 
 
 be thrown on purchaser 
 
 33. Forfeited deposit on sale of settled 
 
 estate .... 
 
 34. Seller not bound by investment 
 
 without his assent . . .54 
 
 35. Waiver of payment of deposit . 54 
 30. No election to forfeit deposit : for- 
 feiture relieved against . . 55 
 
 37. Seller to repay deposit although his 
 bill dismissed . . . .55 
 . [ix] 
 
 53 
 
 53 
 
 . 53 
 
 53 
 
 54 
 
 . 54 
 
XIV 
 
 CONTENTS. 
 
 SECTION IV. 
 
 OP SALES BY PKIVATE CONTRACT. 
 
 1. Printed conditions and agreement 55 
 
 2. Written agreement ; lelters . . 56 
 
 3. Previous representations at an end 56 
 
 4. TJkiless there be fraud . . .56 
 
 5. Purchase completed by agent bind- 
 
 ing, although contract not in writ- 
 
 . 56 
 
 6 
 
 Where agent binds himself: per- 
 sonal undertaking by solieilor . 
 
 7. Attested copies of parcels where 
 
 sale is in lots .... 
 
 8. Contract to procure a purchaser . 
 
 57 
 
 9. Waiver of contract on compromise 
 by the otlier party with his cred- 
 itors . . . ... -57 
 
 10. Purchaser liable for nuisance on 
 
 the estate 58 
 
 11. Eiyht and liability to drains as be- 
 
 tween purchaser and seller . 58 
 
 12. Liability of purchaser and seller 
 
 to fences as between each oilier . 58 
 
 13. Seller bound to leave support to 
 
 part sold : mints . . .59 
 
 SECTION V. 
 
 or SALES BY PARTIES KOT BEING OWKEE9. 
 
 10. 
 11. 
 
 12. 
 13. 
 14. 
 16. 
 17. 
 18. 
 19. 
 20. 
 
 21. 
 
 22. 
 
 23. 
 2i- 
 
 Valuation of property . . 60 
 May sell privately or by auction . 60 
 Insolvent's estates to bo sold bj' auc- 
 tion 60 
 
 Assign ees"of bankrupts not to delay 
 
 sale 61 
 
 Sale by private contract not within 
 aulhority to sell by auction: acts 
 
 of agents 61 
 
 Sale in lots . . . .61 
 
 Sale by auction valid, although not 
 at full price .... 
 
 S Trustees must use reasonable 
 diligence 
 Time of sale 
 
 [ Where sale will be stopped . i 
 
 False representation by trustees . 
 Conditions of sale .... 
 Liability of trustees 
 Where assignees may buy in 
 Where they may have a reserved 
 
 bidding : mortgagee bidding 
 Where damages against the assig- 
 nees fall on the estate 
 Sale by creditors' assignees, under 
 
 the act of 1849 
 Assignees putting up an estate 
 Abandonment by assignees of lease 65 
 
 25. Deposit repaid wilhout a bill filed 65 
 *26. Biddings for bankrupt's estate 
 
 opened .... .65 
 
 27. Power to mortgagee to sell : mort- 
 gagor cannot buy . . .65 
 
 29. Conditions of sale . . .66 
 
 30. Sales by private contract . . 66 
 
 31. Leaving part of purchase money 
 
 on mortgage . . . .66 
 
 32. Purchase by mortgagee . . 67 
 
 33. E.Npcnses . . . . .67 
 
 34. Where a power to sell can be given 
 
 to a mortgagee . . . .67 
 
 35. Sale, where 1st and 2d mortgages 67 
 
 36. Charge^ of mortgagee, an auc- 
 
 tioneer 67 
 
 37. What is proper notice . . .67 
 
 38. Effect of notice to purchaser of 
 
 W.int of notice, &c., to mortgagor 67 
 
 39. Purchaser bound by notice of ten- 
 
 der 68 
 
 40. Mortgagee cannot bid and conduct 
 
 sale 63 
 
 41. Evidence of default in payment . 68 
 42 Effect of bankruptcy . . .68 
 
 43. Bill by mortgagee for administra- 
 
 tion of assets . . . ' . 68 
 
 44. Powers to mortgagees by 23 & 24 
 
 Vict. c. 145 .... 69 
 
CONTENTS. 
 
 XY 
 
 45. Liability to make a good title . 69 
 
 46. And compensation for misdescrip- 
 
 tion 69 
 
 47. Cannot sell to themselves . . 69 
 
 48. Trustee of legal estate to convey to 
 
 trustees to sell . . . .69 
 
 49. Tenant for life, when entitled to 
 
 rents 70 
 
 50. Sales by trustees under powers of 
 
 sale and exchange . . .70 
 
 51. Cannot be controlled: how to sell 70 
 
 52. Sale and new purchase by tenant 
 
 for life 
 
 53. Contract of trustees binds the es- 
 
 tate 
 
 54. Powers to trustees for sale by 23 & 
 
 24 Vict. c. 145 . 
 
 55. Trustee's liability, for misapplica- 
 
 tion of purchase money — to costs 
 56-. Time for sale limited, extended by 
 
 equity 
 
 57. Irregular sale supported 
 
 CHAPTER II. 
 
 OF SALES TO RAILWAY COMPANIES. 
 
 1. Kail way Clauses Consolidation 
 
 Act ; Lands Clauses Consolida- 
 tion Act 72 
 
 2. Powers to purchase . . .73 
 
 3. Purchases by private contract . 74 
 
 4. Price for land or for not opposing 75 
 
 5. Where company bound by contract 
 
 of promoters ; vdtra vires doctrine 75 
 
 6. Purchaser of additional lands by 
 
 private contract . . . .77 
 
 7. Sales by compulsion : price: mines 77 
 
 8. Notice how far a contract as be- 
 
 tween vendor and purchaser : sec- 
 ond notice: specific performance 78 
 
 ■ [ Of specific performance . . -j 
 
 10. 1 Notice by company not a convcr- ) 80 
 19. ) sion of land'previously devised ) 84 
 
 12. Hill V. Great Northern Railway 
 
 Company .81 
 
 13. Effect of notice: quantity of land : 
 
 price . ' 81 
 
 14. Company must apply for abstract 82 
 
 15. How purchase money is to bo paid 82 
 
 16. Conveyance after deposit of price 83 
 
 17. Befusal to accept the money, or to 
 
 convey, or want of title, &c. ; ap- 
 plication for the money . 83 
 
 18. Vendor's covenants for title . . 84 
 
 19. Where the sale converts the estate 
 
 into personalty . . . .84 
 
 20. Where the company may enter: 
 
 effect of entry: deposit . . 89 
 
 21 . Entry before or after the prescribed 
 
 time 86 
 
 22. Eemedics against company : man- 
 damus : injunction . . 86 
 
 23. Enactments as to costs . 87 
 
 24. Decisions thereon . . . .88 
 
 25. Costa of conveyance from infant 
 
 heir or devisee . . . .91 
 
 26. Eight to purchase money . . 92 
 
 27. Entry to make spoil banks, &c. : 
 
 company compellable to pur- 
 chase 92 
 
 28. Where interest payable by com- 
 
 pany : loss by bankers . . 92 
 
 29. Purchaser from company subject 
 
 to a condition . . .92 
 
^Vl 
 
 CONTENTS. 
 
 CHAPTER HI. 
 
 OF SALES UNDER THE AUTHORITY OF TUE COURTS OF EQUITY. 
 
 SECTION I. 
 
 or THE PEOCfiEDlNGS FKOM TILE ADTERTISEMEXTS TO THE CONTEYAXCE. 
 
 10. 
 11. 
 12. 
 1-3. 
 
 14. 
 15. 
 16. 
 17. 
 18. 
 19. 
 20. 
 21. 
 
 23. 
 24. 
 2j. 
 
 26. 
 27. 
 
 28. 
 29. 
 30. 
 
 Power to sell in suits . 
 
 Power to sell in foreclosure suits 
 
 Sale under direction of judge 
 
 Title to be first examined . 
 
 Charges for abstracts ; conditions ; 
 answering queries 
 
 Opinion of conveyancing counsel 
 
 Vi'rification of conveyance . 
 
 Amount of deposit 
 
 Reserved bidding 
 
 Advertisements . . . . 
 
 Direction for sale, how carried out 
 
 Particulars of sale 
 
 Coni|>ensation for misrepresenta- 
 tion 
 
 Appointment of anctioneer . 
 
 Mortgagee not to conduct sale 
 
 How sale conducted 
 
 Best bidder 
 
 Deposit ..... 
 
 Fraud by puffing .... 
 
 Verbal declarations by auctioneer 
 
 Substitution of another as pur- 
 chaser 
 
 llcsale at a profit 
 
 Pi-ocecdings after sale . 
 
 Contract not complete till confir- 
 mation. How report is con- 
 firmed . ... 
 
 Loss by fire, &c., in the interim . 
 
 Proceedings where purchaser 
 holds back .... 
 
 Bi.lding by insane person void 
 
 Procecdinii;s at dianibers 
 
 Payment of purchase money and 
 possession ..... 
 
 93 
 
 31 
 
 94 
 
 33 
 
 94 
 
 
 94 
 
 35 
 
 
 37 
 
 94 
 
 38 
 
 9.5 
 
 39 
 
 95 
 
 40 
 
 95 
 
 41 
 
 96 
 
 42 
 
 96 
 
 43 
 
 97 
 
 44 
 
 97 
 
 45 
 
 
 46 
 
 98 
 
 47 
 
 98 
 
 48 
 
 99 
 
 50 
 
 99 
 
 51 
 
 99 
 
 
 99 
 
 52 
 
 99 
 
 53 
 
 99 
 
 55 
 
 
 5^ 
 
 100 
 
 58 
 
 100 
 
 
 100 
 
 59. 
 
 
 60 
 
 101 
 
 
 101 
 
 63 
 
 
 65. 
 
 102 
 
 66 
 
 102 
 
 
 102 
 
 67 
 
 
 69 
 
 102 
 
 Incumbrances, how paid oflf 103 
 
 Possession from previous quarter 
 
 day 104 
 
 Mortgagee's right when purchaser 104 
 Purchaser's right to life annuity . 104 
 And to a life interest . . . 104 
 Purchase of reversion fallen in 105 
 Purchaser's right to a colliery . 105 
 Court alone gives possession . 105 
 Preparation, &c., of conveyance . 105 
 Objeciions to title . . . 106 
 Equitable title .... 107 
 Purchaser cannot bring an acHon 107 
 Costs to purchaser where title bad 107 
 Who is to pay them . . .107 
 Costs of reference of title . . 107 
 Delay in making out title . . 107 
 Death of purchaser before con- 
 veyance 108 
 
 Rights of incumbrancers . .108 
 Sale contrary to order void . .108 
 Sale not within statute of frauds . 109 
 Purchaser restrained from waste . 109 
 Indemnity against rent and cov- 
 enants 109 
 
 Conveyance by incompetent, &c., 
 
 per.ons 109 
 
 Improvements before sale con- 
 firmed 109 
 
 Decree a security to purchiiscr . 110 
 Judgment creditors atf>.-cted . HI 
 
 Improper payments to tenants 
 
 for life . . . .111 
 
 Lord Bandon w. Becher . .112 
 Vans Agnew f. Stewart . . 112 
 
 SECTION IL 
 
 OF OPENING TUE BIDDINGS, AND OF KESOINDINO THE CONTRACT. 
 
 1 . Opening biddings 
 
 3. Advance required 
 
 4. Tiuibur valued 
 
 . 114 
 . 115 
 . 116 
 
 5. Operation of vice cliaiiceiror's 
 
 certilicate H6 
 
 [xi] 
 
CONTENTS. 
 
 XVll 
 
 6. When certificate confirmed, ad- 
 vance of price not sufficient . 116 
 
 8. Fraud sufficient . . . .117 
 
 9. Costs of first purchaser . .118 
 10. Beallotment lipon resale . .118 
 
 12. Person present at sale may open 
 
 it 118 
 
 13. Sham biddings . . . .118 
 
 14. Person opening not repaid his 
 
 costs 118 
 
 16. Where lots, all to he opened. — 
 
 Opening sale of lots to different 
 purchasers . . . .119 
 
 17. Substitution of sub-purchaser . 119 
 
 18. Scturn of stock on rescinding 
 
 contract .... 
 
 19. Inequitable sale rescinded. But 
 
 not a hard bargain . 
 * 20. Unless there is mistake ; and no 
 delay .... 
 
 21. Bad title discovered before con 
 
 veyance, money returned . 
 
 22. Solicitor bound*, although only 
 
 buying in . 
 
 23. Kemedy against executors . 
 
 25. Sale by private contract not 
 
 opened .... 
 
 26. No costs to purchaser of extended 
 
 estate, although no titio . 
 
 119 
 
 119 
 
 120 
 
 120 
 
 120 
 120 
 
 121 
 
 121 
 
 CHAPTER IV. 
 
 OP PAROL AGREEMENTS : GENERAL CONSTRUCTION OP STATUTE. 
 
 SECTION I. 
 
 1. Construction of^first section 
 
 2. Construction- of fourth section 
 
 3. Statute of 8 & 9 Vict. . 
 
 122 
 122 
 123 
 
 4. Parol license valid . . . 123 
 
 5. Void agreement may operate as a 
 
 license 124 
 
 SECTION II. 
 
 OP THE rouExn 
 
 1. Extends to interests created de 
 
 novo .' 124 
 
 3. Exclusive right to vesture within 
 it. — Growing crops, as grass. — 
 Or growing poles, underwood, 
 timber 12.5 
 
 5. But not wheat . . . . 125 
 
 6. Nor trees sold as wood . .125 
 
 7. Norpotatoes. — Turnips. — Hops. 
 
 10. 
 
 SECTION. 
 
 — Crops between tenants. — 
 Fixtures . . . . .126 
 
 But void sale, if executed, bind- 
 ing 126 
 
 Mining company shares within 
 4th section. — Not railway shares 127 
 
 Entire parol agreement for realty 
 and personalty wholly void . 127 
 
 SECTION III. 
 
 OF THE FOKU AND SICUATUKE OF THE AGREEMENT. 
 
 2. Signature by party to be charged 
 
 sufficient 
 
 Blank for seller's name fatal 
 
 How the other party may bo 
 bound 
 
 VOL. I. 4 
 
 128 
 129 
 
 130 
 
 7. Beceipts and letters sufficient. — 
 
 Stamping letters . . . 130 
 
 9. Offers in writing binding . . 131 
 
 10. Unless there be fraud . . . 132 
 
 11. Simple acceptance binding . . 132 
 
 12. Conditional offer . . . .133 
 
 [Xil] 
 
XTIU 
 
 CONTENTS. 
 
 13. EiFect of mistake of owner's agent 
 
 on an agreement by letter. . 133 
 U. Posting letter . . . .133 
 
 15. Offer may be retracted before ac- 
 
 ceptance ..... 133 
 
 16. Where special acceptance neces- 
 
 sary 133 
 
 17. ) Eeceipt or letter must specify all 
 
 20. ) the terms . .^ . . .134 
 
 21. Consideration should appear . 134 
 23. Trifling omission fatal . . . 135 
 25. 1 Omissions supplied by reference 
 
 31. ) to other writings . . 135, 137 
 
 27. Instructions for contract not suffi- 
 
 ciently referred to . . . 136 
 
 28. Bankruptcy discharges offer . 136 
 
 32. What amounts to an adoption of 
 
 an unsigned agreement . . 137 
 
 33. Insufficient references to other 
 
 papers 138 
 
 Boyce v. Greene .... 138 
 
 Want of signature not supplied 
 by letter abandoning an agree- 
 ment ...... 138 
 
 Reference to different contract in- 
 sufficient 138 
 
 f Auctioneer's receipt, entry, &c., 
 binding .... 138, 139 
 ) Letters to third persons bind- 
 
 [ ing ., 139 
 
 Bonds of reference to surveyor . 140 
 
 Rent rolls, abstracts, &c., not 
 agreements . . . .140 
 
 Nor draft of conveyance . . 140 
 1 Valid agreement binding, though 
 j sent as instructions . . . 141 
 Pleading letters .... 141 
 
 ♦SECTION IV. 
 
 OF THE SIGNATUKE TO AN AGKEEMENT. 
 
 1. Of specialties and parol contracts 142 
 
 2. Of the place of the signature. — 
 
 Signatuie in form as witness 
 valid 142 
 
 3. But not a signature as an attest- 
 
 ing witness . . . .143 
 5. Name of agent sufficient . .143 
 
 6. Initials sufficient . . , 144 
 
 7. Signature on particulars and con- 
 
 ditions of sale .... 144 
 
 8. Alterations of draft of convey- 
 
 ance, &c., insufficient . . 144 
 
 9. Draft unstamped, evidence . . 144 
 
 SECTION V. 
 
 OP SIGNATURE BY AGENTS. 
 
 1. Agent appointed by parol good : 
 contract by corporation must 
 be under their seal . 
 
 3. Clerk of agent requires distinct 
 
 authority 
 
 4. Revocation of authority 
 
 5. Auctioneer and clerk agents for 
 
 both parties .... 
 
 115 
 
 146 
 
 146 
 
 146 
 
 6. Signature for one party sufficient, 
 
 whether lands or goods 
 
 7. Although an agent bid 
 
 8. Where an auctioneer can sign for 
 
 a party and sue him . 
 
 9. Ratification of act of assumed 
 
 agent 
 
 146 
 147 
 
 147 
 
 147 
 
 SECTION VI. 
 
 OF PAKOL AGEEEMENTS NOT WITHIN THE STATUTE. 
 
 1. Salesby auction within the Statute 148 
 
 2. Sales by the court not . ' . 148 
 4. Collateral agreement not . . 148 
 
 [xiii] 
 
 5. Agreements confessed not. — Un- 
 
 less statute insisted upon . . 149 
 
 6. Conviction of perjury . . .150 
 
CONTENTS. 
 
 XIX 
 
 SECTION vn. 
 
 OF FRAUD AND PART PERFORMANCE. 
 
 1. Agreement in writing prevented 
 
 l)y fraud 
 
 2. Part performance, parol agree- 
 
 ment enforced .... 
 
 3. What acts are a part perform- 
 
 ande — Delivery of abstracts or 
 the like, not .... 
 
 4. Delivery of possession sufficient . 
 
 5. Unless referrable to another title, 
 
 or wrongfully obtained. — Pay- 
 ment of rent, where sufficient . 
 
 6. Tenant in possession purchases of 
 
 landlord by parol; continuance 
 
 150 
 
 151 
 
 151 
 151 
 
 151 
 
 in possession not a part per- 
 formance 152 
 
 7. Payment of purchase money in- 
 
 sufficient, semble . . .152 
 
 8. Acts done to a man's own preju- 
 
 dice 154 
 
 9. Distinct lots . . . .154 
 
 10. Where terms of agreement are 
 
 uncertain 154 
 
 11. Representatives bound where part 
 
 performance . . . .156 
 
 12. Whether remainder-man bound . 156 
 
 13. Issue directed where dispute, and 
 
 both parties dead . . .157 
 
 SECTION VIII. 
 
 OF THE ADSHaSlniLlTT OF PAROL EVIDENCE TO VARY WRITTEN INSTRUMENTS. 
 
 averments to support a 
 
 1. Parol 
 
 deed . . . . "". .157 
 
 2. Parol addition rejected . . 1 58 
 
 3. So of what passed upon the treaty 158 
 
 4. Parol declaration of auctioneer 
 
 rejected . . . . .158 
 
 5. Parol addition also rejected in 
 
 equity 159 
 
 Unless on behalf of a defendant \ 
 in equity. — Where there is > 
 fraud. — Ormistake or surprise ) 
 
 11. Martin v. Pycroft 
 
 12. But not to explain the instrument. 
 
 Clowes V. Higginson considered 
 15. Croome v. Lediard considered 
 17. Parol variations after the con- 
 tract, witliout consideration, re- 
 jected 
 
 9. 
 10. 
 
 160 
 
 . 160 
 
 161 
 162 
 
 .463 
 
 19. Where written agreement correct, 
 
 parol addition rejected alto- 
 gether 163 
 
 20. Parol evidence of collateral mat- 
 
 ters, as taxes, &c., rejected . 164 
 *21. No variation liy parol . . 164 
 
 22. Waiver of stipulation for good 
 
 title inadmissible . . . 164 
 
 23. Contra in equity .... 165 
 
 24. Time cannot be waived by parol 
 
 at law i . . . . 165 
 
 25. Contra in equity .... 165 
 
 26. Parol variation part performed 
 
 enforced in equity . . . 165 
 
 27. Result as to parol variations . 165 
 
 28. Entire agreement for realty and 
 
 personalty 166 
 
 29. Equitable powers in courts of law 166 
 
 SECTION IX. 
 
 OF THE ADMISSIBILITY OF PAROL EVIDENCE TO ANNUL WRITTEN INSTRUMENTS, 
 AND TO EXPLAIN AMUIGUITIES. 
 
 1. Parol waiver .... 1661 4. Waiverof parol agreement cannot 
 
 2. Terms of statute . . . . 167 be proved 168 
 
 3. Abandonment a defence in equity : 5. Sorts of ambiguities , . . 168 
 
 at law, semble , . . .1681 
 
 [xiv] 
 
XX 
 
 CONTENTS. 
 
 6. Latent ambiguity cleared up by 
 parol evidence .... 
 
 8. Patent ambiguity not. — General 
 
 words not restrained by parol . 
 
 9. Contra in equity upon mistake 
 
 169 
 
 169 
 169 
 
 10. Situation of parties, &c., looked 
 
 at where tliere is ambiguity . 169 
 
 11. Ancient statutes. — Contempora- 
 
 neous usage . . . .170 
 
 12. Whetber price can be looked at 
 
 where there is ambiguity . . 170 
 
 SECTION X. 
 
 OP PAKOL EVIDENCE IN EQUITY TO COKRECT MISTAKES OB FBAtlDS. 
 
 1. Mistalics and frauds corrected by 
 
 parol evidence .... 
 
 2. Parol evidence corroborated 
 
 3. Mistake of purchaser's attorney 
 
 in conveyance corrected . 
 
 4. Proposals to correct by, must be 
 
 final contract .... 
 
 5. Omission of provision on supposed 
 
 illegality 
 
 171 
 171 
 
 172 
 
 173 
 
 173 
 
 6. Fraud corrected. — What amounts 
 
 to fraud 173 
 
 7. Third person drawing up minutes 
 
 contrary to intention . . .173 
 
 8. Promise to rectify an accidental 
 
 omission enforced . . .174 
 
 9. Effect of fraud . . . .174 
 10. No relief against bona fide pur- 
 chaser 174 
 
 CHAPTER V. 
 
 OF THE CONSEQUENCES OP THE CONTKACT. 
 
 SECTION I. 
 
 OF THE PUKCHASEk'S TITU! FK03I THE TIME OP THE CONTKACT. 
 
 1. Seller trustee of estate for pur- 
 
 chaser 
 
 2. Bankruptcy does not discharge 
 
 the contract . . ". . 
 
 3. Assignees put to their election 
 
 5. Extent prevails over contract 
 
 6. Purchaser without notice also 
 
 7. Death of party immaterial . 
 
 8. Purchase money assets of vendor 
 
 9. Mortmain act ... . 
 
 10. Purchaser not to cut timber 
 
 11. Operation of contract where the 
 
 purchaser is tenant . 
 
 13. Conveyance destroys covenants in 
 
 lease 
 
 14. Purchaser let into possession on 
 
 contract : tenancy 
 
 15. Ejectment against him 
 
 16. Where tenancy created by con- 
 
 tract to pay interest . 
 [XV] 
 
 . 175 
 
 175 
 176 
 176 
 177 
 177 
 177 
 177 
 177 
 
 . 178 
 
 178 
 
 179 
 179 
 
 180 
 
 17. Where time no bar . . , ISO 
 
 18. Where purchaser can recover for 
 
 use and occupation against 
 seller iso 
 
 19. Scaton o. Booth: condition that 
 
 purchaser shall be tenant . . 180 
 
 20. Purchaser to recover for use and 
 
 occupation against his tenant 
 before conveyance . . .181 
 *21. Purchaser's remedy after convey- 
 ance for rent and covenants . 181 
 
 22. Apportionment of rents . . 182 
 
 23. Purchaser's power over the estate 182 
 
 24. 1 
 j^ [ His power of devising hefme 
 
 I 1 Vict. c. 26, viz. 
 
 25. Effect of devise where the pur- 
 
 chaser had u term of years. — 
 Previous bequest of term. — 
 Conveyance did not operate a 
 
 183 
 
 to 
 
 183 
 
CONTENTS. 
 
 XXI 
 
 revocation. — Unless new uses 
 introduced . . . .183 
 
 26. Estates contracted for after the 
 
 will not affected by it . .184 
 
 27. Republication . . . .184 
 
 28. Heir put to his election . .185 
 
 29. Cautions in purchasing from heir 185 
 
 30. Copyholds 185 
 
 31. Contract revoked seller's will . 186 
 
 32. Where agreement could not be 
 
 enforced in equity, or was aban- 
 doned, qu. . . ■ . . . 186 
 
 33. Devise by seller after the contract 187 
 
 34. Estate converted, although elec- 
 
 tion to buy is in purchaser. — 
 Devisee by description entitled . 187 
 
 36. So of timber. — Eight of preemp- 
 
 tion enforced . . . .188 
 
 37. Right of next of kin of vendor. — 
 
 Compulsory sale . . .189 
 
 38. Purchaser's right to devise since 
 
 1 Vict. c. 26 . . . . 189 
 40. Operation of act on contracts. — 
 
 Upon previous bequest where 
 the purchaser was a termor 
 
 41. No form of conveyance a revoca- 
 
 tion 
 
 42. Cautions in purchasing of heir 
 4^. Contract to sell revokes the seller's 
 
 will .... 
 
 44. Agreement void in equity not a 
 
 revocation . 
 
 45. Nor an agreement abandoned, 
 
 semble. — Operation of act on 
 KnoUys v. Shepherd. — And on 
 Lawes v. Bennett 
 
 46. General operation of act 
 
 47. Operation of act on Arnald 
 
 Arnald .... 
 
 48. Where heir of purchaser entitled 192 
 
 49. His power over estate . . .192 
 
 50. Executor must pay for the estate . 192 
 
 52. Death of vendor or purchaser 
 
 and no title . . . .193 
 
 53. Where estate directed to be bought 
 
 cannot be obtained . . . 194 
 
 189 
 
 189 
 190 
 
 190 
 
 . 190 
 
 191 
 191 
 
 192 
 
 SECTION n. 
 
 OP OTHER EIGHTS AND LIABILITIES ARISING OUT OF CONTKACTS. 
 
 1. Where purchaser liable to existing 
 
 mortgage debt ; new statute . 195 
 
 2. Stopping proceedings in eject- 
 
 ment 196 
 
 3. Furtlier advances to mortgagor 
 
 after a sale by him . . .196 
 
 4. Redemption of mortgages on dis- 
 
 tinct estates . . . .196 
 
 5. Loss of mortgage deed. — Produc- 
 
 tion of mortgage deed . .197 
 
 6. Assignee of mortgagee subject to 
 
 the account; fraudulent mort- 
 gagee 197 
 
 7. Annuity the price of an estate, 
 
 how to be secured . . .197 
 
 8. Purchaser to indemnify against 
 
 charges; as where he buys it 
 lease or an equity of redemp- 
 tion. — Liability of sub-pur- 
 chaser 198 
 
 9. Incumbrances may be kept on 
 
 foot 198 
 
 10. Sales of equity of redemption . 198 
 
 11. After contract abandoned, pur- 
 
 chaser in possession paying off 
 mortgage charged as mortgagee 
 in possession . . • .198 
 
 12. Legal and equitable rights in the 
 
 crown 198 
 
 13. Agreement to give real security 
 
 enforced . . j .199 
 
 14. Sale of minerals .... 199 
 
 15. Purchaser of legacy entitled to 
 
 stock investment . . . 199 
 
 16. Fraud in sale of life policy . .199 
 
 17. Where power to repurchase makes 
 
 a loan 199 
 
 18. Payment to be made on condition 199 
 
 19. Repurchase on a condition . .199 
 
xxu 
 
 CONTENTS. 
 
 20. Notice to purchase binding under 
 
 act of parliament . . . 200 
 
 21. Purchase by lessee of underlease, 
 
 or of part 200 
 
 22. Right of tenant for life of lease- 
 
 hold to purchase money . . 200 
 
 23. Purchaser bound by grant of 
 
 stewardship for life . . • ^00 
 
 * SECTION III. 
 
 OF SPECIFIC PEKTOKMANCE. 
 
 1. Specific performance by court of 
 
 review .... • 201 
 
 2. Heir at lawof vendbr bound .201 
 
 3. Infant heir of vendor. — Devisees 
 
 in strict settlement of vendor . 
 
 4. Heir or devisee of vendor after 
 
 decree for sale of debts 
 
 5. Parties to suit trustee after de- 
 
 crees 
 
 6. Parties bound by decree for sale. 
 
 — Vesting order 
 
 7. Orders liable to stamp duty 
 9. Purchaser of any lot may apply 
 
 for vesting order 
 
 10. Tenant in tail. — Provisions by 
 
 statute 
 
 11. Tenantsintailof copyholds. — In- 
 
 fant trustee 
 
 12. Doweress 
 
 13. Joint tenant 
 
 14. Feme covert 
 
 15. Where she has a power 
 
 16. Decree against the husband 
 
 17. Feme covert with separate estate 
 
 purchasing or selling 
 
 18. Lunatic: effect of lunacy on con- 
 
 tract or deposit 
 
 19. Trustees under power . 
 
 20. Infant : contracts : sales 
 
 21. No specific performance of ten- 
 
 ancy"from year to year ; execu- 
 tors 
 
 22. Sale of annuity, stock, &c. . 
 
 23. Discretionary. — Misrepresenta- 
 
 tion by purchaser 
 
 24. Harris v. Kemble 
 
 25. Statements of amount of fine : 
 
 undue advantage 
 
 26. Intoxication .... 
 
 27. Seller in prison for debt 
 
 [xvi] 
 
 201 
 
 . 203 
 
 . 203 
 
 203 
 204 
 
 204 
 
 204 
 
 205 
 205 
 205 
 206 
 206 
 206 
 
 206 
 
 208 
 209 
 209 
 
 209 
 209 
 
 210 
 211 
 
 211 
 212 
 212 
 
 28. 
 
 32. 
 
 33. 
 34. 
 35. 
 59. 
 36. 
 37. 
 
 Seller turning purchaser out of 
 possession .... 212 
 
 Bill filed before the time . . 212 
 
 Where the action is lost. — Dam- 
 ages recoverable at law. — 
 Hardship of sale- upon seller. — 
 Want of competency . . . 212 
 
 Mortgagee with power of sale sell 
 ing after foreclosure . 
 
 Modification of contract 
 
 Uncertainty 
 
 213 
 213 
 213 
 214 
 221 
 214 
 
 S( 21 
 Where part cannot be enforced i 
 
 Purchase of lease or underlease 
 Sale of reversion, rent, tenant, not 
 known : no person liable to cove- 
 nants .... 
 Suppressio veri: suggestio falsi 
 Mistake .... 
 Surprise .... 
 Fraudulent misrepresentation 
 Sale by agent contrary to author- 
 ity ... . . 216 
 Breach of trust .... 216 
 Discretionary power in trustees. 
 
 — Sale by tenant for life 
 Seller with an interest selling as 
 
 agent to trustee . 
 Want of title. — Stranger selling 
 
 — No mutuality 
 Where title can be made good 
 Purchaser may accept the title 
 Seller not compelled to settle an- 
 other estate .... 218 
 
 Equitable title . . . .218 
 Purchaser nominal contractor .218 
 , Philips and Duke of Buckingham 219 
 Seller pretending to be an agent . 219 
 Sale of annuity for lives not named 220 
 
 214 
 214 
 215 
 215 
 
 216 
 
 216 
 
 2i7 
 
 217 
 218 
 218 
 
CONTENTS. 
 
 xxni 
 
 55. Specific performance where no 
 
 action will lie . . . . 220 
 
 57. Penalty : specific performance . 220 
 
 58. Penalty: action . . . .221 
 
 60. Powers of common law courts 
 in the nature of equitable juris- 
 diction. — Juries in equity and 
 equitable j urisdictlon . . 221 
 
 SECTION IV. 
 
 Of THE REMEDIES FOR A BREACH OP CONTRACT. 
 
 ' /. The remedy in equity. 
 
 1. Vendor's right .... 224 
 
 2. Special case under act . . . 224 
 
 3. Claim under orders abolished . 225 
 
 4. Abolition of masters : chamber 
 
 business : new modes of procedure 225 
 
 5. Appeals from chief clerk . . 226 
 
 6. Injunction at law : damages . 227 
 
 Directions on specific perform- 
 
 7. ance : proceedings at cham- 
 
 8. ■< hers on title : furtlier direc- 
 
 9. tions : decree discovery : 
 documents 
 
 *10. Decree on motion 
 
 11. Injunction to prevent injury 
 
 12. Reference of title 
 13. 
 
 Purchase money ordered into 
 court .... 
 
 14. 
 15. 
 16. 
 
 18 
 
 {Seller ordered to pay in deposit. 
 —IV 
 
 231 
 
 ■Multifariousness : sale in lot^ ' 
 
 20. Keceivers, agents not proper par- 
 
 ties 
 
 21. Nor adverse claimants. — Mort- 
 
 gagee not a proper party . 
 23. Plaintiflf proving different agree- 
 ment 
 
 25. Upon dismissal of bill, no ac- 
 
 count 
 
 26. Damages to purchaser: no com 
 - pensation for defective title 
 ) Damages under 21 & 22 Vict. c. 
 ) 27 ' . 
 No compensation after contract 
 
 completed 235 
 
 30. New defence by purchaser . . 235 
 
 27, 
 28, 
 29, 
 
 231 
 
 232 
 
 232 
 
 233 
 
 233 
 233 
 234 
 
 31. Seller cutting ornamental timber 
 
 pending suit .... 235 
 
 //. The remedy at law. 
 Action by purchaser for fraud 
 
 after decree .... 235 
 Party having waived, cannot 
 
 bring action after decree . . 235 
 Nor where bill dismissed for want 
 
 of title 235 
 
 Actions by parties after bill dis- 
 missed 235 
 
 For costs 236 
 
 A second action not allowed . 236 
 
 ( 236 
 I 237 
 
 Money had and received 
 
 No damages for loss of bargain . 237 
 Loss by selling out of the funds . 237 
 Interest on deposit . . . 237 
 Expenses of investigating title . 237 
 Particulars of fact and law . . 238 
 Extent of damages to seller . 238 
 Action by heir or executor of, 
 
 purchaser 238 
 
 Delivery of agreement to be 
 
 stamped 238 
 
 Agreement by letters, one stamp 239 
 Mutual covenants . . . 239 
 Seller to execute conveyance be- 
 fore action . . . . 239 
 When price is payable . . 240 
 Purchaser to tender conveyance 
 
 and purchase money . . . 241 
 Unless there is a bad title, or 
 seller has resold . . . 241 
 
 Ne exeat 241 
 
 Mandamus : specific performance 
 
 atlaw 24a 
 
 [xvii] 
 
XXIV 
 
 CONTENTS. 
 
 SECTION V. 
 
 OF nESCINDING AND OP CONFIKMING A CONTRACT. 
 
 1. Notice of rescinding . . . 243 
 
 2. Doctrine of rescinding a contract 243 
 
 g_ f Misrepresentations . . ] „ ' 
 
 i. Concealment of a fact by a pur- 
 chaser 243 
 
 5. Dealing unduly with purchaser . 243 
 
 6. Fraud necessary .... 244 
 
 7. Seller believing his own misrep- 
 
 resentation .... 244 
 9. Rescinding a conveyance for un- 
 reasonableness of price . . 245 
 
 10. For inadequacy .... 245 
 
 11. Because trustee sold to himself . 245 
 
 12. Where by mistake a man bought 
 
 his own estate .... 245 
 
 14. Effect of improperly charging 
 
 fraud . . . . .245 
 
 15. Because defect in title concealed . 246 
 
 16. Where a purchaser by mistake 
 
 gets a larger interest . . . 246 
 
 17. Eviction not necessary to relief . 246 
 IS. Because remainder sold had been 
 
 barred 247 
 
 19. Action of deceit . . . .248 
 
 20. DobcU V. Stevens . . .248 
 
 21. Action for money had and re- 
 
 ceived 248 
 
 22. Fuller ». Wilson . . . .248 
 
 23. Cornfooto.Fowke . . .250 
 
 24. After sale completed, the princi- 
 
 pal not liable for the fraud of 
 his agent 250 
 
 25. Rule in equity .... 251 
 
 26. Purchaser's general remedy . 251 
 87. Acquiescence bars right . 252 
 
 [xviii] 
 
 28. Time enlarged for payment of in- 
 
 terest 252 
 
 29. Limited time to take objection . 252 
 
 30. Confirmation releases right . . 252 
 
 31. Although new circumstance of 
 
 fraud discovered . . . 252 
 
 32. Acquiescence where fraud and 
 
 oppression .... 252 
 * 33. Confirmation where fraud: wheth- 
 er fraudulent transaction can be 
 purged 252 
 
 34. Relief against sub-purchaser . 253 
 
 35. Requisites to valid confirmation . 253 
 
 36. Time a bar to relief . . .253 
 
 37. Concealed fault in mine . . 253 
 
 38. Statutory bar : equitable bar . 253 
 
 39. 1 Profit and loss by stock : in- c 254 
 
 45. ) terest . . . . j 255 
 
 40. Purchaser, how charged . . 254 
 
 41. Occupation rent : improvements. 254 
 
 42. Not interest upon interest 
 
 43. Repairs after notice of defect in 
 
 title .... 
 
 44. Conversion of shop into private 
 
 house 
 
 46. Power of court where bill is dis- 
 
 missed '. 
 
 47. After an injunction : interest 
 
 48. Retransfer of sums after re- 
 
 versal of decree. — No interest 
 upon costs. — Power of court 
 after reversal, and cause re- 
 mitted 
 
 49. Bill dismissed after decree, upon 
 
 defendant's default . 
 
 50. Whether purchase money can be 
 
 followed ■ 256 
 
 254 
 
 254 
 
 254 
 
 JS5 
 £55 
 
 . 255 
 
 255 
 
CONTENTS. 
 
 XXT 
 
 CHAPTER VI. 
 
 OP THE TIME ALLOWED TO COMPLETE THE CONTRACT. 
 
 SECTION I. 
 
 ' OP THE MATERIALITY OF TIME. 
 
 1. Lunar or calendar months . . 257 
 
 2. Time essence of contract at law - 257 
 
 4. Lang v. Gale .... 257 
 
 5. Observations upon it . . , 258 
 
 6. Where no time fixed; rights of 
 
 vendor 258 
 
 7. Waircd at law . . . .259 
 9. Waived or enlarged by writing 
 
 or parol 260 
 
 10. Where not material in equity . 260 
 
 SECTION II. 
 
 OS DELAYS OCCASIONED BY THE NEGLECT OF EITHER PARTY. 
 
 1. Time in equity, a bar. — Diligence 
 
 necessary in equity. — In equity 
 both parties must be active. — 
 Waiver by receipt of abstract 
 after the day .... 260 
 
 2. Where vendor loses his remedy. — 
 
 There must be gross negligence 261 
 
 3. Time required for repairs, or to 
 
 get possession .... 262 
 
 4. EiTect of delay by purchaser. — 
 
 Unwilling purchaser . . 262 
 
 5. Reversion sold : time important . 262 
 
 6. Or if sale is to pay debts, &c. — 
 
 Or by ecclesiastical corporation 262 
 
 7. Abandonment of contract after 
 
 decree 263 
 
 SECTION III. 
 
 OP DELAYS OCCASIONED BY THE STATE OF THE TITLE. 
 
 1. Delay through title not material. 263 
 
 2. Vendor should file a bill. — Pro- 
 
 curing title after filing bill 
 
 3. In equity, time allowed 
 
 4. Purchaser not bound where new 
 
 suit necessfiry. — Or an account 
 of debts to be taken . 
 
 5. Title should be at date of certifi- 
 
 cate 
 
 6. Purchaser proceeding with knowl- 
 
 edge of defect .... 
 
 7. Acceptance of abstract with no- 
 
 tice 
 
 8. Dormant treaty .... 
 
 9. Title, too late after purchaser has 
 
 abandoned. — Delay in filing a 
 bill 
 
 10. Waiver of time by vendor . 
 
 1 1 . By purchaser, and new d?lay 
 
 263 
 264 
 
 264 
 
 265 
 
 265 
 
 265 
 266 
 
 266 
 266 
 266 
 
 12. Vendor may rescind contract 
 
 where money cannot be paid . 266 
 
 13. Time in equity may be essence of 
 
 contract 268 
 
 14. Time made of the essence against 
 
 the purchaser : delay by the 
 vendor ..... 268 
 * 15. When not of essence, time may 
 
 be fixed by notice . . . 268 
 
 16. Parkin v. Thorold . . .269 
 
 17. Roberts u. Berry . . . .270 
 
 18. Time of the essence, from the na- 
 
 ture of the property . . . 271 
 
 19. Time for deliVery of objections : 
 
 means to perfect abstract . . 271 
 
 20. Reference as to time . . .271 
 
 21. Waiver of time in payment con- 
 
 fined to one instalment . . 271 
 
 22. Rule in equity where no time 
 
 limited 271 
 
 [xix] 
 
XXVI 
 
 CONTENTS. 
 
 CHAPTER VII. 
 
 OF THE CONSIDERATION. 
 
 SECTION I. 
 
 OF UNSEASONABLE AND INADEQUATE CONSIDERATIONS. 
 
 1. Ufiveasonable price, yet specific 
 
 performance .... 272 
 
 2. Unless there be fraud or conceal- 
 
 ment '. 273 
 
 3. Or there is gross inadequacy. — 
 
 Fall in value immaterial . . 273 
 
 4. Purchaser seldom relieved after 
 
 conveyance .... 273 
 
 5. Inadequacy of price no bar. — 
 
 Sale by auction .... 273 
 
 6. Life annuity .... 273 
 
 7. Concealment by purchaser . . 274 
 9. Misrepresentation by purchaser . 274 
 
 10. Both parties ignorant of value . 274 
 
 12. Seller seldom relieved a ter con- 
 
 veyance : gross inadequacy . 275 
 
 13. Unless ignorant of right, and 
 
 purchaser aware of it. — Or ad- 
 vantage taken of distress. — 
 Additional consideration of love 
 and affection .... 275 
 
 14. Heir dealing for expectancy fa- 
 
 vored 276 
 
 15. Although unprovided for . 276 
 
 16. Purchaser to prove adequacy . 276 
 
 17. Dealings between father and sou . 276 
 
 18. Sellers of reversions not heirs. — 
 
 Bulk of estate sold reversionary 277 
 
 19. Loan under mask of training: 
 
 King V. Hamlet . ' . . 277 
 
 20. Where sale of reversion valid. — 
 
 Gowland u, De Faria ; value 
 by the tables, and market price 277 
 
 21. Upon private sale of reversion, 
 
 full value reqfiired . . . 278 
 Review of the authorities . . 279 
 Evidence of surveyors . . . 284 
 Sale by auction valid — or where 
 
 person in possession joins . . 284 
 Where contingency cannot be 
 
 valued 285 
 
 Misstatement of consideration . 285 
 How adequacy to be shown . 286 
 Delay and c"onfirmation . . 286 
 Sale set aside, upon what terms . 286 
 Improvements allowed for . . 287 
 Price to be fixed by arbitrators. — 
 
 Cannot delegate authority . 287 
 Where court will fix the price . 287 
 Not where parties chosen. — Um- 
 pire 287 
 
 Appointment to be communicated 288 
 Failure by arbitration : death. — 
 Nomination of arbitrator can- 
 not be compelled . . . 288 
 Where award after death of party 
 
 binding 288 
 
 Acquiescence in informal award. 
 — Injunction refused, where au- 
 thority revoked .... 289 
 Statutory aids to arbitraments . 289 
 Right to appoint new arbitrators 289 
 Right to appoint an umpire . . 290 
 Attachment: action . . . 290 
 Sale for fixed sum, with contin- 
 gent advantage .... 290 
 
 SECTION II. 
 
 OF THE FAILURE OF THE CONSIDEEATION EEF.OKE THE CONVETANCE. 
 
 1. Purchaser to bear loss by fire, &c., 
 
 after contract .... 291 
 
 2. Not where purchase under decree 
 
 not confirmed absolute . . 292 
 
 3. After confirmation, liable for con- 
 sequences of house falling , . 292 
 
 4- i " - (292 
 
 294 
 
 ' I Purchaser entitled to benefit 
 
CONTENTS. 
 
 xxvu 
 
 5. Validity of title . . . .292 
 
 6. Wjvill V. Bishop of Exoter ; pres- 
 
 entation . . . . 292 
 
 7. Deeds destroyed by fire . . 294 
 * 8. Lives dropping in . . . 294 
 9. Sale for life annuity : purchaser 
 
 ■entitled though life drops . . 2^4 
 
 10. 
 
 11, 
 
 12. 
 
 13. 
 
 Necessity of payment, or tender 
 
 of payment due 
 Where seller may retain estate 
 
 and purchase money . 
 Sale of life annuity enforced 
 
 though life drops 
 Seller to become tenant 
 
 294 
 
 295 
 
 296 
 297 
 
 CHAPTER Vlll. 
 
 OF THE PARTIAL EXECUTION OF A CONTRACT, WHERE A VENDOR HAS 
 NOT THE INTEREST WHICH HE PRETENDED TO SELL : AND OF DEFECTS 
 IN THE QUANTITY AND QUALITY OF THE ESTATE. 
 
 SECTION I. 
 WnEEE THE TENDOK HAS NOT THE INTEREST WHICH HE SOLD. 
 
 Sale of lease for more years than 
 seller has . . . ' . 
 
 10. 
 
 11. 
 
 12. 
 
 13. 
 
 14. 
 15. 
 16. 
 
 17. 
 
 18. 
 
 298 
 298 
 
 j Substantial statement sufficient . 
 
 Small deficiency of term : sale 
 good in equity .... 299 
 
 Misrepresentation . . . 299 
 
 Effec: of suit after sale, to rectify 
 the lease sold .... 299 
 
 Underlease sold as original lease . 300 
 
 Whether purchaser of old lease 
 bound to take a new one : pur- 
 chaser's knowledge . . . 300 
 
 Or seller to grant underlease who 
 sold the whole lease . . . 301 
 
 Where purchaser may object to 
 liability as assignee . . . 301 
 
 Rent and interest on sale of lease- 
 holds 302 
 
 Purchaser of freehold not bound 
 to take leaseholds ., . . 302 
 
 Eight of water .... 302 
 
 Nor copyhold for freehold . . 303 
 
 But seller selling freehold or copy- 
 hold bound .... 303 
 
 Purchaser of copyhold not bound 
 to take freehold .... 303 
 
 Sale partly freehold and partly 
 leasehold . , . . t 303 
 
 303 
 
 304 
 
 . 304 
 
 304 
 
 •305 
 
 20. Seller obtaining a renewed lease 
 
 after the contract 
 
 21. j Purchaser proceeding after no- 
 
 22. ) tice of tenure 
 23-. Where seller has only partial in- 
 terests 
 
 24. Reversionary interests not forced 
 
 upon purchaser of possession . 
 
 25. ) Purchaser entitled to partial in- 1 
 27. ) terests : sale of fee in possession ! 
 
 26. Compensation for roads not made 305 
 
 28. Dale v. Lister . . . . 306 
 
 29. Milligan v. Cooke . . .306 
 
 30. Indemnity not compelled . . 306 
 
 31. Contract upon mistake of interests 307. 
 
 32. Lawrenson v. Butler . . . 307 
 
 33. Parol agreement by tenant for life 307 
 
 34. Sale by tenant for life, &c., not 
 
 partially enforced against pur- 
 chaser 308 
 
 36. Lord Eldon's opinion of pur- 
 
 chaser's right against seller . 308 
 
 37. Thomas' u. Dering : right denied 308 
 
 38. Remainder-man selling fee in pos- 
 
 session, bound 310 
 
 39. Trustees selling contrary to obli- 
 
 gation 310 
 
 40. Effect of expenditure by purchaser 310 
 
 41. Misrepresentation by purchaser . 310 
 
 [XX] 
 
XXVIU 
 
 CONTENTS. 
 
 42. Void lease 311 
 
 43. Rights incapable of compensation 311 
 
 44. Notice to purchaser . . .311 
 
 45. Sale of advowson : charges for 
 
 Queen Anne's bounty . .311 
 
 46. Acquiescence by purchaser . .311 
 
 47. Right of common not disclosed. — 
 
 Limited right, and unlimited 
 
 sold. — Sheepwalk represented 
 as freehold . . . .311 
 
 48. Right to dig mines. — Easements 312 
 
 49. Charge of repairs of chancel . 312 
 
 50. Fee-farm rent : at law . . . 312 
 
 51. Quit- rent: in equity. — Rent- 
 
 charge in equity . . . 312 
 
 52. No indemnity . . . .313 
 
 53. Quit-rents less than stated . . 313 
 
 "SECTION II. 
 
 OF WANT OF TITLE TO A PART OK TO A SHAEE OF THE ESTATE. 
 
 9. 
 10. 
 II. 
 .12. 
 
 13. 
 14. 
 
 Mistake as to what is sold. — Un- 
 certain property . . . 314 
 
 Want of title to part fatal at law 
 -^ separate valuations . . 314 
 
 Enforced partially against pur- 
 chaser where part small : not 
 after sale vacated . . .315 
 
 Want of title to approach. — Con- 
 dition 315 
 
 Want of title to strip between the 
 house and road . . . .315 
 
 Sale of house and wharf . .315 
 
 Not binding on purchaser where 
 portion large. — Purchaser's 
 right against seller where no 
 title to large part . . .316 
 
 f Not bound to take shares . .3316 
 
 But may elect to do so . .317 
 
 Right reserved to rescind If want 
 
 of title 317 
 
 Wheatley v. Blade, semble against 
 
 purchaser's right to shares .317 
 Jones ti. Evans. Croome v. Led- 
 
 iard. Want of title to shares 
 
 or part 318 
 
 Contract by one tenant in common 318 
 Mutual contracts . . . 318 
 
 Lease containing more than held 
 
 under it 319 
 
 Mistake in omitting part corrected 
 
 after conveyance . . . 319 
 Sale in lots good as to those with 
 
 title 319 
 
 Unless complicated with the rest. — 
 
 Right of common . . . 319 
 Rule acted upon at law . . 319 
 Right of way .... 320 
 Lord Kcnyon's doctrine. — The 
 
 present rule .... 320 
 Where the seller has not all the 
 
 tithes he sells .... 321 
 ) Where the estate is not tithe ( 321 
 
 ) free j 322 
 
 Commutation of tithes by statute 322 
 Land tax and titlie renteharge . 322 
 Purchaser freed from land tax 
 redeemed, where conditions am- 
 biguous 322 
 
 Evidence of redemption . .323 
 Purchaser's right bound by his 
 conduct . . . . . 393 
 
 SECTION IIL 
 
 OF DEFECTS IN THE QUANTITY OF THE ESTATE. 
 
 1. Compensation for deficiency . 324 
 
 2. Though not sold by the acre . 324 
 
 3. Lands conveyed by estimation . 324 
 
 [xxi] 
 
 4. Condition excluding compensa- 
 
 tion 324 
 
 5. Contract for sale by estimation. 
 
CONTENTS. 
 
 XXIX 
 
 By estimation, more or less. — 
 Excess. — Deficiency not to be 
 answered for . . . . 324 
 
 6. Fraudulent statement . . . 325 
 
 7. Purchaser's knowledge of estate . 325 
 
 8. About the quantity stated : plan 325 
 
 9. Principle of abatement . . 325 
 
 10. Where quantity .greatly exceeds 
 
 that sold 325 
 
 11. Sale not in the lump . . .326 
 
 12. Lands shown to purchaser but 
 
 excepted in conveyance . . 326 
 
 13. Sale by particular, and part 
 
 omitted 326 
 
 14. Where more is conveyed than was 
 
 sold 326 
 
 16. Contract not evidence as to what 
 
 passes by the conveyance . . 326 
 
 17. General description : copyholds . 326 
 
 18. Contents of an acre : old law . 326 
 
 19. Customary acres .... 327 
 
 20. Contents of an acre : new law . 327 
 
 21. Contracts, how affected by statute 327 
 
 SECTION IV. 
 
 OP DEFECTS IN THE QUALITY OF THE ESTATE. 
 
 . > Caveat emptor 
 
 I 328 
 ) 333 
 . 328 
 . 328 
 . 328 
 . 330 
 
 21 
 
 3. Right of way not stated 
 
 4. Legge V. Croker 
 
 5. Gibson V. D'Este 
 
 6. Want of right of way . 
 
 7. Sale after contract with railway . 330 
 
 8. Uncommonly rich water meadow 330 
 
 9. Kesidence for a respectable family 330 
 
 10. House in different county. — Where 
 
 house will not answer for pur- 
 pose intended .... 330 
 
 11. Where purchaser supposed con- 
 
 veyance would operate differ- 
 ently 330 
 
 • 12. Ealse description . . . 331 
 
 13. Of state of repair . . . .331 
 
 14. Notice to repair not disclosed .-331 
 
 15. Where purchaser knows the de- 
 
 scription is false . . .331 
 
 16. Description not binding, if pur- 
 
 chaser have not full knowledge 332 
 
 17. Statement of annual produce of 
 
 woods 332 
 
 18. Error for and against the seller . 332 
 
 19. Eepairs not subject of compensa- 
 
 tion when possession required. — 
 Cutting down ornamental or or- 
 dinary timber after contract 
 
 20. Faults in a mine do not avoid the 
 
 contract .... 
 
 21. Latent defect which purchaser 
 
 cannot discover. — Sale with all 
 faults 
 
 22. The scienter .... 
 
 23. In the case of title 
 
 24. Concealment of defect . 
 
 25. Purchaser waiving his right 
 
 332 
 
 333 
 
 333 
 334 
 334 
 335 
 335 
 
 CHAPTER IX. 
 
 or AGREEMENTS TO ACCEPt A TITLE, AND OF WAIVING OBJECTIONS TO 
 TITLE, AND OP THE REMEDIES WHERE THE TITLE IS IN DISPUTE. 
 
 SECTION L 
 
 OF AGREEMENTS TO ACCEPT A TITLE, AND OF WAIVING OBJECTIONS. 
 
 Bight to good title, although seller 
 claims under purchaser . . 336 
 
 2. General right to good title. — 
 Condition to accept the title as 
 itis . . . . . , 337 
 
 [xxii] 
 
XXX 
 
 CONTENTS. 
 
 3. Must be fi-ee from ambiguity . 338 
 
 4. Stipulation as to title, where no 
 
 representative of legal estate 
 
 5. Sale under power without the no- 
 
 tice required .... 
 
 6. Preemption : title 
 
 7. Clarke v. Faux .... 
 
 8. Corrall v. Cuttell 
 
 9. Sale of benefit of proposal : tolls. 
 
 10. Parties bound to fair performance 
 
 of conditions .... 
 
 11. Contract to be void if purchaser's 
 
 counsel object to title 
 
 12. Solicitor buying from client with 
 
 a title which he accepted . 
 
 13. Possession a waiver of objections. 
 
 — Should be put in issue 
 
 15. Waiver a question of fact. — 
 
 Forcible possession by pur- 
 chaser 
 
 16. Right of sporting first disclosed 
 
 in abstract .... 
 
 17. Possession with long delay, ». 
 
 waiver 
 
 18. Although purchaser swear he did 
 
 not mean it 
 
 19. Lease by >• purchaser to one in 
 
 possession .... 
 
 20. Possession under contract no 
 
 waiver ..... 
 
 21. Or with vendor's concurrence 
 23. And acts of ownership do not 
 
 bind . .... 
 
 338 
 
 339 
 339 
 339 
 340 
 341 
 
 341 
 
 341 
 
 342 
 
 342 
 
 342 
 
 343 
 
 343 
 
 . 343 
 
 343 
 
 343 
 343 
 
 344 
 
 24. Reselling where a waiver . . 344 
 26. Or preparation of conveyance . 345 
 
 28. Notice of limited title binding . 345 
 
 29. Purchaser not bound by his coun- 
 
 sel's opinion .... 345 
 
 30. JJor by his solicitor's statement 
 
 to counsel, if seller file a bill. — 
 Waiver by counsel . . . 345 
 
 31. Objection taken when too late to 
 
 be remedied, a device . . 346 
 
 32. Purchaser accepting abstract may 
 
 prove title bad .... 346 
 
 33. Waiver of objections to title, but 
 
 not to proof . . . 346 
 
 34. Acquiescence a waiver . . 346 
 
 37. Possession ; interest and costs . 347 
 
 38. Seller turning purchasers out 
 
 of possession has no equity. — 
 Waiver restricted by subse- 
 quent acts .... 347 
 
 40. Waiver, and then bad title pro- 
 
 duced 347 
 
 41. Purchaser rejecting title, should 
 
 rplinquish possession . . 347 
 
 42. Purchaser keeping back one ob- 
 
 jection ..... 347 
 
 43. Opinion taken on title, no waiver 
 
 of collateral objection . . 348 
 
 44. Authority of agent to waive . 348 
 
 45. Letter by solicitor's clerk, with- 
 
 out authority . . . 348 
 
 * SECTION II. 
 
 OP TITLE : IN SUITS IN EQUITY. 
 
 1. Seller with equitable estate . . 349 
 
 2. Doubtful title .... 349 
 
 3. Reference of title . . . 349 
 
 4. Reference buck where new fact . 349 
 
 5. Or where seller can clear up ob- 
 
 jections 350 
 
 6. Objections to report of title . 350 
 
 7. Purchaser plain tiif, and there is 
 
 no title 35] 
 
 8. Statement in bill of want of title 351 
 
 9. Purchaser accepting a bad title ; 
 
 costs 351 
 
 [xxiii] 
 
 10. Bad title appearing on plaintiff's 
 
 examination .... 351 
 
 11. Objections considered by court . 351 
 
 12. Reference of title upon motion . 351 
 
 13. Unless other questions raised . 352 
 
 14. Not frivolous .... 352 
 
 15. Vendor's delay. — Dismissal of 
 
 bill . .... 352 
 
 16. Purchaser after answer enforced 
 
 may make any defence, although 
 title referred .... 352 
 
CONTENTS. 
 
 XXXI 
 
 17. Objections under the new prac- 
 
 tice 352 
 
 18. "What may he referred . . .352 
 
 19. Decree without reference where 
 
 delay .353 
 
 20. Deposit ordered into court . . 353 
 
 21. New evidence upon the reference . 353 
 
 22. Report or certificate wliere legal 
 
 estate outstanding . . . 353 
 
 23. Pendency of a suit for the estate . 354 
 
 24. Report of conditional title bad . 354 
 
 25. "Where exception should stand 
 
 over 354 
 
 26. Surprise upon purchaser r . 354 
 
 27. Purchaser not to file a. cross-bill 
 
 if title bad . . . .354 
 
 28. Opinion of conveyancing counsel 354 
 
 29. Bad title, no decree for purchaser 354 
 
 30. Purchaser may take bad title . 355 
 
 31. Seller obtaining good title after 
 
 ' conveyance .... 355 
 
 32. Purchaser buying in the adverse 
 
 title . . . . ,. .355 
 
 33. Man buying his own estate . . 355 
 
 34. Sale of a remainder already 
 
 barred 355 
 
 35. Purchaser neglecting to examine 
 
 title 356 
 
 36. Sale of pretended title. — Sale of 
 
 estate contracted for, good . 356 
 
 37. Sale of estate if it shall be de- 
 
 vised to seller, valid . . . 356 
 
 38. Sale for a lottery illegal : pur- 
 
 chase money .... 356 
 
 39. Conveyance to multiply votes . 356 
 
 40. Champerty. — Maintenance . 357 
 
 41. Sale of advowson whilst incum- 
 
 bent in extremis . . . 357 
 
 42. Devise of advowson to sell after 
 
 I death of incumbent . . . 357 
 
 43. Slander of title . . . .357 
 
 SECTION IIL 
 
 OP TITLE : IN ACTIONS AT LAW. 
 
 1. Injunction until master's report 
 
 of title 358 
 
 2. Title to be proved bad . . 358 
 
 3. ( Damages. — None for loss of ) 358 
 
 4. I bargain . . . . ) 359 
 
 ^- i Sikes w. "Wild . . . \^^'^ 
 
 6. ) 1 361 
 
 7. "What expenses may be recovered 361 
 
 8. No damages for loss by the funds 362 
 
 9. Interest on deposit recoverable . 362 
 10. And expenses of investigating 
 
 title 362 
 
 11. But not as money had and re- 
 
 ceived, &c. .... 362 
 
 12. Costs of survey .... 362 
 
 14. Right of action in purchaser's 
 
 personal representative . . 363 
 
 15. Costs as between attorney and 
 
 client 363 
 
 16. Particular of objections of law . 363 
 
 17. Averments'by seller of title . . 363 
 
 18. Tehderof conveyance unnecessary 
 
 if title bad .... 363 
 
 19. Seller restrained from bringing 
 
 an action after bill dismissed . 364 
 
 * CHAPTER X. 
 
 OF THE TITLE WHICH A PURCHASER MAY REQUIRE. 
 SECTION I. 
 
 OF THE ROOT OP THE TITLE, AND OP THE TITLE TO VARIOUS DESCRIPTIONS OP 
 
 PKOPEKTY. 
 
 1. Sixty years : old rule . 
 
 2. Not altered by new law 
 
 365 I 3. ) "Where earlier title can be re- 
 365 I 4. ) quired .... 
 [xxivj 
 
 366 
 
XXXll 
 
 CONTENTS. 
 
 7. 
 
 8. 
 
 9. 
 10. 
 11. 
 12. 
 13. 
 
 14. 
 15. 
 
 16. 
 
 'l7. 
 18. 
 19. 
 20. 
 21. 
 22. 
 23. 
 24. 
 
 25. 
 26. 
 27. 
 
 28. 
 
 29. 
 30. 
 31. 
 32. 
 
 33. 
 
 34. 
 35. 
 36. 
 
 Proof of seisin .... 366 
 . New statute of limitations . . 366 
 , Bill for shortening the period . 366 
 
 \ Lay tithes 367 
 
 Modus 367 
 
 , Advowson 367 
 
 Lessor's title must be produced . 367 
 Unless the purchaser knew it 
 
 could not be produced . . 368 
 Or he agree to waive it . ■ 368 
 A purchaser may show the title 
 
 is bad aliunde .... 369 
 Where the seller and purchaser 
 
 have a common title . . . 369 
 Bishop's title not required . . 369 
 Root of lessor's title . . . 369 
 'Renewable leaseholds . . . 369 
 Root of that title . . .369 
 Leasehold title .... 370 
 Relief against non-insurance . 371 
 In favor of purchasers . . . 371 
 Lessor's consent to be obtained by 
 
 seller. — Covenants broken . 371 
 
 Equitable title . . . . 
 
 Title to enfranchised copyhold . 
 
 To estate taken in exchange 
 
 To allotments under inclosure 
 acts 
 
 To exchanges under inclosurcs . 
 
 Title to new inclosures 
 
 To exchanges in common fields . 
 
 To allotments where made gen- 
 erally . . .' 
 
 Sale before award — liability to 
 fencing, planting, &c. 
 
 Where award carries the lega] 
 estate .... 
 
 '} 
 
 372 
 372 
 372 
 
 372 
 373 
 373 
 373 
 
 . 373 
 
 373 
 
 374 
 
 37. Cautions to be observed in pur- 
 
 chasing allotments. — Exchanges 375 
 
 38. Possession before the award . 375 
 
 39. Where purchaser not entitled to 
 
 allotment 
 
 40. Title to strips of land . 
 
 41. To encroachments 
 
 42. To casements .... 
 
 43. To pews with a messuage . 
 
 44. To mining shares 
 
 45. To railway shares : calls 
 
 46. Preference railway shares 
 
 47. Transfer of railway shares . 
 
 48. Liability of railway directors 
 
 49. Tenant in common selling to co- 
 
 tenant must produce elder title 
 to entirety .... 
 
 50. Assignees of bankrupt must pro- 
 
 duce a good title 
 
 51. Title of building societies . 
 51a. Operation of limited conditions 
 
 of sale .... 
 
 52. Purchase of chose in action — 
 
 notice to be given . . . 378 
 
 53. Notice necessary against subse- 
 
 375 
 375 
 376 
 376 
 376 
 376 
 376 
 377 
 377 
 377 
 
 377 
 
 377 
 377 
 
 377 
 
 quent insolvency 
 
 54. What notice necessary 
 
 55 ) 
 ■ > Effect of stop orders . 
 
 57. Verbal notice .... 
 
 58. Notice unnecessary where no' sub 
 
 sequent notice . . . , 
 
 59. Notice to purchaser binding 
 
 60. Does not apply to equity of re- 
 
 demption of estate: railway 
 shares 380 
 
 61. Liabilities of purchaser of chose 
 
 in action . . '. . . . 381 
 
 . 378 
 . 379 
 
 . 379 
 
 . 380 
 
 380 
 380 
 
 SECTION IL 
 
 OF A TITLE WITH AN IKDEMNITT. 
 
 1. Title subject to a charge, bad . 381 
 
 2. Fee-farm rents on estate sold and 
 
 others: title bad. — Purchaser 
 not bound to take indemnity . 381 
 
 3. 1 Power of reentry in lessor not ( 382 
 9. ) a subject of indemnity . 1 384 
 
 4. Like power, sale in lots, and an in- 
 
 demnity to seller . . . 382 
 
contents; 
 
 XXXIU 
 
 *5. Arbitrator cannot award indem- 
 nity 383 
 
 6. Seller not bound to give indemnity 383 
 7. 
 
 8.) 
 
 [ Apportioned rent 
 
 383 
 
 Stipulation for acbange on one 
 lotas an indemnity. — Kepair 
 of chancel .... 384 
 
 9. 
 10. 
 
 11. Nature of indemnity 
 
 . 384 
 
 SECTION III. 
 
 OF DOUBTFUL TITLES. 
 
 1., Title to be sifted . . . .385 
 2. Purchaser favored : cases to 
 courts of law. — Doubtful title 
 not enforced in equity . . 38.5 
 
 ■ i House of Lords adopts the rule \ 
 
 8. S 'I 389 
 
 5. What is a doubtful title . . 387 
 
 6. Doubt whether part sold . . 388 
 
 7. Moody V. "Walters. — Biscoe v. 
 
 Perkins. — Biscoo v. Wilks .388 
 
 9. When appeal should be made to 
 
 D. P 389 
 
 10. Purchaser buying in the adverse 
 
 title 389 
 
 /. Of good and doubtful tides in equity. 
 
 12. Title under destruction of contin- 
 
 gent remainders or statute of 
 limitations, good. — So where 
 crown is barred . . . 389 
 
 13. To strips of land . . .391 
 
 14. Against a Claim for vendor's lien 391 
 
 15. Bare possibility no objection . 392 
 
 16. Nor suggestions : or suspicions . 392 
 
 17. Mines reserved to crown. — Mines 
 
 under common : where no objec- 
 tion 392 
 
 18. But if mines, title bad . .393 
 
 19. Mines reserved to the lord . . 393 
 
 20. Regulations as to planting, &c. . 393 
 
 21. Suspicion of fraud in appointment 
 
 to child 393 
 
 22. Sale by father and child of the 
 
 equitable estate .... 394 
 
 23. Bill filed by adverse claimant 395 
 
 24. Existing right an objection . . 395 
 
 > General description of parcels . 395 
 
 27.^ Outstanding right to be admitted 
 
 to copyholds .... 395 
 VOL. I. c 
 
 28. Effect of notice to second pur- 
 
 chaser 395 
 
 29. Reversion : incumbrances . . 396 
 
 30. Sale under power in mortgage . 396 
 
 31. Powers to sell or mortgage . . 396 
 
 32. Bankruptcy .... 396 
 
 33. Seller's title under a conveyance 
 
 from his son .... 397 
 
 34. 1 Equitable title bought under de- 
 
 35. ) cree valid . . . .397 
 
 37. Not as against sub-purchaser . 397 
 
 38. Purchaser going in before master 398 
 
 39. Infant heir of seller . . .398 
 
 41. Infant trustee acts . . 398 
 
 42. Presujnption of conveyance, or of 
 
 surrender of term . . . 399 
 
 II. Of good and doubtful titles at law. 
 
 43. Good titles at law. — Doubtful 
 
 title not recognized . . . 400 
 
 44. But adverse right fatal . . 400 
 
 45. Equitable objections allowed at 
 
 law 400 
 
 46. Equitable grounds as a defence . 401 
 
 47. Seller must have the legal estate . 401 
 
 48. Sale by executor before deci'ce in 
 
 administration suit . . . 401* 
 
 ///. Titles depending upon questions 
 
 offact. 
 
 46. Fact not admitting of proof. . 401 
 
 50. 1 Deed depending upon extrinsic I 
 
 51. ) circumstances . . ' 
 
 52. Doubt raised by devise of shares 
 
 where entirely sold . . . 402 
 
 53. Nouaille i'. Greenwood . . 402 
 
 55. Title depending upon proof of 
 
 party answering a description . 403 
 
 56. Doubtful reference by codicil to a 
 
 will 403 
 
 [xxv] 
 
 ■402 
 
XXXIV 
 
 CONTENTS. 
 
 57. Construction of ill-penned shifting 
 
 clause : residence . . . 403 
 
 58. Law decided but unsettled . . 403 
 
 59. Jiulgiiicnts : notice . . . 404 
 
 60. Issue upon pedigree 
 
 61. Doubt as to legitimacy 
 63. Doubtful fact at law . 
 
 404 
 404 
 404 
 
 * CHAPTER XL 
 
 OF THE ABSTRACT AND OP THE PEODUCTIOBT OF DEEDS ; OF COVEKANTS 
 TO PRODUCE THEM, AND OF ATTESTED COPIES. 
 
 SECTION I. 
 
 OF PKEPAKING AXD EXAMINING AESTEACTS. 
 
 1. Coij^mencenicnt of abstract 
 
 2. Purchaser entitled to an abstract 406 
 
 3. ) Absirnct of ancient deedscannotl 406 
 5. ) be required . . ( 
 
 4. How it should be written. — How 
 
 headed ..... 
 
 5. What deeds should be abstracted 
 
 6. Printed copies of inelosure act . 
 
 7. Description of parties 
 
 8. Recitals 
 
 9. Witnessing part 
 
 10. Granting part 
 
 11. Parcels. — Map 
 
 12. Exception . 
 
 13. Habendum . 
 
 14. Limitations and uses 
 
 15. Provisoes for cessor 
 
 16. Trusts 
 
 17. Powers 
 
 405 
 
 18 
 
 Covenants . 
 
 . 409 
 
 406 
 
 19 
 
 Executions : attestations 
 
 . 409 
 
 406 
 
 20 
 
 Eeceipt 
 
 . 409 
 
 407 
 
 21. 
 
 Registry 
 
 . 409 
 
 
 22 
 
 Intestacy 
 
 . 409 
 
 406 
 
 23. 
 
 Leasehold title . 
 
 . 409 
 
 407 
 
 24. 
 
 Renewable leaseholds . 
 
 . 410 
 
 407 
 
 25. 
 
 Attendant terms . 
 
 . 410 
 
 407 
 
 26. 
 
 Descent 
 
 . 410 
 
 407 
 
 27. 
 
 Wills .... 
 
 . 410 
 
 408 
 
 28. 
 
 Acts of parliament 
 
 . 410 
 
 408 
 
 29. 
 
 Judgments and crown debts 
 
 . 410 
 
 408 
 
 30. 
 
 Decrees . . . . 
 
 . 410 
 
 408 
 
 31. 
 
 Fiats in bankruptcy 
 
 . 410 
 
 408 
 
 32. 
 
 Liability of seller's solicitor . 
 
 . 411 
 
 408 
 
 33. 
 
 Purchaser's solicitor to exa 
 
 mine 
 
 408 
 
 
 the abstract 
 
 . 411 
 
 408 
 
 34. 
 
 Where examination may b 
 
 e de- 
 
 409 
 
 
 laved . . , . 
 
 . 411 
 
 SECTION IL 
 
 op PEKUSING AESTKACT, 
 
 1 . Perusal at one sitting . . ..412 
 
 3. Notes 412 
 
 4. Opinion book .... 412 
 
 5. Parcels . ... 413 
 
 6. Dates: new laws. . . . 413 
 
 7. Evidence 414 
 
 8. Office copies, extracts, probates, 
 
 &c 414 
 
 9. Pedigree: certificates: receipts . 415 
 10. lltgistry : enrolment : execution : 
 
 attestation .... 415 
 
 [xxvi] 
 
 11. Negative answers , , .415 
 
 12. Searches 416 
 
 13. Court rolls 416 
 
 14. Expense of searches . . 416 
 
 15. Power of attorney . . .417 
 
 16. Evidence 417 
 
 17. Evidence admitted, and how act-ed 
 
 upon 417 
 
 18. Formal evidence .... 417 
 
 19. What formal evidence not required 417 
 
 20. Weight of evidence . . .418 
 
CONTENTS. 
 
 XXXV 
 
 21. Presumptions admitted . .418 
 
 23. Negative evidence . . 418 
 
 23. ) „ ,. ( 418 
 1 1 euigrces . . ■ ■ } 
 
 2.5. i I 420 
 
 24. Recitals . . . .419 
 
 26. Register of l>irtli, &c. . . .420 
 
 27. Powers in 23 & 24 Vict. c. 143 . 420 
 
 28. Presiuiiptions of legitimacy . 421 
 
 29. Title bv descent . . . .421 
 
 gj' I Missing deeds . . | ^^2 
 
 32. Deelarntions in proof of title . 422 
 
 33. Certificate of broker . . . 422 
 
 34. Opinion of convqyancing counsel 422 
 
 35. Counsel's opinion not binding on 
 
 purchaser. Counsel and solic- 
 itors bound to secrecy . . 422 
 
 SECTION III. 
 
 OF THE ABSTEACT, AKD OP COMPARING IT WITH THE DOCUMENTS 
 
 Abstract when complete 
 
 > Although incumbrances exist 
 
 . 423 
 
 2 ) . ) ^'^'^ 
 
 ' > Although incumbrances exist > ^g- 
 
 3. Effect of facts which require evi- 
 dence 424 
 
 5. Whei'e the contest is whether the 
 
 li'giil estate is outstanding. — 
 Where it is admitted . . 425 
 
 6. Tenant in tail need not bar the en- 
 
 tail before completion . . 426 
 * 7. Abstract to show a good title. — 
 
 Exception under conditions . 427 
 
 8. No inquiry in suit whether perfect 427 
 
 9. Acceptance of abstract . . 427 
 
 10. Restricted abstract by contract . 427 
 
 11. Of tlie title of a tenant in com- 
 
 mon 428 
 
 12. For what purposes abstract deliv- 
 
 ered. — Purchaser's property in 
 
 it 428 
 
 13. Right to opinion .... 428 
 
 15. Seller to produce the deeds . . 429 
 
 16. Place for examination . . .429 
 
 17. At a third person's. — At a dis- 
 
 tance, seller to pay expense. — 
 So in sale by court .' . . 430 
 
 18. Agent in London to examine ab- 
 
 stract 430 
 
 19. Southby v. Hutt; verifying ab- 
 
 stract 430 
 
 20. Purchaser not bound to go to rec- 
 
 ord offices 431 
 
 21. Grant from tlie crown: impro- 
 
 priate tithes: tithe rentoharges 431 
 
 22. Notice to purchaser of place of 
 
 production .... 431 
 
 23. Seller having covenant to produce 
 
 deeds must produce them . . 431 
 
 24. Promise to produce deeds . . 431 
 
 25. Deeds burned after examination . 431 
 
 26. Copies of court roll . . . 432 
 
 27. Abstract to be examined before 
 
 purchaser act as owner . . 432 
 
 28. Expense of examination where no 
 
 title 432 
 
 29. Purchaser neglecting to call for 
 
 deeds for examination . . 432 
 
 30. f^xpense of contract includes mak- 
 
 ing out title .... 432 
 
 SECTION IV. 
 
 OP A purchaser's right TO THE DEEDS. 
 
 1. Title deeds go with the inherit- 
 
 ance. — Pledge by seller of con- 
 veyance, an escrow . . . 433 
 
 2. Right of purchaser to follow the 
 
 deeds 434 
 
 3. Deeds left wiih purchaser to pre- 
 
 pare conveyance . . . 434 
 
 4. Sale of part without stipulation . 434 
 
 5. Where seller is under eoven.ant to 
 
 produce 434 
 
 6. Leaving deeds in seller's custody . 435 
 
 7. Arrangement where estate in 
 
 mortgage 435 
 
 8. Deposit of deed, where sufficient . 435 
 
 [xxvii] 
 
XXXVl 
 
 CONTENTS. 
 
 9. Nature of evidence . . . 436 
 10. Assignments lost .... 437 
 H. Lease for a year lost . . . 437 
 
 12. Recitals as evidence . . . 437 
 
 13. Evidence where deeds lost or de- 
 
 stroyed 437 
 
 14. Title without deeds . . .438 
 1.^. Seller to execute new conveyance 
 
 if old one burnt . . . 438 
 16. Whether covenant to produce is 
 within covenant for further as- 
 surance .... 438 
 
 17. Purchaser's rijrht to evidence after 
 
 438 
 438 
 
 conveyance .... 
 
 18. Relieved if fraud, &c. . 
 
 19. Execution of title deeds not to be 
 
 proved ..... 
 
 20. Laythoarp i'. Bryant . 
 
 21. Will to be produced though seller 
 
 heir 
 
 22. Not to be proved against heir 
 
 23. Whether the deeds arc transferred 
 
 with the seisin .... 440 
 
 24. Grant of deeds .... 441 
 
 25. Yea v. Pic'ld . . . .441 
 
 438 
 439 
 
 439 
 439 
 
 SECTION V. 
 
 OF THE PKODUCTIOX OP DEEDS IN EQUITY AND AT LAW. 
 
 1. Settlement relating to property of 
 
 several owners : partition . . 442 
 
 2. Right of purchaser where he has 
 
 no covenant to produce . . 443 
 
 3. Tenants in common, &c. 
 
 4. Holder of deeds becoming mort- 
 
 gagee .... 
 
 5. Tested remainder-man and pur- 
 
 chaser under him . . . 444 
 
 443 
 
 443 
 
 Contingent remainder-man . . 444 
 
 ! Mortgagee in fee under tenant 
 for life, with the deeds . . 444 
 Production of deeds in a suit, 
 where the conveyance is im- 
 peached 444 
 
 Production at law . . . 445 
 Mortgagee conscn ting to sale . 445 
 
 * SECTION VI. 
 
 OF ATTESTED COPIES AND COVENANTS TO PKODUCE DEEDS. 
 
 1. Purchaser entitled to attested 
 
 copies. — Unless on record. — 
 And of them if in seller's cus- 
 tody . . . . ' . .446 
 
 2. Covenant to produce copies of 
 
 court roll. — Cooper v. Emery . 448 
 
 3. Or bargain and sale enrolled . 450 
 
 4. Right to attested copies not ex- 
 
 cluded by agreement to produce 
 deeds 450 
 
 5. Purchaser entitled to covenant to 
 
 produce . . . 450 
 
 6. Who is to covenant . . . 450 
 
 7. When purchaser is to pay the ex- 
 
 pense 451 
 
 8. Purchaser of largest lot . . 451 
 
 [xxvlii] 
 
 9. Covenant by assignees of bank- 
 rupt 452 
 
 10. Negative evidence . . . 452 
 
 11. Equitable right to production in- 
 
 sufficient ..... 452 
 
 12. Seller having only a covenant to 
 
 produce 452 
 
 13. Proviso to determine covenant . 452 
 
 14. Covenant, how framed as to copies 452 
 
 15. What deeds it should comprise . 452 
 
 16. Whether a covenant to produce 
 
 can be enforced under covenant 
 . for further assurance . . . 453 
 
 17. By wliom to be entered into. — 
 
 The covenant runs with the land 
 purchased. — Wheilicr with the 
 land retained. — Rule'in equity . 453 
 
CONTENTS. 
 
 XXXVll 
 
 CHAPTER XII. 
 
 OF THE NEW LAWS OF REAL PROPERTY, AS CONNECTED WITH TITLE. 
 
 SECTION I. 
 
 OP TITLE WITU REFERENCE TO DOWER, DESCENT, AND WILLS. 
 
 /. Of Dower. 
 
 1. Dower of trustee's wife' . . i5^ 
 
 2. Dower of equitable estates . . 456 
 
 3. Eviction of dower lands not now 
 
 material to purchaser . . 457 
 
 4. Exceptions out of new dower act 457 
 
 5. New right of dower. — Husband's 
 
 power over dower by disposi- 
 tion 457 
 
 6. Gifts by will a bar of dower . 458 
 
 7. Covenants binding in equity. — 
 
 Purchaser's inquiry . . . 458 
 
 11. Of Descent. 
 
 8. Descent to be traced from the 
 
 purchaser. — Actual seisin un- 
 necessary 458 
 
 9. Descent to be proved to exclude 
 
 title as purchaser . . . 458 
 
 10. Son of illegitimate father . . 459 
 
 11. Heir, though devisee, to take by 
 
 descent : grantor or his heirs 
 also 459 
 
 12. Descent from brother or sister. — 
 
 Lineal ancestors heirs to issue. 
 — Male line before the female. — 
 Preference of mother of more 
 remote male ancestor . . 459 
 
 13. Half-blood admitted. — Attainder 
 
 not an impediment . . . 459 
 
 14. Limits of act . . . . 460 
 
 15. Possessi'o _/ra(m abolished . . 460 
 
 1 6. Examination of pedigree . .460 
 
 17. Badhamw. Shiel . . . .460 
 
 18. Children born abroad of a mother, 
 
 natural-born subject. — Wife of 
 natural-born subject, &c., nat- 
 uralized 461 
 
 ///. As to Wills. 
 
 19. What may be disposed of by will. 
 
 — Will to speak, when. — Lapsed 
 devises fall into residue. — Copy- 
 hold and leasehold pass with 
 freehold under general devise. — 
 So estates subject to general 
 powers. — Fee passes without 
 words of limitation. — Die with- 
 out issue, &c. — Estates tail, &c. 
 not to lapse .... 462 
 
 20. Infants' wills. — Execution of wills. 
 
 — Revocation and revival of 
 wills 463 
 
 21. Wills of personalty of British 
 
 subjects abroad .... 464 
 
 •SECTION II. 
 
 OP TITLE UNDER TENANT IN TAIL. 
 
 1. New law: 3 &4 Will. 4, c. 74.— 
 Where defects in existing re- 
 coveries are amended. — Ancient 
 demesne. — Court without juris- 
 diction. — Errors apparent from 
 deed amended in fines. — So in 
 recoveries. — How acted upon. — 
 Kecoverios defective rendered 
 valid 464 
 
 2. Tenant in tail can acquire the fee 
 
 simple. — Estates tail in contin- 
 gency or divested. — Confirma- 
 tion of voidable estate 
 
 3. Protector 
 
 4. Where a seller of a remainder may 
 
 bar it 
 
 5. Base fee may still be acquired by 
 
 tenant in tail in remainder 
 [xxix] 
 
 466 
 466 
 
 467 
 
 467 
 
XXXVIU 
 
 CONTENTS. 
 
 6. Power of protector absolute. — 
 
 His consent necessary. — Uncon- 
 trollable. — Consent cannot be 
 revoked. — Married woman's con- 
 sent as protector . . . 467 
 
 7. Contracts by tenant in tail of no 
 
 force, except as against himself 468 
 
 8. IIow insurance is to be enrolled, &c. 
 
 — Married woman tenant in tail 468 
 
 9. Protector how to consent . . 468 
 
 10. Equitable jurisdiction excluded. 
 
 — Equitable estates tail. — Base 
 fee independently of act. — Con- 
 firmation of voidable estate .469 
 
 1 1 . Estates pur autre vie and chattels, 
 excluded 469 
 
 12. Purchaser's title under the act. ^ 
 
 Legal and equitable tenants in 
 tail 469 
 
 13. Of copyholds. — How to convey ; 
 
 consent of protectors. — Where 
 the consent is not by deed . 469 
 
 14. Equitable tenant in tail of copy- 
 
 holds. — Prior purchaser with- 
 out notice protected. — Enrol- 
 ment 470 
 
 15. Power of commissioners of bank- 
 
 rupt over estates tiiil and base 
 fees 471 
 
 16. Consent of protector : bankruptcy 471 
 
 17. Base fee in purchaser enlarged 
 
 by act 471 
 
 18. Where voidable estate confirmed 
 
 by act of commissioner. — Saving 
 of right of a purchaser witliout 
 express notice .... 472 
 
 19. Bankrupt's estate . . . 472 
 
 20. Dispositions by married women. — 
 
 Power of married woman not 
 tenant in tail. — May release 
 right of dower .... 472 
 
 21. Powers: deeds: married women 472 
 
 22. Surrenders of copyholds by mar- 
 
 ried women. — Power to dispense 
 • with luisband's concurrence . 473 
 
 23. Enrolment, &c., of deeds executed 
 
 by her as tenant in tail, protector, 
 
 or owner 473 
 
 24. May disclaim by deed : d!spo.si- 
 
 tion of contingent interests 473 
 
 25. Operation of enrolment. — Con- 
 
 flicting rights of purchasers .473 
 
 SECTION III. 
 
 OF A TITLE BY KON-CLAIM. 
 
 1. Eight extinguished . . . 475 
 
 2. Twenty years a bar . . 476 
 
 3. Meaning of rent in 2d section 477 
 
 4. Quarries, &e 477 
 
 5. Mere possession sufficient . . 477 
 
 6. Eights of the crown and the 
 
 Duchy of Cornwall . . . 477 
 
 7. When time accrues . . .477 
 
 8. When party has been in posses- 
 
 sion. — Where a deceased person 
 ■was last in possession — AVhere 
 a grantor was last in possession. 
 — Trustee of term . . 478 
 
 9. Where any payment has been 
 
 made to a mortgagee . . 479 
 10. Summary. — Twenty years a bar, 
 although case not within the 
 instances stated. — Eent newly 
 created by will . . . 479 
 [xxx] 
 
 11. Eeversionary estate, and no pos- 
 
 session. — Executory devises. — 
 Porfeilure, or breach of con- 
 dition. — Eemnindcr-mrm may 
 wait till possession fall. — Con- 
 enrrent rights .... 479 
 
 12. Administrator .... 480 
 
 13. Tenant at will, possession by . 480 
 
 14. Tenant from year to year with- 
 
 out lease in writing, possession 
 by 481 
 
 15. Tenant under lease at a rent of 
 
 20/., or more, possession by . 481 
 *16. Possession by coparcener, and 
 
 the like, or by heir . . . 481 
 
 17. Acknowledgment of title in 
 
 writing .... 481 
 
 1 8. SavingtS. — Forty years the full 
 
 period 482 
 
CONTENTS. 
 
 XXXIX 
 
 19. Imperfect conveyance by husband 
 
 and wife 482 
 
 20. Forty years not a perfect bar . 483 
 
 21. Bar of tenant in tail bars re- 
 
 mainder. — Where time has run 
 against him. — Where he dies 
 betbre time is out. — Possession 
 under an imperfect assurance by 
 him. — Does not operate retro- 
 spectively. — Base foes, how af- 
 fected. — Voidable fees . . 483 
 
 22. Bars in equity same period as at law: 
 
 express trusts : concealed frauds 484 
 
 23. Charities 485 
 
 24. Charge not a trust . . . 485 
 
 25. Filing a bill. — Appointment of re- 
 
 ceiver. — Acquiescence, &c. . 485 
 
 26. Mortgagor out of possession. — 
 
 Acknowledgment . . . 486 
 
 27. Where mortgagee is tenant for life 486 
 
 28. Time for spiritual and eleemosy- 
 
 nary corporations . . . 486 
 Advon-sons. — One hundred years 
 
 full period 486 
 
 Twenty years a bar of money se- 
 cured upon land, &c., or legacy. 
 
 29. 
 
 30. 
 
 31. 
 
 32. 
 33. 
 34. 
 35. 
 36. 
 
 — Vendor's lien. — Judgment 
 creditor barred .... 487 
 Legacy become a trust. — Judg- 
 ment creditor .... 488 
 
 [ Dower, rent, or interest . . 488 
 
 Judgments 489 
 
 Interest 489 
 
 Moduses or exemptions, thirty 
 years : sixty years. — Corpora- 
 tions sole 489 
 
 Decrees. — What time excluded . 490 
 
 Disabilities 490 
 
 Tithe commutation act . . 490 
 
 C490 
 1 491 
 Eights of common, &c. thirty 
 
 years : sixty years . . . 492 
 Ways, watercourses, twenty years : 
 
 ■ Lights, twenty years 
 
 forty years 
 Time how to be computed 
 
 ::} 
 
 Nature of enjoyment . 
 
 Tenancy for life (1) . 
 Presumption inadmissible 
 Title to a purchaser 
 
 . 492 
 . 492 
 5492 
 i.493 
 . 493 
 . 493 
 . 494 
 
 SECTION IV. 
 
 OF THE HEW LAWS EELA.TIXG TO DEEDS, TERMS OF TEARS, POWEBS, AND OTHEB 
 
 SUBJECTS. 
 
 1. 8 & 9 Vict. c. 106; lease for a 
 
 year : feoffment ; leases, assign- 
 ments, surrenders ; exchange, 
 partiiion : " give,'' or " grant ; " 
 stranger to deed ; indenting deed ; 
 conveyance of contingencies, &c. ; 
 disclaimer by married woman ; 
 contingent remainders saved ; 
 merged reversion 
 
 2. 8 & 9 Viet. c. 112 ; merger of at- 
 
 tendant terms .... 
 
 3. Object of the act . 
 
 4. 12 & 13 Vict. c. 26 ; 13 & 14 Vict. 
 
 c. 17 ; giving validity to certain 
 void leases under powers . . 497 
 
 . 495 
 
 496 
 497 
 
 5. Powers of sale, &c., in court of 
 
 chancery over settled estates : 
 
 19 &20 Vict. K. 120 . . . 498 
 
 6. 23 & 24 Vict. c. 145 ; powers to 
 
 be exercised .... 500 
 
 7. 22 & 23 Vict. u. 35 ; rights of en- 
 
 try 300 
 
 :} 
 
 501 
 
 8. 'I lleliefagainst forfeiture for non- 
 
 9. ) insurance 
 
 10. Security to purchasers against 
 
 such forfeiture .... 501 
 
 11. Partial operation of release of rent- 
 
 charge orjudgment . . . 501 
 
 12. Powers by deed, how to bo exe- 
 
 cuted 501 
 
 (1) This second 45 should have been placitum46. ' The numbers of the three pi-evious 
 p lacita in p. 475 require correction. 
 
CONTENTS. 
 
 13. Belief from invalid execution of 
 
 power of sale ; timber 
 
 14. Devises charged with debts or leg- 
 
 acies ; purchasers 
 
 Dcscentwhen purchaser's heirs 
 fail; assignment to asssignor 
 and others; registry of crown 
 debts; writs of execution 
 necessary to bind purchasers 
 
 502 
 
 502 
 
 502 
 504 
 
 16. Punishment for concealment of 
 
 settlements, &c. . . . 503 
 
 17. 23 & 2i Vict. t. 38; administra- 
 
 tion of assets : conditions ; scin- 
 tilla juris; bar of claims to per- 
 sonal estate; investment of trust 
 money ..... 504 
 
 18. 18 & 19 Vict. c. 43; power of in- 
 fants to make settlements . . 504 
 
 » SECTION V. 
 
 OP ACQUIKING AND REGISTEKIUO AN INDEFEASIBLE TITLE. 
 
 9. 
 10. 
 11. 
 12. 
 
 13. 
 
 14. 
 15. 
 
 16. 
 
 17. 
 
 25 & 26 Vict. eh. 53 & ch. 67, 
 for enabling the declaration of 
 an indefeasible title, and the / 
 registration thereof; observa- 
 tions on the acts. Provisions of 
 the acts ; Istch. 53 . . . 505 
 
 Eegistry of title : who may apply 507 
 
 Examination of title . 
 
 Preparations for registration 
 
 Advertisements: notices 
 
 When registry is to take place; 
 four registers. — What is to be 
 registered 
 
 Powers of registrar 
 
 Title acquired — indefeasible upon 
 sale or mortgage 
 
 Registration without an indefea- 
 sible title .... 
 
 Leaseholds may be registered 
 
 Wiiat are not incumbrances 
 
 Entry of conditions on register . 
 
 Kegistration of title acquired un- 
 der eh. 67 
 
 Once on the register, every act or 
 devolution must be registered ; 
 power to remove title from the 
 registry . . . . 
 
 Caveats ; cautions ; injunctions . 
 
 Court of chancery may sell with 
 indefeasible title 
 
 Modes of transfer; unregistered 
 deeds void against subsequently 
 registered deeds of purchasers 
 for value ; operation of deposit 
 of land certificates . 
 
 Land certificates .... 
 [xxxi] 
 
 507 
 507 
 508 
 
 508 
 509 
 
 509 
 
 509 
 509 
 509 
 509 
 
 509 
 
 510 
 510 
 
 510 
 
 510 
 510 
 
 18. Court of chancery to have the 
 
 powers of trustee act of 1850, 
 &e 511 
 
 19. Land Registry Office; registries 
 
 of Middlesex and York . .511 
 
 20. Application to the court of chan- 
 
 cery ; appeals; disabilities; costs 511 
 
 21. Punishment for false statements, 
 
 &c. 511 
 
 22. Eegistry, metropolitan . .511 
 
 II. Provisions of ch. 67. 
 
 23. Court of chancery may confer an 
 
 indefeasible title under ch. 67 . 511 
 
 24. Who may apply i'or such a title . 512 
 
 25. Interference of registrar under 
 
 ch. 53 512 
 
 26. When the title may be investi- 
 
 gated 512 
 
 27. When the indefeasible title is to 
 
 be declared . . . .512 
 
 28. Notices ; objections ; declaration 
 
 of title ; appeal. — The title may 
 
 be registered under ch. .53 . . 512 
 
 29. Indefeasible title is in favor of 
 
 purchasers . . . .513 
 
 30. Appeals . . ". . .513 
 
 31. Where purchase money shall be 
 
 deemed trust money . . . 513 
 
 32. Disabilities. — Penalties . . 513 
 
 33. 34. Observations on the bill for 
 
 shortening the time of limitation 
 in favor of purchasers, which 
 passed the Lords, but was 
 dropped in the Commons 514, 515 
 
CONTENTS. 
 
 xli 
 
 CHAPTER XIII. 
 
 OF SEARCHING FOR INCUMBRANCES AND OF RELIEF AGAINST INCUM- 
 BRANCES. 
 
 SECTION I. 
 
 OF SEARCHING FOR INCUMBKANCES. 
 
 1. Judgments must be stated in ab- 
 
 stracts 517 
 
 2. Under the old law, judgments 
 
 after payment of purchase 
 money not binding on purchaser 517 
 
 3. Forth K. Duke of Norfolk . .517 
 
 4. Operation of contract on judg- 
 
 ments under old law . . . 518 
 
 5. Judgments bound estate con- 
 
 tracted for .... 518 
 
 6. Mortgagee without notice buying 
 
 equity of redemption not bound 
 byjudgmcnts .... 518 
 
 7. Trust estate, how far liable : trust 
 
 for sale ; purchaser not liable : 
 Lodge u. Lyseley : Foster v. 
 Blackstone .... 519 
 
 8. Purchaser without notice pro- 
 
 * tected by a term . . . 520 
 
 9. After-purchased lands bound . 520 
 * 10. Judgments defeated by an ap- 
 pointment ..... 520 
 
 11. Judgment creditors under a de- 
 
 cree 521 
 
 12. Old j udgments : equity of redemp- 
 
 tion of a term not bound . . 521 
 
 13. Purchaser with notice bound by 
 
 undocketed judgment . . 521 
 
 14. Moiety only bound, unless two 
 
 judgments of the same term . 521 
 
 Judgments under the new law: 
 
 15. Bind the whole estate, legal or 
 
 equitable, and copyholds and 
 gencr.ll powers. — An actual 
 charge and bind issue and oth- 
 ers who could be barred . . 521 
 
 16. Palatine courts registry : inferior 
 
 courts 523 
 
 17. Decrees, &c., equal to judgment . 524 
 ^18. Operation of act . . . . 524 
 
 19. Leaseholds bound at law and in 
 
 equity 524 
 
 20. So an annuity .... 524 
 
 21. And a mortgage : mortgages paid 
 
 off 525 
 
 22. And binds surviving joint tenant 525 
 
 23. Operation on powers . . . 525 
 
 24. Judgment creditors of purchaser 
 
 before conveyance . . . 525 
 
 25. Operation on estates tail and re- 
 
 mainder 526 
 
 26. Operation of act as a charge . 526 
 
 27. But prior equitable mortgage, or 
 
 the life, preferred . . . 527 
 
 28. To bind a purchaser must be reg- 
 
 istered : nature of registry . 527 
 
 29. 23 & 24 Vict. c. 38 : writ of exe- 
 
 cution necessary to bind a pur- 
 chaser 529 
 
 30. And reregistered every five years : 
 
 explained 530 
 
 31. Sliaw V. Neale: Beavan v. Lord 
 
 Oxford 531 
 
 32. Notice not binding of judgment 
 
 not registered or reregistered . 532 
 
 33. Effect of notice under 1 & 2 Vict. 
 
 c. 110, and 2 Vict. c. 11. — Pur- 
 chaser protected. — And under 
 3 & 4 Vict. c. 82 . . . 533 
 
 34. Operation of statutes — when reg- 
 
 istered judgments bind. — Judg- 
 ment afterpayment of purchase 
 money still not binding. — Effect 
 of contract .... 534 
 
 35. Purchaser without notice, a mort- 
 
 gagee protected . . . 535 
 
 36. Trust estate, how far liable . . 535 
 
 37. Trust for sale, purchaser not lia- 
 
 ble 536 
 
 38. Purchaser without notice pro- 
 
 tected by a prior legal estate . 536 
 [xxxii] 
 
xlii 
 
 CONTENTS. 
 
 39. JudKments not defeated by an ap- 
 
 pointment; purchaser . . 536 
 
 40. L<*tcholds : equity of redemption 536 
 
 41. Copyliolds 537 
 
 42. Search lor judgments . . . 537 
 
 43. Although a register county . . 537 
 
 44. Judgments against tenant in tail 537 
 
 45. Purchasers before the 1st of Oc- 
 
 tober 1838, protected . .538 
 
 46. When search should be made . 538 
 
 47. Forfeiture of charge by taking 
 
 person in execution . . . 538 
 
 48. Judgments against bankrupts . 538 
 
 49. Sloper v. Fish .... 539 
 
 50. Sharpe ». Roahde . . .539 
 
 51. Search against bankrupts . . 539 
 
 52. And against insolvents . . 540 
 
 53. Mistakes in registry . . . 540 
 
 54. Contribution . . . .540 
 
 55. Remedy against any part . . 540 
 
 56. Court may enter up satisfaction . 541 
 
 57. Searcli for insolvency and bank- 
 
 ruptcy ..... 541 
 
 58. Enrolment of proceedings . . 541 
 
 59. Protection to purchasers against 
 
 unregistered certificates of ap- 
 pointment of assignees . . 542 
 
 60. Of certificato of conformity . 542 
 
 61. Search for lis pendens . . ■ 542 
 
 62. Search for crown debts, &c. . 543 
 
 64. Protection against crown debts 
 
 by term ..... 543 
 
 65. Accountant's estate, how charged 544 
 
 66. What sales binding on crown . 544 
 
 67. 16 & 17 Vict. c. 107 . . . 544 
 
 68. Simple contract debtor to crown 545 
 
 69. Nolice, how far material . . 545 
 
 70. Collector of taxes . . . 545 
 
 71. Search for substitution for fines 
 
 and recoveries deeds . . . 546 
 
 72. Search of registry of deeds . . 546 
 
 73. Wills registered or unregistered. — 
 
 Leaseholds .... 545 
 
 74. Where registry unnecessary . 546 
 
 75. Judgments. — Binding leaseholds 547 
 
 76. When search should be made . 547 
 
 77. Search for annuities . . . 547 
 
 78. Solicitor's liability for neglect . 547 
 
 79. Chief clerk's and registrar's lia- 
 
 bility 547 
 
 80. Inquiry of tenant . . . 548 
 
 * SECTION II. 
 
 OP EELIEP FROM INCnMBRANCES. 
 
 1. Seller to pay off incumbrances . 548 
 
 2. Unless purchaser has agreed to 
 
 accept a covenant . . . 548 
 
 3. Purchaser may recover, though 
 
 money paid, if conveyance not 
 perfected 549 
 
 4. Eviction after conveyance not re- 
 
 lieved against .... 549 
 
 7. Urmston v. Pate . . . .549 
 
 8. Title under forged instrument . 550 
 
 9. Matthews v. Hollings : erroneous 550 
 
 10. Neglect of purchaser . . . 550 
 
 11. Legacy a charge unpaid: remedy 550 
 
 12. Covenants of earlier vendors . 551 
 
 13. No relief though money secured . 551 
 
 14. Or sale by the court . . . 551 
 
 15. Unless in case of misrepresenta- 
 
 tion 551 
 
 16. Tourville K. Nash . . .552 
 
 [-xxxiii] 
 
 17. Concealment of defect in title 
 
 18. Purchase with all faults of title . 
 
 19. Issue directed . . . . 
 
 20. Relief where concealment . 
 
 21. No lien on purchase money after 
 
 appropriation . 
 
 22. Fund appropriated against a 
 
 claim, liable for the real claim . 
 
 23. Payment by purchaser to a cred- 
 
 itor of vendor .... 
 
 24. Purchaser puisne mortgagee, and 
 
 purchase money insufficient to 
 clear the estate .... 
 
 25. Purchase of incumbrances by 
 
 third person — how far binding 
 on purchaser .... 
 
 26. Purchase of incumbrances by pur- 
 
 chaser of estate 
 
 27. Misrepresentation that mortgage 
 
 552 
 553 
 553 
 553 
 
 . 553 
 
 554 
 
 554 
 
 554 
 
 555 
 
 . 5.55 
 
CONTENTS. 
 
 xliii 
 
 28. 
 
 money is charged on other prop- 
 erty 5.55 
 
 Succession duties : liability of 
 purchaser 555 
 
 29. Seller buying in interests after 
 conveyance, a trustee for pur- 
 chaser 556 
 
 CHAPTER XIV. 
 
 OF THE CONVEYANCE AND COVENANTS FOR TITLE. 
 
 SECTION I. 
 
 OP THE COKVEYANCE. 
 
 1. Expense where incumbrancers 
 
 join thrown on seller 
 
 2. Parties agreed upon, must join al- 
 
 thougli not necessary 
 
 3. Form of conveyance. — Recital . 
 
 4. Legal estate in trustee or mort- 
 
 gagee 
 
 5. Quantities of parcels . 
 
 6. Grant of deeds .... 
 
 7. Covenants 
 
 8. Disentailing deed, when to be ex- 
 
 ecuted 
 
 9. Legal estate ia persons under dis- 
 
 ability . . . . . 
 
 10. Conveyances by married women . 
 
 11. Charges by seller after contract to 
 
 sell .... 
 
 12. Notice of incumbrance after pay- 
 
 ment and before conveyance 
 
 13. Statement of objection to title 
 
 14. Mistake in conveyance corrected . 560 
 
 15. Alteration in draft should bo com- 
 
 municated 
 
 16. AVhcn conveyance may be pre- 
 
 pared ..... 
 
 17. Discovery of defect before engross- 
 
 ment 
 
 18. Eviction before execution . 
 
 19. Preparation of conveyance relying 
 
 upon a promise by seller . 
 
 20. Bad title, no conveyance need bo 
 
 prepared 561 
 
 557 
 
 558 
 
 558 
 
 559 
 559 
 559 
 559 
 
 559 
 
 559 
 560 
 
 560 
 
 560 
 560 
 
 561 
 
 561 
 
 561 
 561 
 
 561 
 
 21. Conveyance to lessee determines 
 
 covenants in lease . . . 561 
 
 22. Expense of conveyance falls on 
 
 purchaser : of execution on 
 seller 561 
 
 23. Purchaser pays for surrender and 
 
 admittance : expenses under 
 trustee act .... 562 
 
 24. Bargain and sale under power to 
 
 sell copyhold .... 562 
 * 25. Sale in lots where vesting order 
 
 required 562 
 
 26. Seller to convey or surrender, not 
 
 by attorney .... 563 
 
 27. Seller not bound to appoint at- 
 
 torney 563 
 
 28. Expenses of reinvesting price of 
 
 a settled estate .... 563 
 
 29. Draft belongs to purchaser . . 563 
 
 30. So deed imperfectly executed . 563 
 
 31. Or deed executed by seller where 
 
 contract is rescinded, as parch- 
 ments . . . . ' . 564 
 
 32. But it may be cancelled. — Pur- 
 
 chaser's lien on deeds. — Seller's 
 attorney has no lien on convey- 
 ance 564 
 
 33. Seller no lien at law after abso- 
 
 lute conveyance . . . 565 
 
 34. Conveyance should be registered 565 
 
 35. Short statute conveyance . . 565 
 
 36. Execution of conveyance. — Pay- 
 
 ment of purchase money . . 565 
 [xxxiv] 
 
xliv 
 
 CONTENTS. 
 
 SECTION II. 
 
 OP STAMPS. 
 
 1. Instiumentsmaybe Stamped, sons 
 to exclude doubt. — Unstamped 
 or impioperly, on payment of 
 
 566 
 
 566 
 
 566 
 
 penalty 
 
 2. Payment of duty and penalty in 
 
 court: evidence 
 
 3. The ad valorem duty on convey- 
 
 ances on sales .... 
 
 4. How to l)e paid : 1 . Where sev- 
 
 eral purchasers and property 
 conveyed in parts by one or sev- 
 eral deeds. — 2. Where the con- 
 veyance is immediate to a sub- 
 purchaser. — 3. Or to several 
 sub-purchasers.— 5. Conveyance 
 by purchaser to sub-purchaser, 
 and the conveyance by the orig- 
 inal seller to the sub-purchaser. 
 — 6. Where several sellers of 
 distinct properties convey to a 
 purchaser by one deed. — 7. 
 Where the consideration is a 
 mortgage or other debt 
 
 5. Duty payable on mortgage money, 
 
 though purchaser not liable to 
 it 
 
 6. Duty attaches on timber, fixtures, 
 
 &o. 
 
 7. Annuities, the consideration duty 
 
 attaches 
 
 8. Where improper stamps are valid 569 
 
 9. What is the principal deed . . 569 
 
 567 
 
 568 
 
 568 
 
 568 
 
 24. 
 
 25. 
 
 Agreements not to be stamped as 
 conveyances .... 569 
 
 False statement of consideration 
 does not avoid the deed . . 569 
 
 Price may bo reduced to save duty 569 
 
 Apportionment of consideration . 570 
 
 One set of stamps only to convey- 
 ance .... 
 
 Unless other estates or matter not 
 incident 
 
 Junction of third person to enter 
 into covenant requires no fur- 
 ther stamp 
 
 Indorsements, &c. to be counted 
 
 Inventory also 
 
 Attornment requires no stamp 
 
 Ad valorem duty sufficient, though 
 less than 1/. 15s. 
 
 Conveyance with mortgage re- 
 quires two stamps 
 
 Award under inclosure does not 
 require ad valorem stamp : as- 
 signment by sheriff does 
 
 Whilst execution in fieri, altera- 
 tions and reexecutions valid 
 without new stamps . 
 
 Progressive duty, where not pay- 
 able ..... 
 
 Receipt stamp : contract stamp 
 
 Seller to obtain proper stamp to 
 an agreement for lease . . 572 
 
 570 
 
 570 
 
 571 
 571 
 571 
 571 
 
 . 571 
 
 571 
 
 571 
 
 . 572 
 
 572 
 572 
 
 SECTION III. 
 
 OF COVENANTS FOR TITLE. 
 
 1 . Attorney answerable to seller for 
 
 improper covenants . . . 572 
 
 2. Usual covenants .... 573 
 
 3. Synonymous covenants . . 573 
 
 4. Agreement to take bad title with 
 
 covenants 573 
 
 5. Right to covenants under agree- 
 
 ment 573 
 
 6. Vendor who bought covenants 
 
 [xxxv] 
 
 against himself only. — Even 
 tliough he retains the deeds . 574 
 
 7. Vendor who did not buy cov- 
 
 enants against last purchaser . 574 
 
 8. Restricted in equity . . . 574 
 
 9. No covenants for title where es- 
 
 tate sold under will for debts, 
 &c. — Or by a court of equity , 574 
 * 10. Practice in those cases . . 574 
 
CONTENTS. 
 
 xlv 
 
 11. Purchaser entitled to covenants if 
 
 parties entitled to the money . 
 
 12. Or the dehts are paid . 
 
 13. No covenants upon sales hy the 
 
 crown or assignees 
 
 14. Practice as to bankrupts 
 
 15. Tenant for life to covenant . 
 
 574 
 575 
 
 ,575 
 575 
 575 
 
 16. Husband covenants on sale of 
 
 ■wife's estate .... 575 
 
 17. Trustees, only no act to incumber 575 
 
 18. Purchaser noten titled to unbroken 
 
 chain of covenants . . . 575 
 
 19. Short form of statute covenants . 575 
 
 CIIAPTER XV. 
 
 OF THE COXSTRUCTION OF COVENANTS FOK TITLE. 
 
 SECTION I. 
 
 WHAT COVENANTS KUN WITH THE LAND. 
 
 1. Covenants for title are real ones: 
 
 right of assignees, heirs, and ex- 
 ecutors "i. . . . . 576 
 
 2. Eight of devisees to action . 577 
 
 3. Such covenants run with term of 
 
 years 577 
 
 4. Operation of 32 H. 8 on cestuis que 
 
 use ..... 
 
 5. Covenants run with the seisin 
 
 6. Do not run where covenantee is 
 
 cestui que use, and afterwards 
 appoints. — But do where as- 
 signee takes the estate of cestui 
 que use ..... 
 
 7. E. P. Commissioners contra 
 
 8. Covenants with appointee run with 
 
 the land . 
 10. But not where a power is created 
 
 by a power 
 U. Eoach V. Wadham : appointment 
 
 defeats estate and covenants with 
 
 it 
 
 12. Distinction as to the legal seisin . 
 14. Wbcthcr there must be privity in 
 
 vendors covenanting 
 
 16. Privity of estate. — Assignee of 
 
 lessee bound by and entitled to 
 covenants with lessee : 32 H. 8 . 581 
 
 17. Assignee of reversion . . . 582 
 
 18. Webb V. Eussell : privity of estate 583 
 
 19. Purchasei's covenants with the 
 
 seller, a mortgagor . . . 584 
 
 20. 8 & 9 Vict. c. 106 : continuing re- 
 
 version 584 
 
 577 
 578 
 
 578 
 579 
 
 . 579 
 
 580 
 
 580 
 580 
 
 581 
 
 37, 
 
 Purchaser entitled to covenant 
 against lessee 
 
 Covenant to reside, whether it 
 binds a purchaser 
 
 Opinion of E. P. C. as to covenants 
 by a stranger running with the 
 land 
 
 Coke's opinion : partition ; cove- 
 nant by a prior to perform divine 
 service : Pakenham's case 
 
 State of authorities 
 
 Manor : Homo's case . 
 
 Parson covenanting : 6 11. 4 
 
 Keppell V. Bailey : purchaser cove- 
 nanting to keep a shop, &c. 
 
 King V. Jones : covenant by hus- 
 band of mortgagor . 
 
 Vivian v. Arthur : suit to mill . 
 
 Milnes V. Branch : rent created 
 by seller's conveyance : covenant 
 by purchaser does not run with 
 it 
 
 Kent created by way of use, cove- 
 nant with grantee does not run. 
 — Whether a covenant to pay 
 with a grantee of a rent will run 
 with it. — Covenant to pay mort- 
 gage money does not run. — Nor 
 does covenant by assi;;nee to as- 
 signor to pay rent and indemnify 591 
 
 Covenants in gross, how far bind- 
 ing 592 
 
 Where for further assurance, will 
 be specifically enforced . . 593 
 
 584 
 
 585 
 
 585 
 
 586 
 587 
 587 
 588 
 
 588 
 
 589 
 589 
 
 590 
 
xlvi 
 
 CONTENTS. 
 
 40. Whevethe seller's remaining lands 
 
 are bound by covenants . . 593 
 
 41. Grant of watercourse, with cove- 
 
 nant to cleanse it . . . 593 
 
 42. Brewster v, KidgcU : covenant to 
 
 pay rent in fee does not bind as- 
 signee of bind, i;«. 
 
 43. Roach i: Wadhani : against Holt's 
 
 opinion. — Opinion of E. P. C. 
 on Roiich v. Wadham 
 
 44. Koach v. Wadham explained 
 
 45. Result 
 
 40. Covenant to produce deeds . 
 47. Covenants not to build on lands. 
 
 593 
 
 594 
 595 
 596 
 596 
 
 &c., whether they run with the 
 land : bind in equity . . 596 
 
 48. Covenant by lessor for right of 
 preemption of other land does not 
 run 597 
 
 *49. Nor similar covenant by lessee . 697 
 
 50. Nor covenant to contribute to ex- 
 
 pense of establishing a mod us . 597 
 
 51. Collins V. Plumb: covenant by 
 
 purchaser of well not to sell the 
 water 598 
 
 52. Preston's opinion, that the remedy 
 
 under covenants cannot be ap- 
 portioned. — Observations con- 
 tra 598 
 
 SECTION 11. 
 
 TO WHAT ACTS COVENANTS FOR TITLE EXTEND. 
 
 1. Five distinct covenants: cove- 
 nant where the seller has a 
 power 599 
 
 3. Do not extend to tortious evic- 
 
 tions. — Uiiless the party is 
 named 600 
 
 4. Or the seller himself assert his 
 
 title 600 
 
 5. Or the covenant embrace pre- 
 
 tended claims. — Suit in equity 
 a disturbance .... 600 
 
 6. Jerritt v. Weare. — Observations 
 
 upon it 600 
 
 7. Covenant for right to convey ex- 
 
 tends to capacity to grant . . 601 
 
 8. Whose entry is a breach where 
 
 the covenant is against persons 
 
 claiming l)y ihe means, title, &c. 
 
 of covenantor .... 601 
 
 ( Or l>v or tlirough his acts or 
 9 y - ° . 
 
 ■ < means : act not proceeding from 
 
 (. covenantor .... 601 
 
 1 1 . Appointee a person claiming under 
 
 covenantor .... 602 
 
 12. Quit-rents incident to tenurewith- 
 
 in general covenant . . . 602 
 
 13. Arrear by default: Howes v. 
 
 Brushficld. — Observations upon 
 
 it 602 
 
 14. Default includes persons whom 
 
 the coven.aiitor might have 
 barred ; Lady Cavan v. Pulteney 602 
 
 15. Arrearof land tax . . . 603 
 
 16. Covenant by trustee: permitted 
 
 or suffered, or been party or 
 piivy to 603 
 
 17. Default does not include persons 
 
 whom covenantor had not the 
 power to bar : Woodhouse v. 
 Jenkins 604 
 
 18. Covenant confined to the estate 
 
 conveyed 604 
 
 SECTION III. 
 
 EXTENT OF KESTKICTIVE WOKDS. 
 
 2. General covenants not cut down 
 
 without clear intention . . 605 
 
 3. Restrictive words to first covenant 
 
 extend to all having the same 
 object 605 
 
 [xxxvi] 
 
 5. Covenant for quiet enjoyment 
 
 where general : Howell v. Rich- 
 ards 606 
 
 6. Nind V. Marshall . . . .606 
 
 7. Young V. Raincock . . . 607 
 
CONTENTS. 
 
 xlvii 
 
 8. First general covenant not re- 
 
 strained by other limited ones . 607 
 
 9. Smiih V. Compton . . .608 
 10. General covenant does not en- 
 large subsequent limited one . 608 
 
 11. Or where covenants are of divers 
 
 natures. — For title and value . 609 
 
 13. Equity relbrms general covenants 
 
 entered into by mistake . . 609 
 
 SECTION IV. 
 
 OF THE KEMEDY UNDER COVENANTS FOR TITLE. 
 
 1. Action for damages on eviction . 610 
 
 2. But no relief unless within the 
 
 covenant, or fraud . . . 610 
 
 3. What is a breach . . .610 
 
 4. Damages whera copyhold and not 
 
 freehold 611 
 
 5. Breach although no estate passed 611 
 
 6. Purchaser may wait till eviction . 61 1 
 
 7. Damages under covenant for fur- 
 
 ther assurance . . . .611 
 
 8. Interest 611 
 
 9; Purchaser's remedy under cove- 
 nants where he has mortgaged . 611 
 
 10. Improvements and buildings . 6l I 
 
 11. Contingent incumbrance . . 612 
 
 12. Effect of want of notice to seller 
 
 from purchaser of adverse suit 612 
 
 13. Bankruptcy, &c., no bar of cove- 
 
 nant for title. — Action against 
 devisees 612 
 
 14. Specific performance of covenant 
 
 for further assurance . .612 
 
 * 15. Seller bound to confirm, although 
 
 breach of covenant by pur- 
 chaser 612 
 
 16. Duplicate of conveyance; cov- 
 
 enant to produce deeds . . 613 
 
 17. Relief against assignees . . 013 
 
 18. Belief in equity against covenants 
 
 for title 613 
 
 19. Judgments, &e 613 
 
 20. Limited time for further assur- 
 
 ance 613 
 
 21. Unnecessary act cannot be re- 
 
 quired 613 
 
 22. Costs to be tendered . . . 613 
 
 23. Assurance to be devised by coun- 
 
 sel or party. — What time is al- 
 lowed for the execution of a fur- 
 ther assnrance .... 614 
 
 24. Bond cannot be required . .614 
 
 25. ( What covenants may be re- I 614 
 27. ( quired in assurance . . ) ^15 
 
 26. Where a trustee conveys by way 
 
 of further assurance . . . 614 
 
 CHAPTER XVI. 
 
 OF SATISFIED TERMS. 
 
 1. Cesser of terms under 8 & 9 Vict. 616 
 
 2. Nature of attendant term . . 616 
 
 4. Union of term and inheritance, » 
 
 merger .... 
 
 5. Unless freehold in outer droit 
 
 6. Particularly if union by act in 
 
 law 
 
 7. Tenant by the curtesy and termor 617 
 
 8. Executor having a term and buy- 
 
 ing the fee 618 
 
 9. Freeholder in his own right aud 
 
 617 
 617 
 
 617 
 
 termor in auter droit, no merger. 
 — Freeholder marrying the ter- 
 mor. — Grant by lessee to the 
 wife of lessor . . . .618 
 
 10. Purchase of freehold by termor 
 
 in right of his wife . . . 619 
 
 11. Lessee appoints freeholder execu- 
 
 tor, no merger . . . .619 
 
 12. Years may merge in years. — Term 
 
 saved where termor, releasee, &e. 
 
 to uses 619 
 
 [xxxvii] 
 
xlviii 
 
 CONTENTS. 
 
 13. Resuscitation of term or creation 
 
 of new one . . , ,619 
 
 14. LawK. Urlwin .... 620 
 
 15. Observations thereon . . . 620 
 
 16. Provisoes fur cesser . . .621 
 
 17. Presumption of surrender . . 621 
 
 18. 8 & 9 Vict. c. 112, directing terms 
 
 to cease 622 
 
 20. ( Protection afforded by term. — ) 623 
 24. ( Not against crown debt . ) 624 
 
 21. Unless term not assigned for 
 
 crown debtor .... 623 
 
 22. Against dower. — Bnt term must 
 
 liave been assigned . . . 623 
 
 25. Freer v. Hesse . . . 624 
 
 26. Term in gross attends hy implica- 
 
 tion if it would merge by union 625 
 
 27. Altliough there is an intervening 
 
 term to wliich purchaser is enti- 
 tled. — And a nominal reversion 
 is left outstanding, but no 
 charge 625 
 
 28. Implication may be rebutted . 626 
 
 29. The new statute . . . .626 
 
 CHAPTER XVII. 
 
 OF INTEREST, DETERIORATION, AND COSTS. 
 
 SECTION I. 
 
 OP INTEEEST AKD DETEKIOEATION. 
 
 /. 0/ Interest ; 
 
 1. Purchaser to take profits and pay 
 
 interest from lime fixed for com- 
 pletion. — So of a reversion . 627 
 
 2. Even if money lie dead if pur- 
 
 chaser in default . . . 628 
 
 3. Contra if seller cause delay . . 628 
 
 4. Possession gives right to interest 628 
 
 5. Where a receiver is appointed . 629 
 
 6. Rule not universal . . . 629 
 
 8. Possession taken and abandoned . 630 
 
 9. Objection to title. — Agreement to 
 
 pay interest on possession re- 
 scinded if long delay. — Acquies- 
 cence in delay .... 630 
 * 10. Interest excluded by agreement 
 
 to repay costs and charges . 631 
 
 11. Interest on timber money . . 631 
 
 12. Rents and interest on sale of es- 
 
 tate in possession by the court 631 
 
 13. Same on sale of reversion . . 631 
 
 14. Trefusis v. Lord Clinton . . 632 
 
 15. Delay where there is a pepper- 
 
 corn rent . . . . 632 
 
 16. Delay where a lease is sold . 632 
 
 19. Written agreement to pay inter- 
 
 est 632 
 
 20. Rests 633 
 
 21. Lessee under option, buying fee, 
 
 interest in lieu of rent . . 633 
 
 22. Seller answerable for rent not re- 
 
 ceived from wilful default . . 633 
 
 23. Where interest on rents . . 633 
 
 24. Delay in vendor: if interest ex- 
 
 ceed rents no interest : seller 
 takes rents .... 633 
 
 25. Effect of stipulation to pay inter- 
 
 est during delay. — Jones v. 
 Miidd. — Portman u. Mill .633 
 
 26. Esdailet'. Stephenson. — Monty. 
 
 Haskisson : unforeseen or un- 
 avoidable obstacles . . . 634 
 
 27. Birch a. Podmore : unavoidable 
 
 obstacle. — De Vismc v. De 
 Vismo 635 
 
 28. Widdall v. Nixon . . . 635 
 
 29. Result: culpable delay of seller . 636 
 
 30. Present state of law . . .637 
 32. Oxendcn v. Lord Exmouth : .iny 
 
 cause: wilful default . . .637 
 
 17. Annuity sold by the court . .632 33. Pnlilic-housowich good-will, stock, 
 
 18. Annuity sold by private contract 632 1 &c 638 
 
 [xxxviiij 
 
CONTENTS. 
 
 xlix 
 
 34. Purchaser not to pay interest on 
 
 deposit 638 
 
 35: Nor the seller if contract proceed* 638 
 
 36. Interest on money left with pur- 
 
 chaser to pay incumbrances . 639 
 
 37. Interest at law . . . . 639 
 
 38. Not against auctioneer . . 639 
 
 39. Statute of limitations . . . 639 
 
 41. Vendor to pay interest on money 
 
 lying ready if no title . . 640 
 
 42. 3 & 4 Will. 4, c. 42, s. 28 . . 640 
 
 43. Interest on opening biddings . 640 
 
 44. Unless unnecessary examination 
 
 of title affects right to interest . 640 
 
 45. Investment, at whose risk . . 640 
 
 46. Return of deposit and interest, 
 
 where seller's bill dismissed . 641 
 
 47. Injunction : no interest on instal- 
 
 ments of interest . . . 641 
 
 48. Effect of court's suspending pay- 
 
 ment of interest . . . 641 
 
 50. Reversal in D. P. : instalments of 
 
 interest not due . . . 641 
 
 51. Reversal : retransfcr of stock 
 
 and dividends, or price without 
 interest 641 
 
 52. Reversal : repayment of costs 
 
 without interest . . . 641 
 
 53. Interest and rent where sale to 
 
 trustee set aside . . . 642 
 
 54. Not interest on rents, where . 642 
 .55. Occupation rent with rests . . 642 
 
 56. Usury : purchase, not loan . . 642 
 
 57. Pive per cent, at law, four per 
 
 cent, in equity .... 643 
 
 61. Agreement to pay five per cent. 
 
 revived 643 
 
 //. Of Deterioration. 
 
 62. Delay in seller : compensation for 
 
 deterioration . ' . . . 644 
 
 63. Not after possession by purchaser 644 
 
 64. Interest on amount . . . 644 
 
 65. Securing crops, &c., during dis- 
 
 pute . .... 644 
 
 66. Felling ornamental timber . . 644 
 
 67. Or coppice wood. . . . 644 
 
 68. Wind-falls 644 
 
 69. Failure of tenants . . .645 
 
 70. Seller cannot claim for improve- 
 
 ments after contract . . . 645 
 
 71. Loss from agreement by purchaser 
 
 with tenant .... 645 
 
 72. Mistake in interest : receipt in 
 
 conveyance .... 645 
 
 SECTION II. 
 
 1. Costs at law and in equity : trus- 
 
 tees 646 
 
 2. In equity, do not follow the event 
 
 of the cause .... 646 
 
 3. Purchaser's bill : no title . . 646 
 
 5. Vendor's bill ; no title and mis- 
 
 representation .... 647 
 
 6. Vendor's bill : no title. . . 647 
 
 7. Report of good title, but consid- 
 
 ered too doubtful . . . 647 
 
 8. Costs of objections abandoned at 
 
 the hearing .... 647 
 
 9. Bad title only prima facie case for 
 
 costs . . . . . . 647 
 
 10. Costs of objections overruled, 
 
 where report is against the title 647 
 *11. Improper suit by seller proper 
 
 one by purchaser . . . 648 
 
 VOL. I. d 
 
 12. Opinion at law against the title 
 
 after master's report contra 648 
 
 13. Opinion at law in favor of title, 
 
 but on general view held bad . 648 
 
 14. Good title, not till after bill filed . 648 
 
 15. Costs of case at law for the title 
 
 after master's report also for 
 ■ it 648 
 
 16. Title made contrary to abstract ; 
 
 purchaser's acquiescence . . 648 
 
 1 7. Untenable grounds on both sides 649 
 
 18. Costs of appeal where title doubt- 
 
 ful 649 
 
 19. Purchaser may take fair objec- 
 
 tion. — Opinion of counsel does 
 not save costs. — Where pur- 
 chaser is misled .... 64it 
 
 20. Point decided in a former cause . 049 
 
 [xxxix] 
 
1 
 
 CONTENTS. 
 
 21. Doubtful fact, found against pur- 
 
 chaser 649 
 
 22. Necessary and unnecessary evi- 
 
 dence required .... 649 
 
 23. Materiality of further abstracts 
 
 considered .... 650 
 
 24. Where purchaser might have had 
 
 the evidence .... 650 
 
 25. Purchaser insisting contract is at 
 
 an end 651 
 
 26. Suit occasioned by purchaser's 
 
 unfounded claim . . . €51 
 
 28. Frivolous objections . . . 652 
 
 29. Lots, and a good title to some, 
 
 and all refused .... 652 
 
 30. Possession by purchaser . . 652 
 
 31. Set-off: deposit and costs . . 653 
 
 32. Suit occasioned by trustee . . 653 
 
 33. Cfosts of unnecessary action . 653 
 
 34. Purchaser's conduct dishonor- 
 
 able 653 
 
 35. Objection taken after waiver . 653 
 
 36. Inadequate price .... 653 
 
 37. Improper allegation of fraud, &c. 653 
 
 38. Claim by plaintiff contrary to the 
 
 contract 653 
 
 40. Suit to make a title : death or 
 lunacy of seller .... 654 
 
 41. Suit occasioned by seller's mis- 
 
 statement 654 
 
 42. Incumbrances preventing a title . 654 
 
 43. Determination of contract by sell- 
 
 er, after bill filed . . .654 
 
 44. Costs of sale by courts of equity . 654 
 
 45. Dismissal of bill with costs by 
 
 House of Lords . . . 655 
 
 46. Motion to pay out purchase- 
 
 money 655 
 
 CHAPTER XVIII. 
 
 OP THE OBLIGATION OP A PURCHASER TO SEE TO THE APPLICATION OP 
 THE PURCHASE MONEY. 
 
 I. Purchase fi'om heir or devisee . 655 
 n. Purchaser's liability before 22d 
 & 23d Vict. t. 35, s. 23, making 
 trustee's receipts discharges. — 
 1. As to real estatp . . . 657 
 III. 1. Where debts and legacies are 
 not intended to be paid : charge 
 of debts exonerates purchaser in 
 all cases, semb. ; Fraudulent 
 sale 661 
 
 2. Trust to raise deficiency of per- 
 
 sonal estate, purchaser not 
 liable. — Contra of a power : how 
 such a power should be given . 662 
 
 3. Implied power to vary securities. — 
 
 Dealings by trustees with the 
 estate before sale . . 663 
 
 4. Payment to one of several trustees 
 
 bad 663 
 
 6 Effect of contract on trust for sale, 
 
 &c 664 
 
 6. What trustees should give receipt. 
 
 — Disclaimer .... 664 
 
 7. Distinction between receipt under 
 
 power of attorney and under 
 receipt clause .... 664 
 
 8. Mortgage to two : receipt of sur- 
 
 vivor 665 
 
 9. New trustee appointed by court . 665 
 
 10. Payment of money to solicitor or 
 
 agent 667 
 
 11. Payment upon solicitor's under- 
 
 taking 668 
 
 IV. As to Leaseholds. 
 
 1 . Purchaser of leasehold not bound 
 
 to see debts paid. — Executor 
 cannot sell for his own debts . 668 
 
 2. Sale at undervalue. — Fraud . 669 
 
 3. Laches by legatee . . . 669 
 
 4. Sale by executor of leasehold 
 
 specifically bequeathed . . 669 
 
CONTENTS. 
 
 li 
 
 * CHAPTER XIX. 
 
 OF THE vendor's LIEN ON THE ESTATE FOR THE PURCHASE MONEY UN- 
 PAID : AND THE DISCHARGE OF IT BY TAKING OTHER SECURITIES. 
 
 1. Vendor's lien . . , .670 
 
 2. Purchaser's lien . . . . 67 1 
 f Vendor's lien, although agree- ■) 
 
 ' J mentfor bond during the sell- V 
 '( er'slife; Winter!). Lord Anson) 
 
 4. No lien where conveyance in con- 
 
 sideration of covenants : Clarke 
 b. Eoyle . . . ' . .672 
 
 5. Clarke v. Royle not overruled . 672 
 
 6. Mortgage to third person with 
 
 seller's consent : no lieu . . 673 
 
 7. Bonds with sureties . . . 673 
 
 8. IiOan not lien 674 
 
 9. Covenant by purchaser and surety 
 
 and consent required to resale. 
 — Conveyance for bond ; no lien : - 
 Parrot «. Sweetland . . . 674 
 
 10. Intention not important . . 675 
 
 1 1 . Money to be paid after resale no 
 
 lien 675 
 
 12. Independent security : no lien. — 
 
 As upon stock. — Mortgage of 
 another estate, or of estate sold 
 for part . . . . .675 
 
 13. A bond and mortgage of part of 
 
 estate : no lieu .... 675 
 
 14. Bond or note does not destroy 
 
 lien 675 
 
 15. Effect of a covenant . . . 676 
 
 16. Annuity the price, whether bond 
 
 or note excludes the lien . . 676 
 
 17. Part left with one trustee where 
 
 several sell .... 678. 
 
 37. 
 
 678 
 679 
 679 
 
 679 
 679 
 679, 
 680 
 680 
 680 
 
 681 
 
 Lien of trustees on new purchase 
 
 by tenant for life 
 Lien for part and none for rest 
 Set-oif against assignees 
 Action and suit by the seller at 
 
 the same time not allowed . 
 Declaration to prevent lien . 
 Assets marshalled 
 Contribution .... 
 Vendor keeping the deeds . 
 Lien prevails against whom . 
 Possession of seller as lessee not 
 
 notice .... 
 Assignees of bankrupt bound by 
 
 lien . . ' . . . .681 
 Sale under lien .... 681 
 Lien on plant ; bankruptcy . . 681 
 Creditors under conveyance bound 682 
 Qtd prior est tempore potior est 
 
 jure 682 
 
 Equitable mortgagee by deposit 
 
 of deeds overreaches lien . . 682 
 Priorities according to time . 682 
 
 Fraudulent mortgage ; deposit 
 
 with notice, purchaser relieved . 682 
 Deposit of deeds binds the crown 683 
 Security for purchase money to 
 
 third person .... 
 Assignment of lien 
 Pledge by seller of conveyance to 
 
 purchaser .... 
 
 Barred by non-claim . 
 Lien not a security of money with- 
 in a bequest . . . '. 684 
 
 683 
 683 
 
 683 
 684 
 
 CHAPTER XX. 
 
 OF THE PERSONS INCAPABLE OF PURCHASING. 
 
 SECTION I. 
 
 1. The several incapacities . . ?84 
 
 2. Parishioners, &c. — Parson and 
 
 churchwardens in London . 684 
 
 OP PERSONS INCAPABLE OP PURCHASING. 
 
 3. Aliens purchase for benefit of 
 crown. — Denizen may purchase 
 and hold. — Office found. — Eel- 
 [xl] 
 
lii 
 
 CONTENTS. 
 
 ons and traitors. — Corpora- 
 tions ■ 685 
 
 Infants may at age waive a pur- 
 chase. — Femes covert : hus- 
 band's dissent. — Contract to 
 
 purchase by feme covert with 
 separate estate. — Feme covert 
 buying with husband's author- 
 ity. — Lunatics. — 'Eoman Cath- 
 olics 685 
 
 * SECTION II. 
 
 OF PURCHASES BT THXTSTEES, AGENTS, &C. 
 
 Trustees, &c., incapable of pur- 
 chasing 68? 
 
 10. 
 11. 
 
 12. 
 
 13. 
 14. 
 15. 
 
 16. 
 17. 
 
 Purchases by agents . 
 
 I. 689 
 
 Agent buying his own estate for 
 
 principal 689 
 
 Execution creditor may buy . 689 
 So may mortgagee. — Unless a 
 
 trustee of a power to sell . . 689 
 Attorney cannot buy from client . 689 
 Kesale by solicitor: mortgage, 
 
 power of sale .... 690 
 Arbitrator cannot buy claims . 6^0 
 Prohibition extends to buying as 
 
 agent .... 690 
 
 Although by auction or from the 
 
 court 691 
 
 Guardian and ward . . . 691 
 Relation of trustee purchasing . 692 
 Tenant for life purchasing under 
 
 his power of sale . . . 692 
 Trustees relinquishing their office. 
 
 — Trustee for creditors : ma- 
 jority of creditors . . . 692 
 
 Trustee may buy from cestui que 
 trust when confidence at an end. 
 
 — Authority from attorney to 
 buy 692 
 
 18. Attorney may buy from client at 
 
 arm's length .... 693 
 
 19. Trustee buying as agent . . 693 
 
 20. How purchase to be effected where 
 
 cestui que trust not sui juris . 693 
 
 21. Mortgagee relieved against pur- 
 
 chase 693 
 
 22. Estate not resold to be recon- 
 
 veyed 694 
 
 23. Terms upon which purchase is set 
 
 aside where estate is resold . 694 
 
 24. New sale 694 
 
 25. In lots 694 
 
 26. Rise in funds where money in- 
 
 vested 695 
 
 27. Allowance for repairs, &c. — Old 
 
 buildings pulled down . 695 
 
 28. Rise in funds no objection to re- 
 
 lief 695 
 
 29. ) Increased price, to be paid to 
 
 31. ) cestui que trust .... 695 
 
 30. Costs . . ... 695 
 
 32. Purchasers with notice bound by 
 
 the equity 695 
 
 33. Acquiescence .... 696 
 
 34. Laches : creditors. — Knowledge 
 
 of cestui que trust . . . 696 
 
 35. Confirmation . . . .696 
 
 CHAPTER 'XXI. 
 
 OF JOINT PUECnASES ; PURCHASES IN THE NAMES OF THIED PERSONS 
 AND PURCHASES WITH TRUST MONEY: AND OF THE PERFORMANCE OP 
 A COVENANT TO PURCHASE AND SETTLE AN ESTATE. 
 
 SECTION L 
 
 01' JOINT PDRCHASES, AND PnKCHASES IN THE NAMES OP THIRD PERSONS. 
 
 1. Equal or unequal advance of pur- 
 chase money. — Expenditure on 
 [Xli] 
 
 repairs by one. — Severance of 
 joint tenancy in equity. — In 
 
CONTENTS. 
 
 Uii 
 
 partnership, no survivorship in 
 equity. — Building leases to two 697 
 
 3. Issue directed whether purchase 
 
 for trade 699 
 
 4. No partition whilst common ob- 
 
 ject unpei-formed . . . 699 
 
 5. Contract to sell to two. — Parol 
 
 evidence inadmissible that one 
 was the purchaser. — Abate- 
 ments on incumbrances inure 
 to both. — So a new lease to 
 one 699 
 
 6. Covenant to pay mortgage money 699 
 
 7. Conveyance to one, trust for the 
 
 other proved by letters . . 700 
 
 8. Desisting to treat in favor of an- 
 
 other 700 
 
 9. Where upon completion of con- 
 
 veyance by one, the other must 
 accept the title, &c. . . . 700 
 
 10. Purchase in the name of stranger 
 
 a trust. — Clear proof required 701 
 
 11. Evidence from alleged owner's 
 
 poverty. — Conveyance by one 
 to another as purchaser, lien 
 only for purchase money . . 702 
 
 12. Unless some written evidence to 
 
 prove trust .... 702 
 * 13. Parol express J;mst prevents re- 
 
 sulting trust. — Parol evidence 
 in favor of alleged trustee ' . 702 
 
 14. Enjoyment under a purchase in 
 
 names of purchaser and a 
 . stranger jointly . . . 703 
 
 15. Purchase by agent. — Conviction 
 
 of agent of perjury . . . 703 
 
 16. Purchase in the name of a child, 
 
 no trust. — Copyholds for lives 703 
 
 17. Child already advanced. — Child 
 
 treated as a trustee from the 
 first 704 
 
 18. Possession- by the father. — Ex- 
 
 penditure by the father for re- 
 pairs 704 
 
 19. Subsequent declaration of trust 
 
 by father inoperative. — Election 704 
 
 20. Conveyance to sever joint ten- 
 
 ancy 704 
 
 21. Purchase in the joint names of 
 
 father and son, an advancement "05 
 
 22. Operation of 27 Eliz. — And of 
 
 bankrupt acts .... 705 
 
 23. Purchase by grandfather in the 
 
 name of grandchild . . . 706 
 
 24. Purchase by husband in the name 
 
 of wife 706 
 
 25. Purchase by trader in the name 
 
 of wife or child .... 707 
 
 SECTIQJT II. 
 
 OP PUECHASES WITH TRtrST MONET : AND OP THE PERFORMANCE OP A COVENANT 
 TO PURCHASE AND SETTLE AN ESTATE. 
 
 1. Purchase by trustee or executor 
 
 with assets in his own name . 707 
 
 2. Parol evidence .... 708 
 
 3. If bound to invest in land, pre- 
 
 sumption accordingly. — Unless 
 he claimed the money. — Pur- 
 chase by executor of mortgagee 
 of equity of redemption . . 708 
 
 4. Purchase by person- who has 
 
 agreed to purchase and settle 
 lands, a performance. — Al- 
 though purchase only partial . 708 
 
 5. Or trustees were to buy. — Or 
 
 consent required . ,. . 709 
 
 6. Lands and money taken in ex- 
 
 change liable .... 709 
 
 7. Where descended lands go in per- 
 
 formance of covenant . . 709 
 
 8. ( What estates will satisfy the ) 709 
 
 9. t covenant . . . . ) 710 
 
 10. Improper investment may be fol- 
 
 lowed 710 
 
 11. Value, how to be taken . . 710 
 
 12. Additional sum invested : im- 
 
 provements an advancement . 711 
 
 13. Where covenant is a lien . . 711 
 
 14. Where a covenant to settle is con- 
 
 fined to an existing contract to 
 purchase 711 
 
 15. Renewals, &c., by trustees . .711 
 
 [Xlii] 
 
liv 
 
 CONTENTS. 
 
 CHAPTER XXII. 
 
 OF THE PROTECTION AND RELIEF AFFORDED TO PURCHASERS BY STAT- 
 UTE^. 
 
 SECTION I. 
 
 OF FRAUDULENT AND VOLUNTARY SETTLEMENTS, AND SETTLEMENTS WITH POW- 
 ERS OP REVOCATION. 
 
 1. 27 Eliz. c. 4 : fraudulent convey- 
 
 ances void against purchaser. — 
 So conveyance with pftwer of 
 revocation in grantor . . 712 
 
 2. A-Ct extends to copyholds : mort- 
 
 gagee a purchaser. — King. — 
 Adequacy of purchaser's consid- 
 eration. — Purchaser must buy 
 an existing interest . . . 713 
 
 3. Fraudulent conveyances void 
 
 though not made by the vendor 713 
 
 4. Purchaser under second voluntary- 
 
 grantee preferred to first volun- 
 tary grantee . . . ' . 714 
 
 5. Binds the crown .... 714 
 
 6. Voluntary settlements are void 
 
 against purchaser . . .714 
 
 7. Deposit of deeds .... 715 
 
 8. Conveyance to wife or children 
 
 voluntary 715 
 
 9. Purchase in name of wife or 
 
 child 715 
 
 * 10. Settlement prior to marriage not 
 
 voluntary . . . ' . . 715 
 11. Marriage consideration runs 
 through the settlement. — How 
 far marriage consideration ex- 
 tends to collaterals. — Remain- 
 ders to collaterals not supported 
 though settlor tenant in tail. — 
 Eesettlement by two, on the 
 survivor. — Settlement of wom- 
 an's estate 716 
 
 12. Settlement supported by addi- 
 
 tional j)ortion, &c. — Or by wife's 
 concurrence in desti'oying' an- 
 other settlement . . . 718 
 
 13. Separation with deed of indem- 
 
 nity. — Settlement of personal 
 estate binding .... 718 
 
 14. Purchase for and conveyance by' 
 
 seller to charity . . .719 
 
 15. Stranger not aided in equity . 719 
 
 16. Voluntary settlement good by 
 
 m&ttev ex post facto . . 719 
 
 17. Applied to equitable rights. — Mar- ' 
 
 riage upon the faith of voluntary 
 settlement . . . .720 
 
 1 8. Settlement for valuable considera- 
 
 tion apparently voluntary . 720 
 
 19. Contract to sell by voluntary 
 
 settlor enforced for purchaser. 
 
 — Vendor cannot enforce the 
 agreement .... 720 
 
 20. Suit to enforce voluntary settle- 
 
 ment : sale by settlor . . 721 
 
 21 . Powers of revocation : partial 
 
 power. — Power with colorable 
 condi tions. — Binding powers. 
 
 — Settlement with power void, 
 although made for valuable 
 consideration .... 721 
 
 22. Future power, and sale before the 
 
 day. — Extinguishment of power 
 inoperative .... 721 
 
 SECTION II. 
 
 OF PROTECTION PROM CHARITABLE USES. 
 
 1. Purchaser without notice protect- 
 ed. — Inadequate consideration. 
 — Eentcharge . . . 722 
 
 [xliii] 
 
 2. Notice to first purchaser binds all 722 
 
 3. And length of possession will not 
 
 support his title . . . 723 
 
CONTENTS. 
 
 Iv 
 
 SECTION ni. 
 
 OP PKOTECTION FKOM ACTS OF BANKKUPTCT, AND FROM JUDGMENTS, CROWN 
 DEBTS, AND LIS PENDENS. 
 
 1. Purchasers without notice pro- 
 
 tected. — Purchasers withnotice, 
 after twelve months fi-om bank- 
 ruptcy 
 
 2. Notice to agent of corporation, &c. 
 
 sufficient 
 
 3. What is not notice 
 
 4. Defects in proceedings not to aiFect 
 
 purchasers after a limited time . 
 
 723 
 
 725 
 
 5. Bankrupt's estates vest in as- 
 
 signees. — Copyholds . . 725 
 
 6. Agreement by bankrupt to pur- 
 
 chase may be ordered to be deliv- 
 ered up. — Bankrupt may be 
 ordered to join in conveyance . 725 
 
 7. Certificate of appointment of as- 
 
 signees to be registered . . 726 
 
 8. Judgments, crown debts. Us pen- 
 
 dens 726 
 
 SECTION IV. 
 
 QP PROTECTION PEOM UNREGISTERED DEEDS, &C. 
 
 1. Deeds and wills in York, King- 
 
 ston-upon-HuU, and Middlesex 
 
 to be registered 
 ' 2. Deeds not registered void against 
 
 purchasers. — So devises. — 
 
 An,d judgments 
 
 3. An appointment must be regis- 
 
 tered. — So must a lease, al- 
 though assignment of it is regiS' 
 tered. — Assignment of legacy 
 not 
 
 4. Settlement by a woman must be 
 
 registered to prevent charges by 
 her husband. — Two successive 
 grants without registry, and 
 grant by the second grantee to 
 one who registers 
 
 5. Further advance by mortgagee 
 
 without notice of second regis- 
 tered mortgage, valid. — Pur- 
 chaser without notice not bound 
 by prior equitable registered in- 
 cumbrance. — Purchaser with 
 
 727 
 
 727 
 
 727 
 
 727 
 
 notice bound by unregistered 
 
 deed 
 
 * 6. Operation of Irish act on equi- 
 table estates .... 
 
 7. Memorial, how to be framed. — A 
 
 witness to the deed must be a 
 witness to the memorial. — Exe- 
 cution of memorial by represen- 
 tatives. — Deed of corporation. 
 — Writs of execution, &c. 
 
 8. Necessary contents of memorial . 
 
 728 
 
 729 
 
 9.) 
 
 . r DescriptK 
 
 •729 
 730 
 
 731 
 
 .„ , ^wo>,..j,don of parcels 
 
 11. Copyholds excepted : leases by li- 
 
 cense. — Leases at rack-rent ex- 
 cepted; — So leases not beyond 
 twenty-one years with possession 
 and occupation : sale : mortgage, 
 — Sergeant's Inn excepted . 731 
 
 12. Registry under 25 & 26 Vict. t. 53 732 
 
 13. Eegistry of appointments of as- 
 
 signees of insolvents and bank- 
 rupts 732 
 
 SECTION V. 
 
 OP PROTECTION FROM DEFECTS IN RECOVERIES, AND FROM DEFECTS IN SALES FOE 
 LAND TAX, AND OP PURCHASES BY ROMAN CATHOLICS. 
 
 1. Purchaser protected against do- 1 2. Provisions in 3 & 4 Will. 4, c. 74, 
 feet of record or of recovery , in favor of purchasers . . 733 
 
 deed . ... 733 1 
 
 [xliv] 
 
Ivi 
 
 CONTENTS. 
 
 3. Defective sales for land tax ren- 
 
 dered valid . . . .734 
 
 4. Power to commissioners for taxes 
 
 to confirm sales for laud-tax . 735 
 
 5. Extent of power .... 735 
 
 6. Purchaser with notice . . . 635 
 
 7. Sale of school huildings . . 735 
 
 8. Purchases by Eoman Catholics . 736 
 
 CHAPTER XXIII. 
 
 OP EQUITABLE BELIEF AND PROTECTION. 
 SECTION I. 
 
 OP EQUITABLE RELIEF AND PKOTECTION 
 
 2. Purchaser protected although 
 
 equitable title a forged instru- 
 ment 737 
 
 3. May avail himself of satisfied 
 
 charges. — Where he has the 
 best right to call for legal estate 738 
 
 4. First mortgagee with notice con- 
 
 veying to third .... 738 
 
 5. Priorities according to time in 
 
 equities . . ... 739 
 
 6. Lease and release ; no estoppel . 739 
 
 7. Assignee of purchase money can- 
 
 not tack 740 
 
 8. No protection from estate in a 
 
 trustee upon an express trust . 740 
 
 9. Fraud in others, or accident, no 
 
 ground of relief against pur- 
 chaser : no discovery of writings 741 
 
 10. Trustee refusing to act agaiinst a 
 
 purchaser. — Dormant incum- 
 brances relieved against . . 741 
 
 11. So defective execution of power. 
 
 — But not a power by will where 
 estate sold .... 742 
 
 12. Production of deed with evidence 
 
 on its face of fraud, enforced . 742 
 
 13. Mistake, &c., of conveying parties 
 
 no prejudice to purchaser . . 742 
 
 14. Unless objection not fairly stated. 
 
 — If a general statement, party 
 
 is bound . . . . 742 
 
 16. All rights of conveying parties 
 
 pass 743 
 
 17. Party with right encouraging an- 
 
 other to buy binds his righ t. — 
 So where the representation is 
 by mistake .... 743 
 
 WHERE THE PURCHASER HAS NO NOTICE- 
 
 18. So where an incumbrance is de- 
 
 nied: liability of trustees . . 744 
 
 19. Incumbrancer not bound to give 
 
 notice to purchaser . . . 744 
 
 20. Vendor, his heirs and assignees, 
 
 to make good defective convey- 
 ance. — So judgment creditors . 744 
 
 21. Even a subsequent title bound. — 
 
 Whether this is 'a personal 
 equity 745 
 
 22. Conveyance by wrong person . 745 
 * 23. Contingent remainder conveyed 
 
 to a purchaser and destroyed, 
 seller's subsequent title is to 
 make it good .... 74^ 
 
 24. Equity between trustees of renew- 
 
 able leaseholds and purchaser . 746 
 
 25. No relief against solemnities under 
 
 act of parliament . . . 746 
 
 26. Equal equities : contribution by 
 
 several purchasers to judgment 
 debts 746 
 
 27. Purchaser of part relieved against 
 
 concealed incumbrance, by the 
 other part 746 
 
 28. Barnes v. Racster . . . 747 
 
 29. Purchase set aside : allowance for 
 
 improvements .... 747 
 
 30. Unless fraud . . . .747 
 
 31. No remedy if evicted at law . 747 
 
 32. Prior incumbrancer purchasing 
 
 lets in puisne ones . . . 747 
 
 33. Mortgagee ' buying after agree- 
 
 ment for lease bound by it . 748 
 
 34. How prior incumbrances should 
 
 be kept on foot, on purchase . 748 
 
 35. Bill to perpetuate testimony upon 
 
 claims to a reversion . . 748 
 
CONTKNTS. 
 
 Ivil 
 
 SECTION II. 
 
 op THE EFFECT OP IJOTICE. 
 
 1. Notice binds a purchaser . . 749 
 
 2. Purchaser with notice bound by 
 
 parol agreement for a lease . 749 
 
 3. So by an agreement as to a judg- 
 
 ment 750 
 
 4. Purchaser whose consent is neces- 
 
 sary to validity of a lease, not 
 bound by notice . . . 750 
 
 5. Wood V. Lord Londonderry . 751 
 
 6. Eight of legatee against seller . 751 
 
 7. Purchaser bound by void estate 
 
 where he buys subject to it. — 
 So he cannot impeach annuity 752 
 
 8. Vendor may set aside leases for 
 
 fraud after sale of fee : qu. . 752 
 
 9. Lease under power at inadequate 
 
 rent apparent : sale of reversion 
 voidable '..... 752 
 
 10. Purchase under decree obtained 
 
 by fraud 752 
 
 11. Notice before payment of execu- 
 
 tion of conveyance sufficient . 752 
 
 13. Notice at time of procuring an 
 
 estate to protect, inoperative . 753 
 
 14. Purchaser without notice safe, 
 • although seller to him bought 
 
 with notice. — Purchaser may 
 buy with notice of a purchaser 
 who bought without . . . 753 
 
 15. Trustee selling and repurchasing, 
 
 bound 753 
 
 16. Notice of voluntary settlement 
 
 not binding .... 753 
 
 CHAPTER XXIV. 
 
 OP NOTICE. 
 
 SECTION I. 
 
 WHAT AMOnUTS TO NOTICE. 
 
 1. Actual or constructive . . 755 
 
 2. Actual notice : vague reports. — 
 
 General claim. — Must be in 
 tile same transaction . 
 
 3. Constructive notice 
 
 4. Notice to counsel, &c., is con 
 
 structive notice. — So to coun 
 try solicitor. — Although pur- 
 chase under a decree . 
 
 5. Subsequent assent to purchase 
 
 6. Binding, although counsel, &c., 
 
 employed partially only. — 
 Party acting for himself without 
 knowledge bound as if a solic- 
 itor employed . 
 
 7. Notice to counsel, &c., must be in 
 
 the same transaction. — Unless 
 acts are connected, or previous 
 act is remembered 
 
 8. Notice to solicitor of purchaser 
 
 not also solicitor for seller. — 
 
 755 
 755 
 
 756 
 756 
 
 . 756 
 
 757 
 
 Solicitor committing fraud on 
 seller, and acting for purchaser, 
 the latter not bound . . . 757 
 * 9. Public statute notice : private 
 
 not - 758 
 
 10. Lis pendens notice. — What is a 
 
 sufficient lis pendens. — Laches 758 
 
 11. Bill dismissed, and appeal to D. 
 
 P. . .... 758 
 
 12. Purchaser pendente lite filing a 
 
 bill 759 
 
 14. Effect of pendency of suit on the 
 
 seller's rights .... 759 
 
 15. Bellamy v. Sabine . . . 759 
 
 16. Tyler v. Thomas . . .760 
 
 17. Decrees not notice. — Unless to 
 
 account, or the like . . . 760 
 
 18. Lis pendens, unless registered, will 
 
 not bind without express notice 761 
 
 19. Judgments, though docketed, not 
 
 notice 761 
 
 [xlvi] 
 
Iviii 
 
 CONTENTS. 
 
 20. 
 
 21. 
 
 22, 
 
 23, 
 24, 
 
 25, 
 26. 
 
 27, 
 
 28, 
 29, 
 
 30. 
 
 31. 
 32. 
 33. 
 34. 
 35. 
 36. 
 37. 
 38. 
 39. 
 40. 
 41. 
 
 42. 
 
 43. 
 
 44. 
 
 Nor deeds registered. — Search 
 notice to the extent of it . 
 
 Act or commission of bankruptcy 
 not notice. — Purchaser without 
 notice not bound by secret act of 
 bankruptcy 
 
 SufEcient ground for inquiry, no- 
 tice : legal estate : title deeds 
 
 Buying of an agent . 
 
 Notice of tenancy, notice of lease, 
 or of purchase by tenant . 
 
 The cases considered . 
 
 But notice of a past tenancy un- 
 important. — If tenant is under- 
 lessee, purchaser need not in- 
 quire further ... 
 
 Lien of tenant as seller not bind 
 ing where conveyance is with a 
 receipt .... 
 
 Notice of right to easement 
 
 Statement that a bond or war- 
 rant of attorney existed, notice 
 of equitable mortgage : Penny 
 V. Watts .... 
 
 Purchaser not inquiring for deeds 
 bound by a deposit : Whitbread 
 V. Jordan 
 
 Observations on it 
 
 Dryden v. Frost .... 
 
 \ Colyer v. Finch, deposit of deeds 768 
 
 761 
 
 762 
 
 762 
 762 
 
 762 
 763 
 
 765 
 
 765 
 765 
 
 766 
 
 766 
 766 
 767 
 
 Kennedy v. Green 
 
 Hewitt V. Looseraore . 
 
 Atterbury v. Wallis 
 
 Perry v. Holl .... 
 
 Effect of not inquiring for deeds . 
 
 Notice of deed misrepresented 
 
 Notice of contract for redemption 
 
 of land tax being by an infant . 
 Notice of a covenant to rebuild 
 
 after a fire 
 
 Purchaser of, improper charity 
 
 lease. — Notice Of invalid lease 
 
 inoperative at law 
 Notice of tenancy not notice of 
 
 768 
 769 
 770 
 771 
 772 
 772 
 
 773 
 
 '773 
 
 774 
 
 lessor's title. — Want of posses- 
 sion in seller not notice of ad- 
 verse title 774 
 
 45. Kecital, &c., leading to other facts 
 
 binding 
 
 46. Eland v. Eland .... 
 
 47. Purchase from heir with notice of 
 
 a will . . . . ' . 
 
 48. Purchaser subject to all charges . 
 
 49. Unusual receipt indorsed, notice : 
 
 solicitor committing fraud and 
 acting for purchaser . 
 
 50. Notice of bills for purchase 
 
 money notice of lien : advow- 
 son : notice of lunacy 
 
 51. One estate liable in equity to clear 
 
 another of incumbrances : notice 
 of deed binds .... 
 
 52. Hamilton v. Eoyse 
 
 53. Montefiore v. Browne . 
 
 54. Peto V. Hammond 
 
 55. Notice of contemplated deed not 
 
 sufficient .... 
 
 56. Purchaser from husband under 
 
 settlement bound by the wife's 
 equities .... 
 
 58. Ambiguous recitals, mere sus- 
 
 picion of fraud not notice . 
 
 59. Action against seller for misrep- 
 
 resentation .... 
 
 60. Court rolls not notice, semhle 
 
 61. Steward of manor has notice of 
 
 the admissions . . . " . 780 
 
 62. Effect of notice of mortgage title . 780 
 
 63. Witnessing a deed not notice 
 
 64. Improper settlement under arti- 
 
 cles : the latter,- how far bind- 
 ing on a purchaser 
 
 65. General opinions on implied no- 
 
 tice 
 
 66. Jones v. Smith ... 
 
 67. Ware v. Lord Egmont: bill for 
 
 altering the law of implied no- 
 tice, lost 782 
 
 775 
 775 
 
 775 
 775 
 
 776 
 
 776 
 
 776 
 776 
 777 
 779 
 
 779 
 
 779 
 
 779 
 
 780 
 780 
 
 780 
 
 781 
 
 781 
 781 
 
CONTENTS. 
 
 lix 
 
 * SECTION II. 
 
 OP THE PEOOF OP NOTICE. 
 
 1. Not to be proved by counsel, &c. 784 
 
 2. Nor can he produce the pur- 
 
 chaser's documents . . . 785 
 
 3. "> Opinions may be withheld : old 
 
 4. y cases 785 
 
 5. Communications to attorney for 
 
 both parties. — Communications 
 by mistake to person not an at- 
 torney, not protected . . 785 
 
 Attorney a witness must prove 
 
 deed. — Map . . . .786 
 Communications upon sales and 
 purchases protected : advising 
 
 on title 786 
 
 . Purchaser how charged in ac- 
 count 786 
 
 CHAPTER XXV. 
 
 OF PLEADING A PURCHASE. 
 
 787 
 
 . 787 
 . 788 
 . 788 
 . 788 
 . 789 
 . 789 
 
 1. Ground of plea . . . , 
 
 3. Must be sworn : answer overrul- 
 
 ing or supporting plea 
 
 4. Deeds of purchase to be stated . 
 
 5. Averment of seisin 
 
 6. And of possession : reversion 
 
 7. And of payment of price . 
 
 8. And denial of, notice . 
 
 9. And particular instances to be 
 
 denied specially : possession of 
 papers 789 
 
 10. Where general denial of notice 
 
 sufiBcient 790 
 
 11. Notice to be denied by "answer 
 
 also 790 
 
 13. Plea no protection where want of 
 
 due diligence .... 790 
 
 Decree after an issue and then 
 appeal to Dom. Proc. . .790 
 
 Plea protects against a legal title 791 
 
 791 
 796 
 
 ( Review of the authorities as ) 
 ( to the extent of the plea 3 
 Decisions that it does not prevail 
 
 over a legal estate 
 I Cases contra . . . ' ■ 
 
 Attorney General v. Wilkins 
 
 Phillips V. Phillips 
 
 But relief given to a legal mort- 
 gagee 
 
 And injunction to prevent the in- 
 stitution of a clerk . 
 
 792 
 793 
 
 794 
 796 
 
 798 
 
 798 
 
 APPENDIX. 
 
 1. British Museum case, and Keppell v. Bailey, covenants not to build . . 799 
 
 2. Dropping of lives, interest, &c. 805 
 
 3. Schedule to the Declaration of Title Act, 1862 808 
 
 4. Bill intituled "An Act for further Limitation of Actions and Suits relating to 
 
 Real Property in support of the Title xif Purchasers '' 809 
 
 5. Bratt u.' Ellis, C. B., Mich. & Hil. Terms, 45 Geo. 3 812 
 
 6. Jones v. Dyke and others, Hereford Summer Assizes, cor. Macdonald, C. B. .813 
 
 7. Wyatt V. Allan, Reg. lib. B. 1777, fol. 576 . . . . . . . 814 
 
 8. Sir John Morshead and others v. Frederick and others, Ch. 20th February, 
 
 1806 ' ' 814 
 
 9. Ex parte Tomkins, L. I. Hall, 23d August, 1816 815 
 
 . [xlvii] 
 
INDEX TO CASES CITED OR INTRODUCED. 
 
 [The figures indicate the foot paging in brackets.] 
 
 Abadie v. Lobero, 
 
 
 758 
 
 Adams v. McMillan, 
 
 42, 129, 134, 138, 
 
 Abbot V. Gibbs, 
 
 
 658, 660 
 
 
 
 140, 147, 359 
 
 V. Stratton, 
 
 
 517, 527 
 
 V. Nichols, 
 
 
 163, 165 
 
 Abbott V. Abbott, 
 
 
 169 
 
 V. Paige, 
 
 
 4 
 
 u. Allen, 
 
 549, 
 
 553, 677 
 
 V. Smith, 
 
 
 125 
 
 V. Darnell, 
 
 
 451 
 
 V. Taunton, 
 
 389 r 
 
 ., 405 n., 664 
 
 V. Draper, 
 
 
 236 
 
 V. Townsend, 
 
 
 151 
 
 V. Geraghty, 
 
 
 766, 781 
 
 V. Weare, 
 
 
 273 
 
 V. Sworder, 4, 
 
 273, 
 
 275, 647, 
 
 V. Wheeler, 
 
 
 728 
 
 
 
 652 
 
 ■V. Williams, 
 
 
 239, 241 
 
 Abdy V. Loved ay, 
 
 
 741 
 
 Adamson v. Evitt, 
 
 
 6 
 
 Abeel v. Radcliff, 
 
 
 140 
 
 Aday v. Echols, 
 
 
 155, 233 
 
 Abell V. Howe 
 
 728 
 
 , 744, 757 
 
 Addams v. Heiiernan, 
 
 679 
 
 Abendrotb v. Greenwich 
 
 > 
 
 241 
 
 Adderley v. Dixon, 
 
 
 210 
 
 Aberaman Iron Works v. 
 
 Wickens, 
 
 Addies' Charity, ex parte, 
 
 82, 88 
 
 3, 55, 232 
 
 , 233 
 
 , 237, 244 
 
 Addington v. Allen, 
 
 
 4 
 
 Aberdeen v. Watlin, 
 
 
 101 
 
 Addis V. Campbell, 
 
 253, 
 
 276, 445, 742 
 
 Aberdeen Ry. Co. v. Blakie, 
 
 687 
 
 Addison v. Dawson, 
 
 
 686 
 
 Abney v. Kingsland, 
 
 
 706 
 
 V. Hack, 
 
 
 124 
 
 Acherley v. Acherley, 
 
 
 , 701 
 
 Adkins v. Watson, 
 
 
 134 
 
 V. Roe, 
 
 
 484 
 
 Agar V. Athenaeum Assui 
 
 . Soc. 77 
 
 Acker V. Phoenix, 
 
 
 211 
 
 V. Macklew, 
 
 
 135, 288 
 
 Ackley v. Elwell, 
 
 
 240 
 
 Ahearne v. Hogan, 
 
 
 286 
 
 Ackroyd v. Smith, 24 n. 
 
 585, 588, 
 
 Aicken v. Macklin, 
 
 
 540, 746 
 
 
 597 n., 801 
 
 Aiken v. Bruen, 
 
 
 714 
 
 Acland v. Gainsford, 
 
 
 54 
 
 V. Kilburne, 
 
 
 785 
 
 V. Gaisford, 
 
 
 633, 643 
 
 V. Sandford, 
 
 
 573 
 
 Acraman v. Corbett, 
 
 
 719 
 
 V. Smith, 
 
 
 789 
 
 V. Price, 
 
 
 233 
 
 Ainslie v. Boynton, ' 
 
 
 381 
 
 Acton V. Pierce, 
 
 
 220 
 
 V. Medlycott 
 
 
 5 
 
 Adams v. Adams, 
 
 
 271, 715 
 
 Airey v. Hall, 
 
 
 719 
 
 V. Andrews, 
 
 
 124 
 
 Albea v. Griffin, 
 
 
 151, 153 
 
 V. Blackwall Ry. 
 
 Co. 
 
 210 
 
 Albra v. Griffin, 
 
 
 747 
 
 V. Broke, 
 
 
 217, 218 
 
 Alcock V. Delay, 
 
 
 140 
 
 V. Cuddy, 
 
 
 728, 775 
 
 Aldborough, Lord v. 
 
 Try 
 
 3, 276, 277, 
 
 V. Dale, 
 
 
 569, 572 
 
 
 
 284 
 
 V. Fairbain, 
 
 
 168 
 
 Alder v. Boyle, 
 
 
 4 
 
 V. Frye, 
 
 
 159 
 
 Alderson v. White, 
 
 
 188 n., 199 
 
 V. Gamble, 
 
 
 207 
 
 Aldrich v. Aldrich, 
 
 
 762 
 
 V. Heathcote, 
 
 
 231 
 
 V. Cooper, 
 
 
 679 n., 680 
 
 V. Lloyd, 
 
 
 443 n. 
 
 Aldridge v. Dunn, 
 
 671, 
 
 675, 681, 682 
 
 V. London & Blackwall 
 
 V. Westbrook, 
 
 108 
 
 Ry. Co., 
 
 
 74, 79, 81 
 
 Alexander, ex parte, 
 
 
 687 
 
Ixii 
 
 INDEX TO CASES CITED OK INTRODUCED. 
 
 Alexander v. Crosbie, 169, 171, 346, 
 396, 405 n., 428, 438, 519 
 V. Crystal Palace Ry. 
 
 Co. 73 
 
 V. McMurray 679 
 
 V. Newton, 172 
 
 V. Todd, 714, 719 
 
 V. Warrance, 702, 703, 706 
 
 Alison V. Kurtz, 645 
 
 Allen V. Allen, 559 
 
 V. Anderson, 358 
 
 V. Anthony, 762 
 
 V. Ashley School Fund, 464 n. 
 
 V, Atkinson, 337 
 
 V. Barker, 236 
 
 V. Bennet, 129, 137, 142, 146, 
 
 671 
 
 w. Blunt, 611 
 
 V. Booker, 152 
 
 V. Bower, 154, 155 
 
 V. Cameron, 1 70 
 
 V. Chambers, 149, 151, 155 
 
 ■V. Cooper, 257 
 
 !'. Culver, 577 
 
 V. England, 482 
 
 V. Greene, 577 
 
 V. Hammond, 24 7 
 
 V. Harrison, 785 
 
 V. Holton, 605 
 
 V. Jaquish, 158 
 
 U.Kingsbury, 169,170 
 
 V. Knight, 740, 772 
 
 u. Little, 577 
 
 V. McCalla, 756 
 
 V. Martin, 396 
 
 V. Mille, 254 
 
 I). Rumph, 172 
 
 V. Sayward, 496, 556 
 
 V. Smith, 356 
 
 V. Stephanes, 11 
 
 V. AVinston, 7 
 
 V. Wooley, 577, 581 
 
 Allen's Estate, 151, 152, 154, 165 
 
 Allender v. Ritson, 668 
 
 Allerton, in re, 472 
 
 Alley V. Deschamps, 260, 262, 268 
 
 AUeyn v. AUeyn, 183, 184, 192 
 
 Alleyne v. Alleyne, 704 
 
 AUfrey v. Allfrey, 254 
 
 AUis V. Billings, 208 n. 
 
 Alna V. Flummer, 145, 147, 361 
 
 Alpass V. Watkins, 400 n. 
 
 Alsop, in re, 92 
 
 V. Oxford, Lord 430 
 
 V. Patten, 153 
 
 Alston's case, ire re, 83 
 
 Alston V. Eastern Counties Ky. Co. 
 
 85 n. 
 
 V. Grant, 58 
 
 V. Munford, 680 
 
 V. Outerbridge, 1 
 
 Altham's case, 169 
 
 Altham, Lord, v. Anglesea, Earl of 702 
 
 Althorj)j,ea; parte, 90 
 
 Alton V. Pickering, 179 
 
 Alvanley v. Kinnaird, 109, 215, 314 
 
 Alven V. Bond, ' 118 
 
 Ambrose v. Ambrose, 50, 99, 701 
 
 Amcourt v. Elever, 239 
 
 American Ins. Co. v. Oakley, 99, 114, 
 
 117, 120 
 
 Ameriscoggin Bridge v. Bragg, 124 
 
 Ames V. Browping, 687 
 
 V. St. Paul, &c. R. R. Co. 169 
 
 Amory v. Reilly, 680 
 
 Amy's case, 7 
 
 Ancaster v. Meyer, 195 
 
 Auclay u. Lewis, 175 n. 
 
 Anderson, in re, 473 
 
 V. Anderson, 389 n. 
 
 V. Chick, 145, 147, 151 
 
 V. Elsworth, 722 n. 
 
 V. Foulke, 106, 114, 117, 120 
 
 V. Fox, 691 
 
 V. Green, 714 
 
 V. Harold, 134, 142 
 
 V. Higgins', 17, 366 
 
 V. Jones, 701 
 
 V. Layton, 755 
 
 V. Lincoln, 549 
 
 V. Radcliffe, 357, 693 
 
 V- Roberts, 720 
 
 V. Van Alen, 378 
 
 V. Wallace, 287 
 
 V. White, 240 
 
 Anderton v. Arrowsmith, 611 
 
 Andrew's case, 327 
 
 Andrew v. Andrew (8 De G. M. 
 
 & G.), 41, 169, 187 
 
 V. Andrew (3 Sim.), ' 350 
 
 V. Andrew (3 Sm. & 
 
 Gif.), 186, 187 
 
 V. Newcomb, 125 
 
 V. Wrigley, 668, 669, 753 
 
 Andrews v. Brown, 233 
 
 V. Emerson, 115 
 
 V. Essex Ins. Co. 160 
 
 V. Este, 57 
 
 V. Hailes, 376 
 
 V. Hobson, 721 
 
 u. Jones, 701 
 
 V. Lyons, 743 
 
 t). Paradise, 610 
 
INDEX TO CASES CITED OE INTRODUCED. 
 
 Ixiii 
 
 Andrews v. Sparhawk, 487, 658, 660 
 
 Angelo, in re, 203, 399 
 
 Angier w. Stennard, 70 
 
 Anglesea, Lord v. Annesley, 167 
 
 Anketel v. Converse, 671, 675 
 
 Annan w. Merritt, 151 
 
 Annesley v. Ashurst, 108 
 
 V. Mnggeridge (MS,), 648 
 
 V. Muggridge, 51, 52 
 
 Anon., 1 Bro. C. C. 158, 274 
 
 Cartli. 15, 697 
 
 2 Cha. Ca. 19, 551 
 
 2 Cha. Ca. 53, 206 
 
 2 Cha. Ca. 101, 788 
 
 2Cha. Ca. 136, 762 
 
 2 Cha. Ca. 161, 790 
 
 2 Cha. Ca. 208, 738 
 
 Chan. 7 Sept. 1803, MS. 393 
 
 Chan. 22 July, 1806, MS. 
 
 102 n. 
 Chan. 25 July", 1808, 32 
 
 Chan. 16 July, 1816, MS. 105 
 2 Dick. 241 
 
 Dougl. 384, 171 n. 
 
 Fonbl. n. (r), 1 Tre. Eq. ' 301 
 2 Freem. 153, 324, 356, 548, 
 549, 550 
 2 Freem. 128, 703 
 
 2 Freem. 137, 762 
 
 2 Freem. 155, 201 
 9 Hare App. 11, 225 
 1 K. & J. 719, 118 
 L. J. Hall, 16 July, 1816, 
 
 MS. 230 
 
 3 Mad. 494, 115 
 6 Mad. 10, 63 
 
 , 8 Mass. 370, 785 
 
 Moo. 1 79, 592 n. 
 
 Mose, 96, 658, 660 
 
 Mose, 246, ■ 197 
 
 1 Salk. D. P. 153, 658 n. 
 
 Sel. Cha. Ca. 57, 708 
 
 Sk!n. 159, 173 
 
 1 Str. 95, 169 
 
 1 Vent. 361, 123, 125 
 
 2 Vent. 361, No. 2, 518, 789 
 2 Vent. 361, No. 3, 701 
 1 Vern. 318, 758 
 iVes. ir. 286, 118 
 
 1 Ves.jr. 453, 115, 118 
 2Ves.jr. 335, 101 
 
 2 Ves.jr. 487, 115 
 
 5 Ves. 148, 115 
 
 6 Ves. 470, 154, 156 
 6 Ves. 513, 118 
 5 Vin. Abr. 522, pi. 38, 154, 
 
 , 155, 165 
 
 Anon. 5 Vin. Abr. 523, pi. 40, 
 
 154, 155 
 
 Anson v. Lee, 356 
 
 V. Towgood, 101, 105, 292 
 
 Anson, Lord, v. Hodges, 641 
 
 Anspach, Margravine of, v. Noel, 343, 
 
 353, 652 
 Anstee v. Nelms, 477 
 
 Anstice v. Brown, 685 
 
 Anstruther v. East of Fife Ry. Co. 86 n. 
 Anthony v. Leftwick, 151, 152, 153, 
 
 155 
 
 Appleton V. Binks, 57 
 
 V. Bird, 698 
 
 V. Chase, 236 
 
 Appowel V. Monnoux, 585 
 
 Apthorpe v. Comstock, 445, 742 
 
 Archbold v. Scully, 481 
 
 Arden v. Patterson, 689 
 
 Ardglasse, Lord, v. Muschamp, 276 
 
 Argenbright u. Campbell, 142, 719, 755 
 
 Arkwright t'. Gell, 492 
 
 Arledge v. Rooks, 241 
 
 Arlin v. Brown, 671 
 
 Armfield v. Tate, 209, 686 
 
 Armiger v. Clark, 21 7, 224 
 
 Armitage v. Askham, 91 
 
 Arms V. Ashlej', 158 
 
 Armstrong v. Burrows, 169 
 
 V. Caldwell, 493 
 
 V. Campbell, 484, 640, 687 
 
 V. Huston, 688 
 
 V. Kattenhorn, 152 
 
 V. Ross, 671 
 
 Arnald v. Arnald, 186, 192 
 
 Arnell v. Bean, 723 n. 
 
 Arnold, re, 80, 85 
 
 V. Brown, 687, 688, 689, 692 
 
 V. Gilbert, 70 
 
 V. Mattison, 1 74 
 
 V. Richmond Iron Works, 
 
 208 n. 
 Arraman v. Corbett, 706 n. 
 
 Arrington v. Liscom, 475 
 
 Arrowsmith i\ Van Harlingen, 688 
 Artz V. Grove, ' 149 
 
 Arundell v. Phipps, 686 
 
 Arundell, Lady, v. Phipps, 706 
 
 Ascam v. Smith, 326 
 
 Ascough V. Johnson, 556 
 
 Ascutney Bank v. Ormsby, 1 26 
 
 Ashbee v. Cowell, 120 
 
 Ashe, in re, 9 
 
 Asher V. Whitlock, 476 
 
 Ashley v. Ashley, , 492 
 
 V. Baillie, 756, 757 
 
 Ashmore v. Evans, 149 
 
Ixlv 
 
 INDEX TO CASES CITED OR INTRODUCED. 
 
 Ashton u. Wood, 16,21,66,117,315, 
 405 n., 665, 666 
 Ashton Charity, re, 202 n. 
 
 Ashurst V. Ashurst, 60 
 
 t). Mill, 172 
 
 Ashwell's Will, in re, 479, 489 
 
 Ashworth v. Mounsey (2 Com. L. 
 
 '&.), . 17,396 
 
 V. Mounsey (9 Exch.), 17, 
 
 337 
 
 Astbury, ex /larte, 33 
 
 Astley V. Manchester Ry. Co. 73 n. 
 
 Aston V. Aston, 788 
 
 V. Curzon, 789 
 
 Astor V. Miller, 577, 598 
 
 V. Wells, 719, 756 
 
 Astreen v. Flanagan, 703, 706 
 
 Atcherley v. Vernon, 175, 183 
 
 Atchison v. Dickson, • 291 n. 
 
 Athenseum Life Ass. Soc, re, 77 
 
 V. Pooley, 376, 378 
 
 Atherstone v. Bostock, 239 
 
 Athowe V. Heming, 583 
 
 Atkins V. Bahrett, 5 73 
 
 V. Chilson, 491, 596 
 
 V. Delmege, 757, 776 
 
 V. Rowe, 700 
 
 V. Sawyer, 518 
 
 Atkinson, in re, 378 
 
 V. Brown, 271 
 
 V. Phillips, 714 
 
 0. Smith, 206 
 
 Atkinson's Estate, in re, 762 
 
 Atlantic Dock Co. v. Leavitt, 577, 596 
 
 Attenborough v. Edwardes, 160 
 
 Atterbury v. Wallis, 756, 767, 770, 
 
 771 
 Attorney General v. Alford, 640 
 
 i;. Andrew, 521 
 
 u. Backhouse, 774 
 h. Bagg, 704 
 
 V. Briggs, 92 
 
 V. Brown, 571 
 
 u. Brunning, 177 
 V. Christ Ch. 629 
 V. Christ's Hos- 
 pital, 723 
 V. Clapham, 169 
 V. Clarendon, 
 
 Lord, 687 
 
 V. Corn's Woods 
 
 and Forests, 171 
 V. Cox, 199, 425, 555 
 V. Davey, 485 
 
 V.Day, 109, 148, 193, 
 316, 317 
 V. Deane, 556 
 
 Attorney General v. Dudley, Lord, 
 
 691,694 
 V. Eardley, Lord, 
 
 390, 477 
 V. East. Count. 
 
 Ry. Co. 87 
 
 V. Ellison, 445 n. 
 V. Evelme Hos- 
 pital, 743 
 V. Flint, 484 
 u. Floyer, 556 
 V. Forster, 170 
 V. Gower, 756, 789 
 V. Gower, Lord, 723 
 V. Hall, 722 
 V. Hallett, 556 
 V. Lockley, 816 
 V. Lorton, Lord, 556 
 V. Ludlow, Cor- 
 poration of, 640 
 V. Magdalen Col- 
 lege, 485 
 V. Maxwell, 390, 477 
 V. Newark, Cor- 
 poration of, 107 
 ' V. Newcastle, 
 
 Corp. of, 719 
 V. Parker, 170 
 
 V. Payne, 485 
 
 V. Pearce, 425, 555 
 V. Perse, 485 
 
 V. Potter, 669 
 
 V. Purmort, 608 
 
 V. Sands, 616, 619, 
 625 
 V. Sibthorp, 556 
 
 V. Sitwell, 160 
 
 V. Stephens, 755, 
 763, 783 
 V. Vigor, 185 
 
 V. Wales, Prince 
 
 of, 445 
 
 V. Wilkins, 485, 794, 
 
 795, 796, 797 
 
 V. Yelverton, 556 
 
 Atwater v. Fowler, 484 
 
 Attwood V. Clark, 271 
 
 V. Small, 248, 246, 248, 251, 
 
 330 
 
 V. Taylor, 640, 641, 644 
 
 Atwood V. Cobb, 56, 134, 135, 165, 271 
 
 V. Vincent, 671 
 
 Aubrey v. Denny, 116 
 
 V. Fisher, 32 
 
 Aubrey's Estate, in re, 78, 90 
 
 Audendried v. Betteley, 743 
 
 Audsley v. Horn, 473 
 
INDEX TO OASES CITED OR INTRODUCED. 
 
 Ixv 
 
 Austen v. Halsey, 679, 679 n. 
 
 u. Martin, 666 
 
 Austin V. Brown, 702 
 
 V. Cambridgeport Parish, 462 
 
 V. Chambers, 
 
 V. Croome, 
 
 V. Imus, 
 
 V. Llewellyn, 
 
 o. Sawyer, 
 Avarne v. Brown, 
 Aveling v. Knipe, 
 Averall v. Wade, 
 Averill ?;, Guthrie, 
 
 V. Hedge, 
 Avery v. Chappel, 
 
 V. Griffin, 
 
 V. Kellogg, 165, 
 Avison V. Holmes, 
 Awbry ['. Keen, 
 Ayer v. Hawkes, 
 Ayers v. Pease, 
 Ayles o. Cox (16 Beav.), 
 V. Cox (17 Beav.), 
 
 ». Cox (32 L. T.), 
 Aylesford's, Earl of, case, 
 Aylett V. A^ton, 
 
 V. King, 
 Ayliflte c Murray, 
 
 V. Tracy, 
 Ayres v. Mitchell, 
 
 594 n. 
 
 689, 690 
 
 433 
 
 640, 641 
 
 483 
 
 125, 161 
 
 353, 426 
 
 697, 698 
 
 744, 746 
 
 196, 728 
 
 133 
 
 171 
 
 206, 234 
 
 260, 261, 266 
 
 525 
 
 549 
 
 179 
 
 221 
 
 29, 31,303 
 
 562 
 
 204 
 
 151 
 
 382, 383 
 
 253 
 
 692 
 
 139 
 
 252 
 
 B. 
 
 Babcock v. Eckler, 714 
 
 V. Perry, 99 
 
 V. Smith, 172 
 
 V. Wilson, 240, 573 
 
 V. Wyman, 174 
 
 Back V. Andrews, 706 
 
 V. Kett, 185 
 
 Backentoss v. Stabler, 10 
 
 Backhouse v. Bonomi, 59 
 
 Backus ». McCoy, 611 
 
 Bacon v. McTntire, 486 
 
 V. O'Connor, 755 
 
 V. Simpson, 291 
 
 'Ba.dcock, ex parte, 687 
 
 Badely v. Vigurs. 598 
 
 Baden v. Pembroke. Earl of, 177 
 
 Badger v. Badger, 253 
 
 Badhan i\ Shiel, 461 
 
 Badlam ?'. Tucker, 728 
 
 'Bage, ex parte, 687,692 
 
 Baggallay v. Pettit, 240 
 
 Baglehole r. Walters, 333 
 
 Bagley v. Bailey, 518 
 
 Baham v. Bache, 
 Baikie i'. Chandless, 
 Bailey v. iEtna Ins. Co. 
 
 V. Appleyard, 
 
 V. Bailey, 
 
 V. Biddle, » 
 
 V. Collett, 
 
 V. Ekins, 
 
 V. Jackson, 
 
 V. Miltenberger, 
 
 V. Ogden, 
 
 V. Richardson, 
 
 V. Robinson, 
 
 V.' Scott, 
 
 !'. Snyder,. 
 
 V. Sweeting, 
 
 V. Watkins, 
 Baillie v. Chaigneau, 
 
 V. Jackson, 
 
 V. Lockhart, 
 Baily v. Baily, 
 Bain v. Fothergill, 
 Bainbridge v. Moss, 
 V. Wade, 
 Baines v. McGee, 
 
 V. Williams, 
 Bainway v. Cobb, 
 Baird v. Baird, 
 
 V. Blairgrove, 
 
 V. Fortune, 
 Baker v. Beat, 
 
 V. Beekright, 
 
 V. Bliss, 
 
 V. Bradley, 
 
 V. Bulstrode, 
 
 V. Carson, 
 
 V. Carter, 
 
 V. Chalfant, 
 
 V. Dibbin, 
 
 V. Gilman, 
 
 •u. Harris, 
 
 V. Hathaway, 
 
 V. Henderson, 
 
 V. Hunt, 
 
 V. Leathers, 
 
 V. Morgan, 
 
 V. Payne, 
 
 V. Bead, 
 
 V. Seaborn, 
 
 V. Souter, 
 
 V. Vining, 
 
 V. Wheeler, 
 
 V. Whiting, 356, 
 
 Balbec v. Donaldson, 
 Balch V. Smith, 
 V. Symes, 
 
 10 
 
 547 
 
 66 
 
 492, 494 
 
 160, 171 
 
 484 
 
 563, 628, 632 
 
 660 
 
 482 
 
 610 
 
 140 
 
 762 
 
 688, 694 
 
 611 
 
 324 
 
 138 
 
 689 
 
 115 
 
 110 
 
 182 
 
 98 
 
 358 
 
 357 
 
 129 
 
 688 
 
 254 
 
 33 
 
 758 
 
 158 
 
 24 n., 58, 743 
 
 285 
 
 169 
 
 762 
 
 246, 253, 276 
 
 614 
 
 153 
 
 69.1 
 
 460 
 
 396 
 
 714 
 
 601 
 
 206, 213 
 
 434 
 
 577 
 
 703 
 
 no 
 
 173 
 
 253, 696 
 
 2 
 
 111 
 
 701, 702 
 
 124 
 
 484, 687, 689, 
 
 692, 694 
 
 702 
 
 239 
 
 445 
 
INDEX TO CASES CITED OR INTRODUCED. 
 
 Balcom v. New York Life Ins. & 
 
 Trust Co. 790 
 
 Baldey «. Parker, 319 
 
 Baldock, ex parte, 63 
 
 Baldwin v. Belcher, 182, 518, 539 
 
 1.. Boulter, 295 
 
 V. Calkins, 58, 493 
 
 V. Campfield, 701 
 
 V. Johnson, 762 
 
 V. Lowe, 175 
 
 V. Munn, 358, 361 
 
 V. Rochfort, 286 
 
 u. Salter, 264, 268 
 
 Balfour v. Wolland, 405 n., 659, 660, 
 
 661 
 
 Balgney v. Hamilton, 708 
 
 Ball !). Burnford, 718 
 
 V. Carew, 692 
 
 v. Harris, 656, 660, 662 
 
 V. Storie, 161 
 
 Ballard v. Ballard, 463 
 
 V. Butler, 492 
 
 V. Way, 27 
 
 Ballon V. Talbot, 44 
 
 Balls V. Margrave, 444 
 
 Bally V. Wells, 577, 584 n., 591 n., 
 
 594, 594 n. 
 
 Balmanno v. Lumley, 306, 351, 382, 
 
 383 
 Baltimore v. McKim, 747 
 
 V. Williams, 714 
 
 Baltimore, &c. Steamboat Co. v. 
 
 Brown, 158 
 
 Bamford v. Sliuttleworth, 53 
 
 V. Watts, 655 
 
 Banbury, Lord, v. Briscoe, 443, 445 n. 
 Bancks v. Ollertpn, 472 
 
 Bancroft v. Consen, 708, 755, 761, 762, 
 
 775 
 
 t'. Warden, 1 79 
 
 Bandon, Lord, v. Becher, 110, 112, 
 
 669 
 Bandy v. Cartwright, 496 n. 
 
 Bangor Boom Co. v. Whitney, 76 
 
 ]5angor House v. Brown, 26 
 
 Bank v. Tyrrell, 690 
 
 Bank of Alexandria v. Patton, 714, 761 
 Bank of England case, 699 n. 
 
 Bank of London v. Tyrrell, 693 
 
 Bank of United States v. Carring- 
 
 ton, 701 
 
 V. Daniel, 484 
 
 V. Davis, 756, 
 
 757 
 
 V. Housman, 
 
 714 
 Bank of Utica v. Finch, 728 
 
 Bank of Utica v. Mesereau, 556, 785, 
 
 786, 788 
 
 Bank of Westminster v. Whyte, 174 
 
 Banks V. Amer. Tract Society, 491 
 
 V. Banks, 115 
 
 V. Brown, 713 
 
 V. Judah, 253, 484, 687 
 
 V. Ogden, 26 
 
 V. Sutton, 624 
 
 Bannatyne v. Barrington, 752 
 
 V. Leader, 445 n. 
 
 Banner v. Jackson, 785 
 
 Bannerman v. Clarke, 637, 654 
 
 Bannon v. Bean, 125, 700 
 
 V. Urton, 126 
 
 Baptist Church v. Bigelow, 42, 129, 
 
 140, 147 
 Barber i;. Morris, 199 
 
 Barclay, ex parte, 33 
 
 V. Raine, 389 n., 405 n., 453, 
 453 n. 
 Bardell ». Spinks, 13 
 
 Barford v. Barford, 225 
 
 Bargate v. Shortridge, 76 
 
 Barham v. Clarendon, Earl of, 195, 
 
 708, 716 
 
 V. Kiehols, ' 361 
 
 V. Thanet, Lord, 195 
 
 Bariekman i'. Kuykendall, 130, 151, 
 
 152 
 
 Baring ». Moore, , 100 
 
 Barkhamted v. Case, 549 
 
 Barker, in re, 556 
 
 t. Damer, 582, 583 
 
 V. Devonshire, Dnke of, 658, 
 
 660 
 
 V. Green-wood, 49 
 
 ('. Harper, 104 
 
 V. Hill, 177 
 
 V. Holford, 101 
 
 V. McCoy, 677 
 
 u. North Staffordshire Ky. 
 
 Co. SS 
 
 V. Richardson, 376 
 
 V. Roe, 748 
 
 V. Sraarks, 679 
 
 V. Troy & Rutland B. E. 
 
 Co. 158, 165 
 
 V. Vansommer, 277 
 
 Barkett v. Cafe, 688 
 
 Barksdale v. Toomer, 240 
 
 Barkworth v. Young, 122, 140 n., 149, 
 
 463 
 Barley v. Walford, 744 u. 
 
 Barling v. Blshopp, 706 n. 
 
 Barlou 0. Vanheythuysen, ■ 714 
 
 Barlow v. Bell, 254, 747 
 
INDEX TO CASES CITED OE INTRODUCED. 
 
 Ixvii 
 
 Barlow v. McKinley, 610 
 V. Osborne, 101, 113, 116, 121 
 V. Eliodes, 743 
 V. Scott, 233 
 Barnaby v. Barnaby, 209, 686 
 Barnard v. Cave, 23, 160 
 V. Darling, 1 58 
 V. Hunter, 227 
 V. Jewett, 701 
 V. Lee, 260, 264, 268 
 V. Pope, 481 
 Barnard's Banking Co. in re, 758 
 Barnardiston, Sir John v. Ling- 
 wood, 276 
 Barnell, ex parte, 688 
 Barnes's Appeal, 30] 
 Barnes v. Barnes, 124, 126 
 V. Crowe, 185 
 V. Gay, 457 
 V. Haynes, 492 
 V. McChristie, 756 
 V. Racster, 747 
 V. Wood, 310, 749 
 Barnett v. Gaines, 343, 345, 386, 601 
 V. Spratt, 275 
 V. Weston, 738 
 V. Wheeler, 16 
 Barnewall v. Harris, 3 1 2 
 Barney v. Little, 761 
 V. Patterson, 147 
 Barnfather v. Jordan, 686 
 Barnford v. Shuttleworth, 237 
 Barnhart v. Greenshields, 765 
 Barns v. Canning, 75s 
 Barnwell v. Harris, 365, 383, 394, 399 
 V. Iremonger, 195, 671 
 Bair V. Gibson, 247, 356 n. 
 Barr's Trust, in re, 762 
 Barrack v. McCuUoch, 707 
 Barraud v. Archer, 7, 27 
 Barren v. Joy, 700 
 Barrett, ex parte, 83 
 u. Bermingham, 111 
 V. Birmingham, 488 
 K.Blake, 111 
 V. Buxton, 212 
 V. Gaines, 265 
 V. Gomeserra, 151, 273 
 V. Porter, 611 
 V. Ring, 310 
 Barribeare v. Brant, 273, 698 
 Barrineau v. McMurray, 714 
 Barrington, ex parte, 343, 353 
 V. Home, ■ 206 
 Barron v. Barron, 701, 708 
 V. Richard, 577 
 Barrow v. Barrow, 743 
 
 Barrow v. Richard, 
 
 596 
 
 V. Wadkin, - 
 
 685 
 
 Barruso v. Madan, 
 
 239 
 
 Barry v. Barrymdre, Lord, 
 
 145 
 
 V. Croskey, 
 
 250 
 
 V. Harding, 
 
 195 
 
 V. Marriott, 
 
 82 
 
 V. Whitney, 
 
 690 
 
 Barstow v. Gray, 
 
 129 
 
 V. Kilvington, 
 
 172 
 
 Bartholomew v. Candee, 
 
 577 
 
 Bartholomew's Hospital, Trustees 
 
 of, 90 
 
 Bartlett v. Bartlett, 245, 378, 702, 717 
 
 V. Blanton, 386, 425, 433 
 
 i". Boyd, 556 
 
 u. Drake, 243 
 
 V. Gouge, 456 
 
 i;. Pearson, 381 
 
 V. Pickersgill, 150, 702, 703 
 
 V. Purnell, 16, 147 
 
 V. Randall, 157 
 
 V. Salmon, 28, 31, 213, 250, 
 
 30), 654 
 
 V. Tuchin, 259 
 
 V. Wood, 646 
 
 Bartley v. Bartley, 666 
 
 Barton v. Downes, Lord, 302, 392 
 
 V. Fitzgerald, 605, 606 
 
 V. Latour, 109, 655 
 
 I/. Vanheythuysen, 7u6, 713 
 
 Barton or Stone v. Vanheythuysen, 715 
 
 Bascaweu v. Cook, 591 u., 593 
 
 Bascomb v. Beckwith, 14 
 
 Basevi v. Serra, 779 
 
 Basford V. Pearson, 126, 153, 206, 247, 
 
 645 
 Basingstoke, Mayor, &c. of, v. Bol- 
 ton, Lord, 375 
 Baskcomb v. Phillips, 262, 351, 382 
 Baskett v. Cafe, 149 
 Basset u. Nosworthy, 738, 789, 791, 
 
 797 
 Bassford v. Blakesley, , 445 
 
 Bastard's case, 372 
 
 Batchelder u. Sturgis, 611 
 
 Batchelor v. Middleton, 486 
 
 Bateman v. Ashton-under-Lyne, 
 
 Mayor, &c. of, 76 
 
 V. Johnson, 573 
 
 V. Philips, 129, 238, 444 
 
 V. Shore, 699 n. 
 
 Bates V. Bonner, 104, 116, 119 
 
 V. Brothers, 523 
 
 V. Delavan, 247, 316 
 
 V. Hewitt, 1 
 
 V. Johnson, 738 
 
Ixviii 
 
 INDEX TO CASES CITED OR INTRODUCED. 
 
 Bates V. Norcross, 556, 761 
 
 V. Tappan, 523, 540 
 
 Battersbee v. Farrington, 718 
 
 Battersby v. Rochfort, 728 
 
 Battishill v. Reed, 493 
 
 Battle V. Roolioster City Bank, 236 
 
 V. Speight, ' 462 
 
 Baugh V. Price, 253, 276, 286, 747 
 
 V. Ramsey, 171 
 
 Baum u. Dubois, 175,241 
 
 i'. Grigsby, 671, 675, 683 
 
 Baumau v. Matthews, 234 
 
 Baumann v. James, 136, 138, 140 
 
 Baumgarten ». Guessfield, 701 
 
 Bawtree v. Watson, 277, 286 
 
 Baxendale v. Seale, 314 
 
 Baxter v. Bradbury, 577, 610, 611 
 
 V. Brand, 627, 630 
 
 V. Conolly, 210, 341 
 
 V. Costin, 688 
 
 ,'. Gray, 126 
 
 V. Lewis, 241 
 
 V. Ryerss, 611 
 
 Bay II. Coddington, 713 
 
 Bayard v. Norris, 762 
 
 Bayles V. Baxter. 701, 702 
 
 Bayley v. Fitzmaurice, 146 
 
 u. Greenleaf, 671, 680, 681, 682 
 
 V. Wilkins, 055 
 
 Baylis v. Newton, 705 
 
 Baynham v. Guy's Hospital, 169 
 
 Baynton, ex parte, 687 
 
 Beach v. Raritan, &c. R. R. Co. 130 
 
 V. Steele, 573 
 
 Beaoham v. Eckford, 169 
 
 Beadon v. King, 253, 692, 734, 735, 
 
 785 
 
 Beal V. Gordon, 728, 762 
 
 V. McKiernan, 687 
 
 V. Seiveley, 386 
 
 V. Warren, 712, 714 
 
 Beale v. Hayes, 40 
 
 V. Sanders, 38 
 
 V. Symonds, 295, 405 n. 
 
 V. Tennant, 203 
 
 Beaman v. Buck, 151, 236 
 
 Bean v. Atwater, . 239 
 
 V. Herriek, 4 
 
 V. Quimby, 785 
 
 V. Simpson, 378 
 
 V. Smith, 712, 730, 722 n., 753 
 
 Bear u. Whisler, 671 
 
 Bearce v. Jackson, 577, 599 
 
 Beard v. Kirk, ' 563 
 
 V. Westcott, 718 
 
 Beardmer v. London, &c. Ry. Co. 77 n. 
 
 Beardsley v. Knight, 1 71 
 
 Beatnifl'u. Smith, 
 Beatson «. Beatson, 
 Beattie v. Butler, 
 Beatty v. Gregory, 
 Beaty v. Whitaker, 
 
 728 
 719 
 755 
 124 
 753 
 
 Beaufort, Duke of, u. Glynn, 232, 236, 
 
 563 
 
 V. Patrick, 124, 749 
 
 U.Phillips, 267, 
 
 524 n. 
 
 Beaufoy's Estate, in re, 83 
 
 Beaumont, ex parte, 64 
 
 V. Bramley, 172 
 
 V. Dukes, 25 
 
 V. Mountain, 414 
 
 V. Salisbury, Lord, 405 n. 
 
 Beaupland v. McKeen, 549, 611 
 
 Beavan v. M'Donnell, 208, 686 
 
 V. Oxford, Lord, 531 n., 532, 
 
 536 n., 540 
 
 Bebb V. Bunny, 99, 632 
 
 Bebee v. Swartwout, 742 
 
 Bechinall v. Arnold, 741 
 
 Beck V. Graybill, 701 
 
 V. Kantorowicz, 699 
 
 ly. Simmons, 573 
 
 V. Uhrich, 753 
 
 Beckett v. Cordley, 781 
 
 Beckford v. Beckford, 703 
 
 (;. Wade, 253 
 
 C-. Wildman, 445 
 
 Beckwith v. Benner, 786 
 
 V. Kouns, 385, 386 
 
 V, Marryman, 601 
 
 Beddoe v. Wads worth, 577 
 
 Beddoes, ex parte, 89 
 
 Bedel v. Loomis, 4673 
 
 Bedell v. Smith, 241 
 
 Bedford v. Backhouse, 728 
 
 i;. Bagshaw, 377 
 
 V. Bradford, 482 
 
 V. Forbes, 529 
 
 Bedford's, Duke of, case, 145, 597, 799 
 
 Bedford, Duke of, v. Abercorn, Lord, 
 
 172 
 V. British Museum, 
 597 
 Bedford, Earl of, v. Romney, Earl of, 
 
 160 
 Beebe v. Griffing, 460 
 
 V. Button, 569 
 
 V. Swartwout, 244, 600 
 
 Beech v. Keep, 719 
 
 Beele v. Seiveley, 549 
 
 Beeman v. Lawton, 199 
 
 Beere v. Head, 521, 522 n., 534 
 
 Beers v. Botsford, 714 
 
INDEX TO CASES CITED OR INTRODUCED. 
 
 Ixix 
 
 Beers v. Hawley, 
 
 
 
 727 
 
 Beeson v. Beeson, 
 
 688, 
 
 696 
 
 785 
 
 Beeston v. Stutely, 
 
 
 
 310 
 
 Beete v. Bidgood, 
 
 
 
 642 
 
 Beevor i\ Simpson, 
 
 
 
 342 
 
 Begbie ■«. Cook, 
 
 
 
 664 
 
 Beidelman v. Foulke, 
 
 58, 
 
 124 
 
 492 
 
 Beioley v. Carter, 
 
 
 
 386 
 
 Belch V. Harvey, 
 
 
 
 816 
 
 Belchie'r v. Butler, 
 
 
 
 738 
 
 t'. Renforth, 
 
 
 
 738 
 
 V. Reynolds, 
 
 221 
 
 287 
 
 289 
 
 Beldeii v. Seymour, 
 
 
 
 645 
 
 Belford v. Crane, 
 
 
 
 706 
 
 Belknap v. Sealy, 
 
 
 
 324 
 
 V. Trimble, 
 
 
 
 492 
 
 Bell V. Bell, 
 
 
 
 752 
 
 V. Blaney, 
 
 
 
 761 
 
 V. Cade, 
 
 
 
 224 
 
 I'. Carter, 
 
 ( 
 
 i5 n. 
 
 199 
 
 D. Cundall, 
 
 
 
 741 
 
 V. Ellis, 
 
 
 
 179 
 
 V. Evans, 
 
 
 
 728 
 
 V. Hallenback, 
 
 
 
 706 
 
 V. Howard, 
 
 
 167 
 
 262 
 
 V. Huggins, 
 
 
 
 549 
 
 V. McCawley, 
 
 
 
 714 
 
 V. Pbynn, 
 
 
 699 n. 
 
 V. Scammon, 
 
 
 
 716 
 
 V. Thompson, 
 
 
 
 232 
 
 V. Twilight, 
 
 
 
 556 
 
 V. Webb, 
 
 687 
 
 , 688 
 
 , 696 
 
 V. Woodward, 
 
 
 
 169 
 
 Bellamy v. Liversidge, 
 
 
 
 439 
 
 V. Sabine, 
 
 205 n., 
 
 253, 
 
 276, 
 
 681, 693, 758, 759, 760 
 
 Bellas V. Harmer, 363 
 
 Bellasis, Lady, v. Compton, 702 
 
 Beller v. Block, 50 
 
 Bellew V. Russell, 689 
 Bellinger v. Union Burial Ground 
 
 Society, 25 
 
 Bellowes & Peck, Matter of, 523 
 
 Bellows V. Cheek, • 243 
 
 Bellus V. McCarthy, 753 
 
 Belton V. Briggs, 686 
 
 Beltzhoover v. Blackstock, 786 
 
 Belworth v. Hassell, 298 
 
 Benbow v. Townsend, 702 
 
 Bender v. Bender, 358 
 
 V. Fromberger, 610, 611 
 
 Beneeke v. Chad wick, 132 
 
 Benedict v. Beebee, 126 
 
 V. Lynch, 158, 209, 211, 260, 
 261 
 
 Benett v. Wyndham, 396 
 
 Benhim v. Bishop, 209, 686 
 
 Benham v. Keane, 527, 533, 535, 537, 
 
 728, 729, 746, 756, 761 
 
 Benick v. Bowman, 556 
 
 Benjamin v. Coventry, 785 
 
 V. McConnell, 161 
 
 Bennet's casg, 614 
 
 Bennet v. Carter, 42 
 
 V. Jenkins, 611 
 
 V. Judson, 2 
 
 V. Mahew, 708 
 
 V. Musgrove, 720 
 
 V. Pixley, 258 
 
 V. Womack, 27 
 
 Bennet College v. Cary, 55, 218, 354, 
 
 646 
 
 Bennett, ex parte, 687, 688, 690, 691, 
 
 694, 695 
 V. Bedford Bank, 714 
 
 u. Bernard, 485, 488 
 
 V. Colley, 252 
 
 V. Fowler, 351, 647 
 
 V. Glossop, 445 n. 
 
 V. Harnell, 110 
 
 II. Herring, 589, n. 
 
 V. Ingoldsby, 438 
 
 V. Oliver, 206 
 
 V. Powell, 536 
 
 V. Rees, 353, 427 
 
 V. Smith, 11 
 
 V. Tankerville, Lord, 186 
 
 V. Waller, 556, 577 
 
 V. Wheeler, 100 
 
 Bennett's Estate, in re, 95 n. 
 
 Bensley v. Burdon, 355, 558, 739 n., 
 
 745 
 
 Benson v. <51astonbury, C. C. 230 
 
 V. Lamb, 271, 558 
 
 V. Paull, 222 
 
 Bent V. Cobb, 147, 148 
 
 Bentley v. Craven, 108, 299,*342, 395 
 
 V. Mackay, 700 
 
 V. Robinson, 485 
 
 Benton u. Jones, 174,713 
 
 V. Pratt, 4 
 
 Benyon v. Collins, 658, 660 
 
 Benzien v. Lenoir, 177 
 
 Berdoe v. Dawson, 252 
 
 Bergen v. Bennett, 563, 696 
 
 Berger v. Duff, 61 
 
 Berkeley v. Dauh, 353 
 
 Berkeley Peerage case, 418 
 
 Berlin v. Norwich, 158 
 
 Bernal v. Donegal, 276, 286 
 
 Bernard v. Drought, 416, 434 
 
 Berney o. Harvev, 389 n. 
 
 W.Pitt, ' 276 
 
 Berridge v. Ward (7 Jur. N. S.), 26 
 
Ixx 
 
 INDEX TO CASES CITED OK INTRODUCED. 
 
 Berridge ». "Ward (10 C. B. N. S.), 26 
 
 Berrington v. Evans, 488 
 
 Berrisford v. Milward, 743 
 
 Berry v. Armisted, 6, 243 
 
 V. Hebblethwaite, 69 
 
 V. Johnson, 107 
 
 V. Mut. Ins. Co. 682, 715, 728, 
 
 762 
 
 V. Storey, 240 
 
 V. Vanwinkle, 233 
 
 V. Young, 84, 50, 257, 260, 447, 
 
 450 
 
 Bertsch v. Lehigh Canal & Nav. 
 
 Co. 158 
 
 Berwick, Mayor of, v. Murray, 773 
 
 Berwick-on-Tweed, Mayor of, v. 
 
 Oswald, 168 
 
 Besant v. Richards, 159 
 
 Besland v. Hewett, 680 
 
 Bessonet «. Robins, 97 
 
 Best V. Drake, 229 
 
 V. Stamford, 625 
 
 V. Stow, 211 
 
 Bethune v. Farebrother, 237 
 
 Betisworth, Dr. v. St. Paul's, D. & 
 
 C. of, 220 
 
 Betts V. Badger, 239 
 
 V. Burch, 51, 221 
 
 V. De Vitre, 234 
 
 V. Neilson, 233, 234 
 
 V. Union Bank of Maryland, 715 
 
 Bevan v. Bevan, 103 
 
 V. Habgood, 66, 748 
 
 Bevan t o. Pope, 456 
 
 Beverley y. Lawson, 316,349,386 
 
 Bexwell v. Christie, 9 
 
 Beyland v. Sewell, 671, 676 
 
 Bibby V. Carter, 59 
 
 Bickerton v. Burrell, 237 
 
 Bickford v. Page, 5 7 7, 5 9 9 
 
 Bickham v. Crutwell, 195 
 
 Biddle v. Perkins, 390 n., 405 n. 
 
 Biddulph V. St. John, 728, 781 
 
 Bidlake v. Arundel, 681 n. 
 
 Biederman v. Seymour, 459 
 
 Bierne v. Erskine, 324 
 
 Bigelow V. Bigelow, 484 
 
 V. Jones, 611 
 
 V. Kinney, 209, 686 
 
 V. Topliff, 728, 744 
 
 Bigg V. Strong, 147 
 
 Biggs V. Gordon, 46 
 
 V. Rowe, 1 118 
 
 Bitrht's Trustees, in re, 775 
 
 Bignell v. Buzzard, 357 
 
 Bignold, ex parte, 68 
 
 Billing V. Webb, 202 
 
 Billinghurst v. Walker, 
 
 195 
 
 Billington i;. Welsh, 
 
 762 
 
 Bingham v. Bingham, 
 
 245, 355 
 
 V. Clanmorris, 
 
 664 
 
 V. Jordan, 
 
 775 
 
 V. Weidewax, 
 
 611 
 
 Binks V. Rokeby, 
 
 660 
 
 V. Rokeby, Lord, 321, 342, 4^05 
 
 n., 630, 644, 658 
 
 BinsteAd v. Coleman, 151, 158 
 
 Birce v. Bletchley, , 141 
 
 Birch V. Blagrave, 705 
 
 V. Dawson, 33 
 
 V- Joy, 1 75, 628 
 
 V. Podmore, 635, 638 
 
 W.Wright, 181 
 
 Birch's, General, case, 115 
 
 Bird V. Bass, 541 
 
 V. Benton, 743 
 
 V. Boulter, 147 
 
 u. Fox, 17,662,772 
 
 V. Richardson, 134 
 
 V. Smith, 610 
 
 Birds V. Askey, 680, 708 
 
 Birdsall v. Russell, 755 
 
 Birkenhead, &c. Ry. Co. in re, 90 
 
 Birmingham «. Burke, 488, 612 
 
 Birmingham, &c. Ry. Co. v. Reg. 79 
 
 Bisco V. Banbury, Earl of, 775 
 
 Biscoe V. Brett, 352 
 
 V. Perkins, 388, 405 n., 749 
 
 V. Wilks, 388, 649, 749 
 
 Bissell u. Erwin, 611 
 
 V. New York, &c. R. R. Co. 26 
 
 V. Nooney, 727, 728 
 
 Bitner v. Brough, 358, 359, 361, 362 
 
 Blaehford v. Kirkpatrick, 154, 343 
 
 Black «. Black, 127, 699 n. 
 
 V. Thornton, 755 
 
 Blaokbeard v. Lindigren, 102 
 
 Blackburn ?.•. Gregson, 675 
 
 V. Scholes, 49 
 
 V. Smith, 21, 179, 236, 365, 
 
 • 408, 427 
 
 V. Stace, 229 
 
 Blackburne v. Gregson, 681 
 
 Blackely v. Holton, 721 
 
 Blacket v. Langlands, 787 
 
 Blackford a. Christian, 275 
 
 Blackham ;;. Pugh, 357 
 
 Blacklow V. Laws; 21, 110, 342, 405 n. 
 
 Blackmore v. Barker, 109 
 
 Blacknall v. Parish, 145 
 
 Black well v. Lawrence Co. 358 
 
 Blades v. Blades, 728 
 
 Blagden v. Bradbear, 130, 134, 136, 
 
 139, 146, 148, 149, 149 n. 
 
INBEX TO CASES CITED OK INTRODUCED. 
 
 Ixxi 
 
 ir V. Bank of Tennessee, 
 
 159 
 
 V. Bass, 
 
 701, 702 
 
 V. Bromley, 
 
 254 
 
 V. Hardin, 
 
 608 
 
 V. Marsh, 
 
 683 
 
 V. Owen, 
 
 753 
 
 V. Rankin, 
 
 601 
 
 Blaisdell v. Stevens, 708, 755, 762, 775 
 
 Blake, <a; parte, 206 
 
 in re, 202 
 
 V. Burnham, 611 
 
 V. Everett, ' 492 
 
 V. Hungerford, Sir E. 624, 738 
 
 V. Hyland, 713 
 
 v. Mowatt, 211 
 
 V. Phinn, ' 382 
 
 V. Tucker, 775 
 
 Blakely U.Brady, 719 
 
 Blakemore v. Byrnside, 174 
 
 Blakeney v. Bagott, 276, 752 
 
 V. Ferguson, 151 
 
 Blakeslee v. Blakeslee, 151 
 
 Blakesley v. Whieldon, 199 
 
 Blakeston v. Martyn, 540 
 
 Blakey v. Porter, 238 
 
 Blanchard v. Bridges, 25 
 
 V. Ingersoll, , 718 
 
 V. Keaton, 174 
 
 V. Moore, 151 
 
 V. Tyler, 753 
 
 Bland v. Crawley, 76 
 
 Blankensliip v. Douglas, 762 
 
 Blankley v. Winstanley, 1 70 
 
 Blann v. Smith, 259, 264 
 
 Blasdell v. Souther, 158 
 
 Blatchford v. Plymouth, Mayor of, 606 
 
 Blatchley v. Osborn, 755, 780 
 
 Blaxland v. Blaxland, 95 
 
 Bleakley v. Smith, 134, 142 
 
 Bledsoe u. Games, 671 
 
 Blennerhasset v. Day, 63, 243, 690 
 
 V. M'Namara, 633 
 
 V. Pierson, 167 
 
 Blethen v. Towle, 33 
 
 Blew V. McClelland, 291 
 
 Blewitt, in re, 467 
 
 Bligh V. Brent, 699 n. 
 
 Blight V. Bank, &c. 681 
 
 V. Banks, 675 
 
 Blin V. Pierce, . 381 
 
 Bliss V. Collins, 383 
 
 V. Whitney, 33 
 
 Blodgett V. Hobart, 160, 171 
 
 Blood V. Blood, 727, 728, 761 
 
 V. Hardy, 145, 158, 165 
 
 u. Hayman,. 687,688,694 
 
 Bloomfleld v. Eyre, 686 n. 
 
 Blore V. Sutton, 135, 143, 146, 233 
 
 Blosse V. Clanmorris, Lord, 108, 389, 
 
 389 n., 405 n., 649 
 
 Blount V. Blount, 629, 631, 806, 808 
 
 V. Great Southern & West>- 
 
 ern By. Co. 92, 629 
 
 V. Pearman, 570 
 
 V. Robeson, 484 
 
 Bloye's Trust, in re, 687, 689, 691 
 
 Blumenthal v. Brainerd, 757 
 
 Blundell v. Brettargh, 288 
 
 V. Stanley, 322 n. 
 
 Blunden v. Desart, 434 
 
 Blunt V. Aiken, 58 
 
 V. Bates, 669 
 
 Blythe v. Elmherst, 352 
 
 Boar V. McCormick, 324 
 
 Boardman v. Keeler, 358, 361 
 
 V. Mostyn, 154, 156 
 
 V. Spooner, 56 
 
 Boas V. Updegrove, 549 
 
 Boates, in re, 543 
 
 Boden, in re, 398 
 
 Bodine v. Edwards, 701, 703, 706 
 
 Bodington v. Great Western By. Co. 
 
 212 
 Bodkin v. O'Kelly, • 357 
 
 Bodmin, Lady, v. Vendebendy, 789 
 Bod well V. Webster, 1 74 
 
 Boehm v. Wood, 241, 268, 352 
 
 Bogart V. Burkalter, 326 
 
 V. O'Regan, 53 
 
 Boggs u. Varner, - 730,775 
 
 Bohannon v. Pace, 149 
 
 Bohn !). Headley, 719 
 
 Boinest v. Leignez, 42 
 
 Bold y. Hutchinson, 172 
 
 Bolding V. Lane, 489 
 
 Boling 0. Ewing, 727 
 
 Bolingbroke's, Lord, case, 310 
 
 Bolivar Manuf Co. v. Neponset 
 
 Manuf. Co. 492 
 
 Bolles V. Beach, 6 1 1 
 
 Bollinger v. Eckhert, 158 
 
 Bolton, ex parte, .378 
 
 V. Liverpool, Corporation of, 
 
 785 
 
 V. Stannard, 659 n., 662 n. 
 
 Bolton, Lord, v. Tomlin, 122 
 
 Bond V. Bell, 527 
 
 V. Bond, 252, 253 
 
 V. England, 195 
 
 V. Jackson, 158, 324 
 
 V. Kent, 675 
 
 u.Quattlebaum, 611 
 
 V. Rosling, 496 
 
 V. Warden, 49 
 
Ixxii 
 
 INDEX TO CASES CITED OR INTEODUCED. 
 
 Bone V. Cook, 
 
 63 
 
 Bowen v. Evans, 108, 
 
 110, 111, 112, 
 
 V. Pollard, 
 
 697, 703 
 
 
 738, 794 
 
 Bonner v. Johnston, 
 
 230 
 
 V. Johnson, 
 
 462 
 
 V. Ware, 
 
 775 
 
 V. Kirwan, 
 
 275, 286 
 
 Bounett v. Sadler, 
 
 219 
 
 V. Morris, 
 
 57, 129 
 
 Bonney v. Eidgard, 
 
 668, 669 
 
 Bowens v. Johnson, 
 
 2 
 
 Bonsfield v. Hodges, 
 
 96 
 
 Bower v. Cooper, 
 
 16, 197, 273 
 
 Boody V. McKenny, 
 
 209, 686 
 
 Bowerbank v. Morris, 
 
 563 
 
 Booker v. Seddon, 
 
 700 
 
 Bowers v. Cator, 
 
 151 
 
 Boon V. Barnes, 
 
 681 
 
 V. Jewell, 
 
 159 
 
 «. Chiles, 
 
 253 
 
 V. Johnson, 
 
 776 
 
 V, Murphy, 
 
 675, 676 
 
 • V. Keesecker, 
 
 457 
 
 Boone v. Chiles, 484, 737, 738, 
 
 753, 762, 
 
 Bowes V. Heaps, 
 
 286 
 
 
 787, 789 
 
 V. Law, 
 
 596 
 
 V. Eyre, 
 
 258 
 
 Bowie V. Berry, 
 
 457 
 
 f. Mitchell, 
 
 569 
 
 Bowlby V. Bell, 
 
 241 
 
 Boos V. Ewing 
 
 675 
 
 Bowles V. Atkinson, 
 
 334 
 
 Booth V. Daly, 
 
 148 
 
 V. Craig, 
 
 326 
 
 V. Starr, 
 
 577, 600 
 
 V. Rogers, 41 
 
 175, 26 7, 681 
 
 Boothbay v. Hathaway, 577 
 
 600, 610 
 
 u. Stewart, 
 
 5, 6, 445 n. 
 
 Boothby v. Boothby, 
 
 285, 286 
 
 0. Waller, 
 
 312, 383 
 
 V. Walker, 
 
 230 
 
 V. Woodson, 
 
 130 
 
 Borell V. Dann, 
 
 60 
 
 Bowman v. Bates, 
 
 274 
 
 Borough V. Williamson, 
 
 522 n. 
 
 V. Harding, 
 
 523, 540 
 
 Borrowscale v. Tuttle, 
 
 758 
 
 V. Wathen, 
 
 484, 492 
 
 Borst V. Corey, 
 
 679 
 
 Bown V. Stenson, 
 
 343, 353 
 
 Borum v. Touts, 
 
 786 
 
 Bowyer v. Bright, 
 
 315 
 
 Bos V. Helsham, 
 
 289, 549 
 
 Box V. Stanford, 
 
 137, 151 
 
 Bostock V. Floyer, 
 
 71 
 
 Boyce v. Britchett, 
 
 629 
 
 y. North Stafford. Ky 
 
 . Co. 76 
 
 V. Dudley, 
 
 482 
 
 Boston V. North Staff. Ry. Co 
 
 76 n. 
 
 1). Granby, 
 
 5 
 
 V. Richardson, 
 
 26 
 
 V. Green, 127 
 
 131, 134, 138 
 
 Boston & Maine Railroad v. 
 
 Bab- 
 
 V. Rossborough, 
 
 727 
 
 cock, 
 
 213 
 
 Boyd V. Bartlett, 
 
 600 
 
 Boston & Maine Railroad v. 
 
 Bart- 
 
 V. Belton, 
 
 743, 744 
 
 lett, 168, 
 
 266, 268 
 
 V. Dunlap, 
 
 286 
 
 Bostwick V. Atkins, 
 
 688 
 
 V. Hawkins, 
 
 687 
 
 V. Leach, 
 
 126 
 
 V. Higginson, 
 
 485 
 
 V. Lewis, 
 
 331 
 
 V. McConnell, 
 
 159 
 
 Bosville V. Middleton, Lord, 
 
 276 
 
 V. M'Lean, 
 
 701, 702, 708 
 
 Boswell V. Mendham, 394, 397, 405 n. 
 
 V. Shorrock, 
 
 33 
 
 Botsford V. Burr, 701 
 
 , 702, 703 
 
 «. Vanderkemp, 
 
 757 
 
 V. Morehouse, 
 
 167 
 
 Boydell v. Drummond, 
 
 138 
 
 Bott V. Smith, 7 
 
 06 n., 714 
 
 V. Manby, 
 
 94 
 
 Botts V. Cozine, 
 
 145 
 
 Boyer v. Blackwell, 
 
 116, 119, 320, 
 
 Boucher v. Van Buskirk, 
 
 209 
 
 
 320 n. 
 
 Boughton V. Jewell, 
 
 450 
 
 V. Porter, 
 
 363 
 
 Boulton, ex parte, 
 
 380 
 
 Boyes i'. Liddell, 
 
 352 
 
 Bourdillon v. Roche, 
 
 668 
 
 Boyle, ex parte. 
 
 540 
 
 Bourn V. Bourn, 
 
 115 
 
 V. Rowand, 
 
 627 
 
 Bousfield V. Hodges, 
 
 216 
 
 V. Tamlyn, 
 
 59 
 
 Bouverie, ex parte, 
 
 90 
 
 Boyman v. Gutch, 
 
 400 n. 
 
 V. Attorney General, 404 n. 
 
 Boynton v. Champlin, 
 
 675, 676 
 
 Bovey V. Smith, 
 
 753 
 
 V. Hazleboom, 
 
 4, 206 
 
 Bovie's, Sir Ralph, case. 
 
 718 
 
 V. Hubbard, 
 
 276, 286 
 
 Bow V. Allenstown, 
 
 492 
 
 V. Rawson, 
 
 758 
 
 Bowen v. Bell, 
 
 126, 645 
 
 V. Rees, 
 
 753, 762 
 
INDEX TO CASES CITED OE INTKODUCED. 
 
 Ixxiii 
 
 Boys V. Ancell, 40 
 
 V. Ayerst, 134 
 
 V. Williams, 169 
 
 Boyse v. Eosboro*, 440 
 
 Boze V. Davis, 126 
 
 Bozza V. Rome, 137 
 
 Brace v. Marlborough, Duchess of, 520, 
 
 738, 789 
 
 SI. Wehnert, 214 
 
 V. Yale, 493 
 
 Bracebridge v. Cook, 619 
 
 V. Heald, 122 n. 
 
 Bracken v. Miller, 753, 757 
 
 Brackenridge v. Holland, 687, 688, 
 
 693, 695 
 
 Brackett v. Evans, 1 26 
 
 V. Eidlou, 753 
 
 V. Waite, 714, 728, 779 
 
 Bradbury v. White, 159 
 
 V. Wright, 27 
 
 Braddock v. Derisley, 703 
 
 Bradford v. Allen, 646 
 
 V. Belfield, 665 
 
 V. Gray, 240 
 
 V. Harper, 681 
 
 U.Marvin, 676 
 
 V. Roalston, 139 
 
 Bradish v. Gibbs, 715 
 
 Bradley v. Basley, 233 
 
 v. Berington, 402 
 
 V. Bosley, 332 
 
 V. Holds worth, 127 
 
 V. Munton, 218, 562 
 
 Bradshaw, ex parte, 88 
 
 V. Bennett, 15, 16, 239, 640 
 
 V. Bradshaw, 169, 230, 231 
 
 V. Fane, 389 n., 405 n. 
 
 V. Midgeley, 643 
 
 Bradstreet v. Clark, 482 
 
 Bragg V. Boston & Worcester Kail- . 
 
 road Corporation, 743 
 
 V. Massie, 174 
 
 Brainard v. Boston & New York 
 
 Central R. R. Co. 26 
 
 V. Cowdry, ■ 169 
 
 Braithwaite v. Britain, 661 
 
 Braithwaite's Trust, in re, 88 
 
 Braman v. Hess, 642 
 
 V. Oliver, 688 
 
 Bramble v. Billups, 464 n. 
 
 Bramley v. Alt, 9 
 
 V. Teal, 230 
 
 Brampton v. Barker, 789 
 
 Bramwell v. Lucas, 786 
 
 Branch v. Browne, 293 
 
 V. Doane, 58, 493 
 
 Brand j;. Ackerman, 785 
 
 Brandei v. Neustadtl, 
 
 149 
 
 Brandling v. Plummer, 
 
 14, 23, 332, 
 
 
 528 n. 
 
 Brandlyn v. Ord, 
 
 753 
 
 Brandon v. Brandon, 
 
 378, 381 
 
 Brandt v. Foster, 
 
 611 
 
 V. Klein, 
 
 785 
 
 Brannan v. Oliver, 
 
 688 
 
 Brantley v. West, 
 
 174 
 
 Brashier v. Gratz, 240, 260, 268, 273 
 Brasier v. Hudson, 665 
 
 BrassingtoQ v. Llewellyn, 476 
 
 Bratt u. Bratt, 645,671 
 
 V. Ellis, 44, 237, 358, 362 
 
 Bratton's appeal, 727 
 
 Braumer's Estate, in re, 90 
 
 Brawner v. Staup, 701 
 
 Bray v. Chandler, 46 
 
 Braybroke, Lord, v. Inskip, 390 n., 392, 
 404, 405 n., 560, 660, 742 
 Braybrooke, Lord, u. Attorney 
 
 General, 556 
 
 Braye, Lady, ex parte, 83 
 
 Brayton !'. Chase, 785 
 
 Brazee u. Lancaster Bank, 196 
 
 Brazier v. Fortune, 785 
 
 Breadalbane, Marquis of, v, Chan- 
 
 dos. Marquis of, 1 73 
 
 Breakespear v. Innes, 726 
 
 Brealey v. Collins, 3, 274, 299 
 
 Breck v. Young, 57 7 
 
 Breckenridge v. Hoke, 627 
 
 V. Todd, 682 
 
 Bree v. Holbech, 549, 550, 553 
 
 Breedlove v. Stump, 749 
 
 Breedon v: Breedon, 659 
 
 Breithaupt v. Thurmond, 400, 573 
 
 Brenen v. Preston, 386 
 
 Brennan v. Bolton, 152 
 
 Brent v. Green, 42, 147 
 
 V. Hadden, 58 
 
 Brereton v. Barry, 253 
 
 V. Tuokey, 750 
 
 Bret V. Sawbridge, 616, 816 
 
 Brett V. Beales, 414 
 
 V. Marsh, 554 
 
 Brewer v. Craig, 179 
 
 V. Hill, 591 n. 
 
 V. Marshall, 581, 582, 596 
 
 V. Thomas, 486 
 
 V. Vanarsdale, 456 
 
 Brewster v. Baker, 199 
 
 V. Countryman, 158 
 
 V. Edgerly, 40 
 
 V. Kidgell, 591, 591 n., 593, 
 
 696 
 
 V. McCall, 462 
 
Ixxiv 
 
 INDEX TO CASES CITED OR INTRODUCED. 
 
 Brewster w. Power, 701,706 
 Breynton v. London & North West- 
 ern Ky. Co. 25 
 Briant v. Busk, 647 
 Brice v. Stokes, 63 
 Brioker u. Hughes, 126 
 V. Lightner, 254 
 Bridenbecker v. Lowell, 708 
 Bridge v. Beadon, 8 
 u. Bridge, 719 
 Bridgen v. Carhartt, 738 
 Bridger v. Huett, 410 
 V. Penfold, 116 
 / V. Rice, ^ 62, 216 
 V. Wiekens, 94 
 Bridges v. Fisher, 1 2 
 V. Garrett, 49 
 U.Longman, 67,370,396, 
 405 n., 425 
 V. Purcell, 123, 124 
 V. Robinson, 638 
 Brig Sarah Ann, 743 
 Brig's case, 218, 355, 358, 549 
 Briggs V. Chamberlain, 473 
 V. Hill, 683 
 V. Planters' Bank, 683 
 V. Seymour, 559 
 V. Vanderbilt, 236 
 Brigham v. Shattuck, 462 
 Bright V. Boyd, 7, 743, 747 
 V. Bright, 151, 721 
 V. Legerton, 485, 696 
 V. Walker, 493, 494 
 Bright's Trust, in re, 378 
 Brighton & South Coast Ry. in re, 91 
 Briraner v. Sohier, 189 
 Brinckerhoff u. Brown, 118 
 V. Lansing, 743, 744, 781 
 V. Marvin, 728 
 V. Phelps, 361 
 V. Vanciven, 671 
 Brindley t). Woodhouse, 437 
 Bringloe v. Goodson, 419, 437 
 Brinkley v. Hann, 212 
 Brinley v. Mann, 730 
 Brisban u. Boyd, 133 
 Bristow V. Skirrow, 357 
 V. Wood, 389 n., 405 n., 597, 
 799 
 British Empire Ship Co. v. Somes, 
 
 288 n. 
 
 British Museum case, 597 n., 799 
 
 Britton >;. Johnson, 688 
 
 V. Lewis, 689 
 
 Brock V. Barnes, 690 
 
 e. Cook, 151 
 
 V. Sturdivant, 158 
 
 Brocken v. Miller, 728 
 
 Brockenbrough v. Blythe, 347, 627, 
 
 628, 629 
 Brocklebank v. Whitehaven By. Co. 78 
 
 Brockwell's case, 250 
 
 Brodie v. St. Paul, 135 
 
 Brokenbrough v. Ward, 239 
 
 Bromitt v. Moor, 225 
 
 Bromley v. Smith, 276 
 
 Brook V. Biggs, 181 
 
 V. Rawl, 357 
 
 V. Smith, 203 
 
 Brook, Earl, v. Bulkeley, 749 
 
 Brooke v. , 350 
 
 V. Berry, 250 
 
 V. Garrod, 188 n., 266 
 
 Brooke, Lord, v. Rounthwaite, 28, 31, 
 
 32, 331 
 
 Brookes v, Whitworth, Lord, 231 
 
 Brookfield v. Bradley, 115 
 
 V. Goodrich, 727 
 
 Brooking, in re, 90 
 
 Brookman v. Metcalf, 743 
 
 V. Rothschild, 689 
 
 Brooks V. Byam, 646 
 
 V. Day, 547 
 
 V. Fowle, 701 
 
 V. Maltbie, 158 
 
 V. Moody, 611 
 
 V. Snaith, 115 
 
 V. StoUey, 243 
 
 V. Wheelock, 151, 160 
 
 Broom v. Broom, 699 n. 
 
 Broome v. Beers, 743, 744 
 
 V. Monck, 183, 192, 193, 194 
 
 Brothers v. Bence, 780 
 
 V. Porter, 698, 701, 743 
 
 Brotherton v. Hatt, 756 
 
 V. Livingston, 727 
 
 Broughton v. Conway, 606 
 
 Brown, in re, 415, 463 
 
 V. Anderson, 762 
 
 V. Balridge, 727 
 
 V. Bellows, 140, 287 
 
 u. Boutee, 617 
 
 V. Bowen, - 124 
 
 V. Brown, 605, 700 
 
 V. Bucks, 714 
 
 V. Burlingham, 460 
 
 V. Carter, 719, 720 
 
 V. Castles, 2, 3, 243 
 
 V. Desmond, 201 
 
 V. Dewey, 199 
 
 V. Dickerson, 611 
 
 V. Dwelley, 703 
 
 V. East, ■ 672 
 
 V. Eastman, 775 
 
INDEX TO CASES CITED OR INTRODUCED. 
 
 Ixxv 
 
 Brown V. Fenton, 
 
 3, 52 
 
 V. Frost, 
 
 120, 229 n., 728 
 
 V. Gafihey, 
 
 i 762 
 
 .V. Gammon, 
 
 573 
 
 V. Gibbs, 
 
 624 
 
 , V. Gilliland, 
 
 210, 386 
 
 V. Gilman, 
 
 675 
 
 V. Gilmer, 
 
 116 
 
 V. Haff, 
 
 241, 337 
 
 I). Harris, 
 
 236 
 
 V. Haven, 
 
 159, 169 
 
 V. Huff, 
 
 224, 386 
 
 V. Jones, 
 
 125, 715, 718 
 
 V. Kelty, 
 
 230, 231 
 
 V. Kennedy, 
 
 690 
 
 V. Lake, 
 
 105 
 
 V. Lamphear, 
 
 160 
 
 V. M'Cormick, 
 
 556 
 
 V. McDonald, 
 
 706 
 
 I'. McGran, 
 
 563 
 
 V. Maine Bank, 
 
 728 
 
 V. Maltbie, 
 
 645 
 
 V. Newall, 
 
 255 
 
 V. Oakshott, 
 
 114, 785 
 
 V. Parrisb, 
 
 324 
 
 V. Paull, 
 
 37 
 
 V. Payson, 
 
 786, 786 
 
 V. Pegg, 
 
 571 
 
 V. Pitney, 
 
 702 
 
 V. Raindle, 
 
 205 
 
 V. Robins, 
 
 59 
 
 V. Simpson, 
 
 671 
 
 V. Staples, 
 
 577, 578 
 
 V. Stepney, 
 
 548 
 
 V. Stead, 
 
 748 
 
 V. Storey, 
 
 181 
 
 V. Taylor, 
 
 612 
 
 V. Vanlier, 
 
 671, 681, 682 
 
 u. Wallace, 103, 106, 108, 658, 
 
 659 
 
 V. Wheeler, 743 
 
 B. Winnisimmet Co. 76 
 
 V. Witter, 366, 390 
 
 V. Wood, ■ 481 
 
 Brown's Trusts, re, 8 
 
 Browne, in re, 687 
 
 V. Amyot, 182 
 
 V. CaTcndish, 519 
 
 u. Cork, Bishop of, 486 
 
 !/. Gross, 253, 669 
 
 V. Fenton, - 303, 643 
 
 V. Hammond, 463 
 
 V. Odea, 747 
 
 r. Savage, 378, 379, 566 
 
 V. Sligo, 161 
 
 V. Southhouse, 639 
 
 Browning v. Wright,' 172, 599, 605 
 
 Bruce v. Bainbridge, 648 
 
 V. Gale, 646 
 
 V. Rogers, 275 
 
 V. Roney, 701 
 
 Bruch V. Lantz, 658, 687, 688 
 
 Brumfield v. Palmer, 683 
 
 Brumfit V. Morton, 16, 300, 337, 382, 
 
 383 
 
 Brundred v. AValker, 556 
 
 Brush V. Brush, 464 
 
 V. Kinsley, 683 
 
 V. Ware, 755, 775 
 
 Bryan v. Duncan, 688 
 
 V. Hinman, 481 
 
 u. -Lewis, 217 
 
 !/. Reed, 386, 397, 398 
 
 Bryant v. Busk, 294, 432, 438 
 
 V. Crosby, 125, 174 
 
 V. Hambruck, 358, 361 
 
 V. Hendricks, 701 
 
 V. Mansfield, 713 
 
 V. Russell, 646 
 
 V. White, 463 
 
 Brymer v. Thames, &c. Ry. Co. 158, 
 
 239 
 
 Bryson v. Warwick, &c. Canal Co. 75 
 
 Bubb's case, 177 
 
 Bubier «. Bubier, 151 
 
 Buchanan v. Lorraan, 347, 627 
 
 V. Poppleton, 22, 323, 401 
 
 Buck V. Dowley, 151 
 
 V. Lodge, 230 
 
 V. M'Caughtry, 299, 315, 316 
 
 V. Pickwell, 125, 126, 134, 139 
 
 V. Pike, 701, 702 
 
 V. Sherman, 244 
 
 V. Waddle, 236 
 
 Buckhouse v. Crossby, 129, 130, 167 
 
 Buckhurst's, Lord, case, 433 n., 574 
 
 Buckingham v. Smith, 762 
 
 Buckland v. Papillon, 27 
 
 V. Pocknell, 677, 678 
 
 Buckle V. Mitchell, 720 
 
 Buckles V. Lafferty, 688, 694 
 
 Buckley v. Davison, 358 
 
 V. Howell, 71 
 
 V. Lanauze, 775 
 
 Buckley's appeal, 158 
 
 Trust, in re, 660 
 
 Buckmaster v. Grundy, 236, 241, 361, 
 
 611 
 V. Harrop, 147, 148, 154, 
 193 
 V. Thompson, 213 
 
 Buckner v. Calcote, 253 
 
 Bucks, &c. Ry. Co. in re, 82, 89 
 
 Budd V. Basti, 671 
 
Ixxvi 
 
 INDEX TO CASES CITED OR INTRODUCED. 
 
 Buel V. Miller, 
 Buffura V. Green, 
 Bugbee v. Sargent, 
 Bugden v. Bignold, 7, 
 
 V. Tylee, 
 Bulkeley «. Hope, 
 Bulkley v. Wilford, 
 Bull u. Allen, 
 
 V. Griswold, 
 V. Hutcliins, 
 V. Manners, 
 V. Price, 
 V. Willard, 
 Bullard V. Briggs, 
 Bullen V. Eunnells, 
 Bulier V. Buller, 
 
 V. Plunkett, 
 V. Waterhouse, 
 Bullett V. Taylor, 
 BuUin V. Fletcher, 
 Bullion V. Campbell, 
 Bullock V. Adams, 
 
 V. Beemiss, 
 
 V. Bullock, 
 
 V. Downes, 
 
 V. Sadlier, 
 
 V. Thorne, 
 Bulmer v. Alison. 
 Bulteel V. Abinger, Lord, 
 Bumpus V. Platner, 549, 
 Bunbury v. Bunbury, 
 
 V. Fuller, 
 Bunce v. Vandergrift, 
 
 u. Wolcott, 
 Bunch V. Hurst, 
 Bunker v. Bunker, 
 
 V. Green, 
 Bunn V. Winthrop, 
 Bunnel v. Taintor, 
 Bunney v. Poyntz, 
 Bunny v. Hopkinson, 
 Buntin v. French, 
 Bunting v. Stonnard, 
 Burbank v. Gould, 
 Burchard v. Hubbard, 
 Burden's Will, in re, 
 Burdiok v. Garrick, 
 Burdori v. Browning, 
 
 V. Kennedy, 
 Burg's, Lady, case. 
 Burger v. Potter, 
 Burgess v. Wheate, 
 Burgett V. Burgett, 
 Burgh V. Francis, 
 
 ... Wolf, 
 Burk V. Chrisman, 
 
 165 
 
 Burk ('. Clements, 
 
 611 
 
 G45 
 
 Burke v. Crosbie, 
 
 110 
 
 658 
 
 V. Dawson, 
 
 720 
 
 44, 746, 747, 
 
 V. Eyre, 
 
 240 
 
 780 
 
 V. Gray, 
 
 676 
 
 445 n. 
 
 u. Greene, 
 
 357 
 
 323, 735 n. 
 
 V. Haley, 
 
 42, 147 
 
 693 
 
 V. Smith, 
 
 262 
 
 231 
 
 Burkinshaw v. Birmingham, 
 
 &c. 
 
 125 
 
 By. Co. 
 
 81 
 
 370 
 
 Burlace, Sir John, v. Cook, 
 
 741, 791 
 
 208 n. 
 
 Burleson v. Burleson, 
 
 744 
 
 47 
 
 Burlinganie v. Burlingame, 
 
 358 
 
 326, 549 
 
 V. Bobbins, 
 
 680 
 
 645 
 
 Burlington, &c. v. Boesler, 
 
 257 
 
 167 
 
 Burminster, in re, 
 
 728, 742 
 
 195 
 
 Burn V. Winthrop, 
 
 702 
 
 378 
 
 Burnaby v. Griffin, 405 n., 649 
 
 721 
 
 Burne v. Robinson, 484, 
 
 488, 489 
 
 714 
 
 Burnell v. Brown, 7, 304, 311, 
 
 343, 348, 
 
 184 
 
 
 643, 653 
 
 125 
 
 Burnet v. Denniston, 
 
 196 
 
 233, 268 
 
 Burnett v. Lynch, 
 
 38 
 
 287 
 
 V. Pratt, 
 
 697, 698 
 
 398 
 
 V. Wheeler, 
 
 337 
 
 252, 484, 488 
 
 Burney v. Macdonald, 
 
 685 
 
 713, 789 
 
 Burnham v. Kempton, 
 
 492 
 
 722 
 
 Burnley v. Eastern Counties By. Co. 225 
 
 102 11. 
 
 Burns v. Southerland, 
 
 154 
 
 61 
 
 V. Taylor, 
 
 671 
 
 551, 720, 753 
 
 Burnside v. Merrick, 
 
 698 
 
 786, 786 
 
 V. Wightman, 
 
 33 
 
 322,476 
 
 Burr V. Todd, 
 
 361 
 
 206 
 
 Burrell's case. 
 
 713, 714 
 
 482 
 
 Burrell v. EgremoDt, Lord, 
 
 486,487 
 
 273, 275 
 
 V. Root, 
 
 129, 201 
 
 58 
 
 Burrough's case. 
 
 707 
 
 566 
 
 Burrough v. Martin, 
 
 7 
 
 721 
 
 V. Skinner, 
 
 50 
 
 127, 699 n. 
 
 Burroughes v. Browne, 
 
 54 
 
 676 
 
 Burroughs v. Elton, 
 
 699 
 
 611 
 
 V. M'Creight, 475, 
 
 481, 482, 
 
 671, 675 
 
 
 485 
 
 ■ 668 
 
 V. Oakley, 54, 229, 
 
 230, 344, 
 
 645 
 
 
 345, 353 
 
 556 
 
 Burrowes v. Gore, 
 
 478, 487 
 
 498 
 
 V. Locke, 4, 5, 8, 27S 
 
 , 653, 744 
 
 640 
 
 Burrows v. Walls, 
 
 252 
 
 150 
 
 Burrus v. Roulhac, 671, 676 
 
 762, 775 
 
 518 
 
 Burt, in re. 
 
 203, 399 
 
 720 
 
 V. Cassety, 
 
 762 
 
 676 
 
 V. Haslett, 
 
 33 
 
 295, 296 n. 
 
 V. Trueraan, 
 
 661 
 
 714 
 
 Burtch V. Elliot, 
 
 713 
 
 744 
 
 Burton v. Dickinson, 
 
 484 
 
 741 
 
 V. Fort, 
 
 646 
 
 683 
 
 V. Neville, 
 
 443 
 
INDEX TO CASES CITED OR INTEODUCED. 
 
 Ixxvii 
 
 Burton V. Keeds, 
 
 
 
 611 
 
 y.,Rushton, 
 
 
 
 182 
 
 V. Scherpf, 
 
 
 
 124 
 
 V. Smith, 
 
 
 
 523 
 
 V. Todd, 
 
 633, 
 
 648 
 
 816 
 
 Burtt V. Wilson, 
 
 
 
 671 
 
 Bury V. Bury, 
 
 766, 
 
 775 
 
 816 
 
 Bush V. Bush, 
 
 
 
 763 
 
 V. Cole, 
 
 44 
 
 ,53 
 
 361 
 
 V. Golden, 
 
 
 
 728 
 
 !7. Marshall, 555 
 
 556, 
 
 671 
 
 745 
 
 Bushbv V. Ellis, 
 
 
 
 4 
 
 Bushell V. Bushell, 
 
 •728, 
 
 729 
 
 761 
 
 Butcher v. Butcher, 
 
 
 
 169 
 
 V. Stapely, 
 
 
 151 
 
 766 
 
 Butler's appeal, 
 
 
 
 5 
 
 Butler V. Archer, 
 
 
 
 691 
 
 V. Buckingham, 
 
 
 
 206 
 
 V. Butler, 
 
 
 
 196 
 
 V. Gale, 
 
 
 
 610 
 
 V. Haskell, 273, 275, 276, 687, 
 
 696 
 
 V. Hicks, 210 
 
 V. Howe, 482 
 
 V. Ins. Co. 706 
 
 V. King, 460 
 
 V. O'Hear, 315, 386, 647 
 
 V. Portarlington, Lord, 65 
 
 V. Rutledge, 701 
 
 V. Stevens, 728, 755, 762 
 
 V. Swinnerton, 601 
 
 V. Tomlinson, 758 
 
 Buttenshaw v. Martin, 467 n. 
 
 Butterfield v. Cooper, 324 
 
 V. Heath, 390, 405 n., 715, 
 
 720 
 
 V. Marshall, 604 
 
 Buttorf M. Conner, 679 
 
 Buttrick v. Holden, 728, 755 
 
 Butts V. Chinn, 758 
 
 Buxton, ex parte, 63, 688 n. 
 
 V. Buxton, 62 
 
 V. Cooper, 4, 214, 273 
 
 V. Uxbridge, 464 n. 
 
 Byam v. Byam, 666 
 
 Byars v. Doores, 44 
 
 Byasse v. Reese, 126 
 
 Byers v. Aiken, 241 
 
 V. Mullen, 645 
 
 V. Surget, 276 
 
 V. Wackman, 701 
 
 Byrd v. Curlin, 713 
 
 V. Odem, 161 
 
 Byrne v. Frere, 356 
 
 V. Romaine, 152 
 
 Byrnes !/•. Rich, 611 
 
 By water v. Richardson, 333 
 
 C. 
 
 Cabot V. Haskins, 153 
 
 Cadbury v. Duval, 658 
 
 Caddick o. Skidmore, 127, 130, 699 n., 
 
 700 
 Caddick's Settlement, in re, 90 n., 95, 
 
 364 
 Cadiz V. Majors, 556 
 
 Cadle V. Moody, 181 
 
 Cadman v. Horner, 211, 244, 274 
 
 Cad well V. Blake, 239 
 
 Cadywold, in re, 463 
 
 Cage K.Acton, 618 
 
 Cahill V. Bigelow, 149 
 
 Cain V. Busby, 714 
 
 W.Jones, 761 
 
 u. M'Guire, 126 
 
 Caines v. Grant, 698 
 
 V. Jones, 7 1 4 
 
 t!. Marley, 718 
 
 Calcrafl v. Roebuck, 7, 304, 323, 343, 
 628, 643, 652 
 V. Thompson, 234 
 
 Calder v. Chapman, 556 
 
 Caldwell V. Black, 481 
 
 V. Carrington, 749 
 
 V. Leiber, . 646 
 
 V. Thorp, 482 
 
 V. Williams, 721 
 
 Caledonian, &c., Ry. Co. r. Helens- 
 burgh, Mayor of, 76 
 Caledonian, &c. Ry. Co v. Sprot, 69, 
 
 78, 743 
 Calhoun v. Snider, 520 
 
 Calkins v. Calkins, 486 
 
 Callaghan v. McCredy, 241, 567 
 
 V. Pepper, 145 
 
 Callaway v. Ward, 1 75 
 
 Galley v. Richards, 786 
 
 Callis V. Ridout, 688 
 
 V. Waddy, "^ 264' 
 
 Calthorp v. Hayton, 600 
 
 Calton V. Bragg, 640 
 
 Calverley v. Williams, 326, 649 
 
 Calvert v. Godfrey, 105, 108, 209, 405 n. 
 V. Sebright, 602 
 
 Cambridge, Corp. of, ex parte 82 
 
 Camden u. Benson, 107 
 
 u. Vail, 675 
 
 Camden, Lord v. Batterbury, 180 
 
 Camden, &c. R. R. Co. v. Stewart, 151 
 Cameron v. Mason, 671 
 
 U.Wells, 2 71 
 
 Camfield v. Gilbert, 358, 362 
 
 Cammeyer v. United German Lu- 
 theran Churches, 129 
 
Ixxviii 
 
 INDEX TO CASES CITED OE INTRODUCED. 
 
 Camp V. Bates, 640 
 
 V. Forrest, 759 
 
 Campanari v. Woodward, 47 
 
 Campbell, appellant, 457 
 
 Campbell v. Baker, 57, 119 
 
 V. Baldwin, 671, 676 
 
 U.Campbell, 152,447,449, 
 753 
 V. Fleming, 252, 335 
 
 u. Gardner, 114, 116, 118, 120 
 V. Gittings, 239 
 
 V. Hay, 98 
 
 V. Hooper, 208, 686 
 
 V. Home, 394 
 
 -.■. Ingilby, 720 
 
 V. Johnston, 687, 688, 689, 694 
 V. Ketcham, 212 
 
 V. Lewis, 577 
 
 V. Moxhay, 94 
 
 V. Sandfbrd, 488 
 
 u. Vining, 254 
 
 V. Walker, 687, 688, 691, 693 
 Campion v. Cotton, 707 
 
 Canada v. Canada, 241 
 
 Cane v. Allen, Lord, 690, 693 
 
 V. Baldwin, 373, 401 
 
 Canedy u. Marcy, 160 
 
 Canham v. Barry, 159, 1 74 
 
 u. Rust, 592,593 
 
 Cann v. Cann, 253, 346, 389 n., 396, 
 398, 405 n., 552 
 Cannan v. Denew, 724 
 
 Cannel v. Buckle, 220 
 
 Cannull u. M'Clean, 358,361 
 
 Cannon v. Hartley, 123, 495 
 
 V. Kelly, 47 
 
 V. Mitchell, 15, 159 
 
 V. Rimington, 483 
 
 Canterbury, Archbishop of, in re, 82 
 Canterbury Aqueduct Co. v. Ens- 
 worth, 211 
 Cant's Estate, in re, 87, 88, 188 n. 
 
 (^Costs.) (Preemption.^ 
 Canton Co. u. Northern, &o. R. E. 
 
 Co. 213 
 
 Caple V. Girdler, 184, 625 
 
 Capen v. Doty, 618 
 
 Caple D.McCollum, 701 
 
 Capon V. Roberts 51 
 
 Capper w. Spottiswoode, 675 
 
 Carbery, Lord, v. Preston, 486 
 
 Carbrey v. Willis, 24 n., 58, 656 
 
 Card V. Jaffray, 134 
 
 Carew's Estate, inre, 11,117 n., 118, 700 
 Carey ?;. Callan, 701 
 
 Carleton v. Leighton, 365, 745 
 
 V. Redington, 58, 123, 124 
 
 Carlisle v. Fleming, 
 
 Carlisle «. Rich, 
 
 Carll V. Butman, 
 
 Carne v. Brancher, 
 V. Mitchell, 
 
 Carnes v. Hubbard, 
 
 Carolan v. Brabazon, 
 
 Carpenter, in re, 
 
 V. Bailey, 
 V. Blandford, 
 V. Brown, 
 V. Cresswell, 
 
 151, 154, 155 
 714 
 457 
 233 
 355 n. 
 681 
 167 
 204, 399 
 573 
 259 
 241 
 239 
 
 u.' First Parish in Sutton, 518 
 V. Parker, 181, 602 
 
 V. Schermerhorn, 482, 556 
 V. Snelling, 566 
 
 Carpmeal c. Powis, 173, 786 
 
 V. Profltt, 90 
 
 Carr, ex parte, 4 
 
 V. Duval, 159, 211 
 
 V. Foster, 492 
 
 V. Hobbs, 671 
 
 V. HoUiday, 208 
 
 V. Moulds, 445 
 
 V. Passaic Land Imp. & Build- 
 ing Co. 134, 213 
 V. Roach, 241, 326, 549 
 V. Weld, 786 
 Carrico v. Farmers' & Merchants' 
 
 National Bank, 671, 675, 676, 727 
 
 Carrig w.-Dee, 491 
 
 Carrington v. Brents, 201 
 
 V. Roots, 124, 125 
 
 Carrodus v. Sharp, 372, 630, 644, 649, 
 
 651 
 
 Carroll v. Carroll, 462 
 
 V. Cowell, 136 
 
 V. Darcy, 485, 488 
 
 V. Norwood, 462 
 
 V. Rice, 253 
 
 V. Van Rensselaer, 671 
 
 Carrolls v. Cox, 151 
 
 Carson v. Baker, 179 
 
 V. Blakey, 396 
 
 Cartan v. Bury, 168 
 
 Carter, ex parte, 196 
 
 V. Bank of Georgia, 681 
 
 V. Beck, 649 
 
 V. Bennett, 484 
 
 V. Carter, 236, 737, 740, 743, 
 
 767 
 
 u. Castleberry, 714 
 
 V. Champion, 728, 744, 761 
 
 V. Denman, 577, 601 
 
 V. Ely, D. & C. of, 263 
 
 V. Hamilton, 56 
 
 t.. Harlan, . 123,124 
 
INDEX TO CASES CITED OR INTRODUCED. 
 
 Ixxix 
 
 Carter v. Harris, 
 
 688 
 
 Chalmer v 
 
 Bradley, 
 
 253 
 
 V. Home, 
 
 699 
 
 Chamberlain v. Bayley, 
 
 40 
 
 V. Palmer, 688, 689 
 
 692, 702 
 
 
 jj. Blue, 
 
 210 
 
 V. Sanders, 
 
 661 
 
 
 V. Ewer, 
 
 610 
 
 V. Taggart, 
 
 182 
 
 
 V. Gorh^m, 
 
 378 
 
 V. Uniacke, 
 
 549 
 
 
 V. Lee, 108, 218, 264, 314 
 
 V. Warne, 
 
 64 
 
 
 V. Thompson, 
 
 728 
 
 V. Williams, 
 
 596 
 
 Chambers 
 
 in re, 
 
 500 
 
 Cartwright v. Glover, 
 
 64, 65 
 
 
 V. Betty, 
 
 168,689 
 
 V. Wise, 
 
 703 
 
 
 V. Chambers, 
 
 481 
 
 Carver v. Astor, 
 
 556 
 
 
 V. Griffiths, 
 
 320, 320 11. 
 
 V. Richards, 
 
 394, 647 
 
 
 V. Howell, 
 
 669 
 
 Gary v. Gary, 
 
 691 
 
 
 V. Lecompte, 
 
 149, 155 
 
 Casamajor v. Strode, 109, 316, 320, 320 
 
 n., 373, 375, 382, 384, 389 n., 
 
 405 n. 
 
 Casberd v. Attorney General, 546 
 
 V. Ward, 545, 683 
 
 Casborne v. Barsbam, 689 
 
 Case V. Abeel, 687, 688 
 
 V. James, 484, 738, 749 
 
 Casey d. Inloes, 743 
 
 Cason t!. Bound, 789 
 
 Cass V. Martin, 457 
 
 V. Rudell, 291 
 
 V. Waterhouse, 136, 140, 326 
 
 Cassell V. Collins, jj 126 
 
 Gassidy v. McKenzie, 563 
 
 Castle V. Wilkinson, 206, 749 
 
 Caswell u. Wendell, 611 
 
 Cathcart i'. Bowman, 573, 577 
 
 V. Keirnaghan, 147 
 
 U.Robinson, 210,211,212, 
 
 224, 273, 275, 712, 714 
 
 Gather v. Midland Count. Ry. Co. 77 n. 
 
 Gathrow v. Eade, 438, 523 
 
 Catlin V. Bell, 44 
 
 V. Harned, 646 
 
 V. Hurlburt, 577, 601, 610 
 
 V. Kidder, 481 
 
 V. Ware, ' 458, 727 
 
 Caton V. Caton, ^ 154, 646, 718 
 
 Gator V. Charlton, 196 
 
 V. Pembroke, Earl of, 553 
 
 Catt V. Tourle, 596 
 
 Cattell V. Gorrall, 20, 340, 427, 474 
 
 Cattley !-•. Arnold, 182 
 
 Gatton V. Wylde, 234 
 
 Caulkins v. Harris, 611 
 
 Causton V. Macklew, 405 n., 521 
 
 Gavan, Lady, v. Pulteney, 603 
 
 Cecil Bank v. Snively, 701 
 
 Ghadwick v. Broadwood, 481 
 
 V. Felt, 701 
 
 V. Madon, 48 
 
 Ghaffin V. Chaffin, 775 
 
 V. Kimball, 714 
 
 V. Minchin, 71 
 
 V. Spencer, 714 
 
 V. Tulane, 337 
 
 V. Waters, 689, 692 
 
 Champernowne v. Brooke, 631, 807 
 Champion v. Brown, 175, 213, 671, 681, 
 
 749 
 
 V. Plummer, 134 
 
 V. Rigby, 253, 689, 696 
 
 Champlin v. Haight, 661 
 
 V. Laytin, 243, 330, 756 
 
 V. Parish, 129, 142, 145 
 
 Chance v. McWharter, 671 
 
 Chandelor v. Lopus, 2 
 
 Chandler ii. Beard, 397 
 
 V. Marsh, 549 
 
 Ghandos, Duke of, v. Talbot, 32 
 
 Chandos, Lord, v. Comm. of Inland 
 
 Revenue, 568 
 
 Chant V. Brown, v 785 
 
 Chapel u. Bull, 577,610,611 
 
 Chapin v. Pease, 713 
 
 V. Weed, 688 
 
 Chaplain v. Southgate, 600 
 
 Chaplin v. McAfee, 701 
 
 Chapline v. Chapline, 104 
 
 Chapman v. Beardsley, 671 
 
 V. Brown, 171 n. 
 
 u. Butler, 484 
 
 V. Emery, 715, 717, 720 
 
 V. Fowler, 119 
 
 V. Gibson, 742 
 
 V. Holmes, 577, 612 
 
 V. Speller, 247, 337 n. 
 
 V. Stockwell, 671 
 
 V. Tanner, 671 
 
 Chappell V. Gregory, 160 
 
 V. Rees, 485, 744, 746 
 
 Gharingbould v. Curtis, 210 
 
 Char. Don., Commis. of, v. Wybrants, 
 
 485 
 Charles v. Andrews, 273, 671 
 
 Charless v. Rankin, 59 
 
 Charlton v. Low, 624, 738 
 
Ixxx 
 
 INDEX TO CASES CITED OR INTRODUCED. 
 
 Charlwood v. Bedford, Duke of, 123, 
 
 139, 145 
 
 Charpist v. Sigerson, 151 
 
 Charter v. Trevelyan, 253, 689, 696 
 
 Chase V. Gilman, 538 
 
 V. Lowell, 1 34 
 
 V. McDonald, 738 
 
 V. Weston, 649, 577 
 
 Chastain v. Smith, 703, 708 
 
 Chater r. Beckett, 127 
 
 Chatham v. Brainerd, 26 
 
 Chaudron v. Magee, 758 
 
 Chautauque Co. Bank v. Kisley, 775 
 
 V. White, 743 
 
 Chawner's Will, re, 405 n. 
 
 Cheale v. Kenward, 210, 272 
 
 Cheese v. Cheese, 106, 203 
 
 Cheeseborough v. Millard, 680 
 
 Cheetham v. Sturtevant, 104 
 
 Cheever v. Pearson, 1 23, 1 24 
 
 V. Parley, 486 
 
 Cheney's case, 169 
 
 Cheney v. Watkins, 761 
 
 Cherry v. Newsom, 253 
 
 V. Stein, 491 
 
 Chertsey v. Market, 63 
 
 Cheshire v. Barrett, 686 
 
 Cheshunt College, in re, 89 
 
 Chesley v. Frost, 167 
 
 Chesney's case, 619 
 
 Chesshyre !'. Biss, 747 
 
 Chester «. Gorges, 119 
 
 V. Piatt, 206, 686 
 
 Chesterfield v. janssen, 262, 286 
 
 Chesterfiield, Earl of, v. Janssen, 276 
 
 Chesterman v. Gardner, 549, 553, 762 
 
 Cheston v. Gibbs, 724 
 
 Chetham v. Grugeon, 116 
 
 Chetwood u. Brittian, 161,159,171 
 
 Cheveley v. Fuller, 132 
 
 Chew V. Chew, 70 
 
 Child V. Abingdon, Lord, 631, 643, 806 
 
 V. Douglas, 596 
 
 V. Godolphin, 149, 149 n. 
 
 Childers v. Childers, 700 
 
 Childress v. Ford, 169 
 
 V. Hurt, 101 
 
 Childs V. Griswold, 701 
 
 Chiles V. Nelson, 133 
 
 Chillingworth t). Chillingworth, 101 
 
 Chilton V. Braiden, 671 
 
 V. Butler, 47 
 
 ■• u. Carrington, 196 
 
 Chinn v. Heale, 299, 306 
 
 Chinnook v. Ely, Marchioness of, 
 
 132, 234 
 V. Sainsbury, 56, 234 
 
 Chirac v. Keinicher, 
 Chivall V. Nicholls, 
 Cholmeley v. Paxton, 
 Cholmondley v. Clinton, 
 V. Orford, 
 Chomley's case, 
 Chouteau v. Burlando, 
 
 V. Jones, 
 Christ V. Diffenback, 
 Christ's Hospital v. Budgin, 
 Christian v. Devereux, 
 Christie v. , 
 
 786 
 
 728 
 
 70 
 
 372,484 
 381 
 
 713, 714 
 486 
 714 
 160 
 706 
 487 
 331 
 753 
 148 
 704, 706 n. 
 •168 
 573 
 714 
 169 
 358' 
 708 
 688 
 
 518, 761 
 
 446 n. 
 
 666 
 
 186 
 
 V. Bishop, 
 
 »>. Simpson, 
 
 Christy v. Courtenay, 
 
 Chubb V. Fuller, 
 
 Church V. Brown, 
 
 V. Chapin, 
 
 0. Church, 
 
 V. Legeyt, 
 
 V. Sterling, 
 
 Churchill, ex parte, 
 
 V. Grove, 
 
 V. Small, 
 
 V. Terrell, 
 
 Churchman v. Ireland, 
 
 Cincinnati, &c. R. E. Co. v. Pearce, 56 
 
 Clabaugh v. Byerley, 744 
 
 Claflin V. Carpenter, 123, 124, 126 
 
 V. Godfrey, 549 
 
 Clagatt V. Phillips, 786 
 
 Claggett V. Salmon, 728 
 
 Claiborne v. Crockett, 683 
 
 Glamorgan v. Greene, 569 
 
 V. Lane, 761 
 
 Clanricard v. Henning, 253 
 
 Clanricarde, Lord, v. Henning, 689, 696 
 
 Clanton v. Surges, 714 
 
 Clapham v. Shillito, 4 
 
 Clapp V. Day, 57 
 
 V. Leatherbee, 713, 714 
 
 V. Tirrell, 713, 714 
 
 Clapperton's Estate, in re, 29 
 
 Clare v. Bedford, Earl of, 743 
 
 V. Maynard, 358 
 
 V. Wood, 525 
 
 Clark, ex parte, 692 
 
 V. Baker, 556 
 
 V. Bell, 97, 324 
 
 V. Bosworth, 728, 762 
 
 V. Burnham, 702 
 
 V. Carpenter, 324 
 
 V. Clark, ■63, 786 
 
 V. Condit, 199 
 
 V. Courtney, 57 
 
 V. Dales, 133, 168, 166 
 
 V. Flint, 210, 713 
 
INDEX TO CASES CITED OR INTEODUCED. 
 
 Ixxxi 
 
 Clark i>. French, 
 
 0. Hackwell, 
 f . Henry, 
 V. Hunt, 
 V. Jenkins, 
 I'. Jones, 
 V. Lee, 
 V. M'Anulty, 
 V. Martin, 
 V. May, 
 V. Parr, 
 
 V. Quackenbos, 
 V. Kedman, 
 V. Reed, 
 
 V. Royal Panopticon 
 V. Slaughter, 
 V. Smythies, 
 V. Swift, 
 V. Tucker, 
 V. Upton, 
 Clarke v. Armstrong, 
 
 o. Bodkin, 
 
 V. Dickson, 
 
 V. Elliott, 
 
 V. Faux, 
 
 V. Franklin, 
 
 V. Grant, 
 
 V. Hart, 
 
 V. King, 
 
 i: Locke, 
 
 ;.'. Panopticon, 
 
 V. Redman, 
 
 V. Reins, 
 
 V. Roy, 
 
 V. Royle, 391, 405 
 
 1). Swaile, 
 u. Swift, 
 B. Terrel, 
 V. Wilson, 
 V. Wiiglit, 
 Clarkson v. Edge, 
 
 V. Morgan, 
 V. Read, 
 Clary v. Marshall, 
 Clason V. Bailey, 
 Claunuh v. Allen, 
 Clausen r. La Franz, 
 Clay V. Miller, 
 V. Rufford, 
 V. Shackeray, 
 I!. Khai'pe, 
 r. Thackrali, 
 Claydon l. Green, 
 Clay: on v. Brown, 
 
 V. Burtenshaw, 
 V. Corby, 
 
 714 
 152 
 174 
 75, 681,682 
 727 
 720 
 687 
 600 
 556 
 559 
 611 
 701 
 
 573, 577 
 
 646 
 
 Co. 405 n. 
 
 556 
 
 46 
 
 577, 610 
 
 139 
 
 57 
 
 728, 758 
 
 486, 746 
 
 235, 243 
 
 229, 230 
 20, 339, 549 
 
 205, 457 
 
 160 
 
 646 
 
 49 
 
 241, 347 
 
 67 
 
 458 
 
 206 
 
 396 
 
 n., 672, 676, 
 
 676 n. 
 
 692 
 
 577 
 
 131 
 
 229 
 
 714, 717 
 234 
 758 
 
 102, 109 
 758 
 
 129, 142 
 577 
 708 
 287 
 264 
 493 
 
 396, 81.6 
 492 
 268 
 714 
 126,571 
 493 
 / 
 
 Clayton v. lUingworth, 
 V. Wilton, Lord, 
 
 Cleave v. Moors, 
 Cleaveland v. Burton, 
 
 V. Clark, 
 Cleaves r. Foss, 
 Cleavinger v. Reimar, 
 Clegg V. Clegg, 
 
 V. Edmondson, 
 
 209 
 
 716, 716 n., 
 
 717 
 
 50 
 
 160, 171 
 
 738 
 
 42, 147 
 
 689 
 
 476 n. 
 
 253, 698 n., 699, 
 
 702 
 
 699 
 
 547 
 
 566 
 
 124, 158, 165 
 
 211 
 
 V. Fishwicjr, 
 
 Cleland v. Leech, 
 
 Clemens v. Conrad, 
 
 Clemeilt v. Durgin, 
 
 V. Reid, 
 
 V. Smith, 252 
 
 Clements v, Bostwick, 680 
 
 V. Eccles, 714 
 
 V. Hall, 698, 699 
 
 V. Kyles, 462 
 
 V. Wells, 596, 775 
 
 Clerk V. Clerk, 686 
 
 u. Laurie, 222, 401 
 
 V. Nettleship, 718 
 
 V. Rutland, 713 
 
 V. Wright, 134, 151 
 
 Clermont v. Tasburgh, 211, 214, 311 
 
 Cleveland v. Burrell, 175, 201, 627 
 
 Clifibrd V. Kelly, 168, 700 
 
 V. Laughton, 326 
 
 V. Turrill, 210, 224, 286, 720 
 
 Clifton u. Walmsley, 169 
 
 Climie v. Wood, 33 
 
 Clinan u. Cooke, 134,136,145,152, 
 
 154, 156, 326 
 
 Clitherallw. Ogilvie, 211, 213, 273, 275 
 
 Clive V. Beaumont, 132, 342, 345, 368 
 
 Oliver w. Sanders, 
 Clonmert v. Whitaker, 
 Clopton V. Martin, 
 Close V. Wilberforce, 
 Clough V. Hosford, 
 Clower V. Rawlings, 
 Clowes V. Higginson, 
 Clulow's Trusts, re, 
 Clute V. Robinson, 
 Clyde V. Simpson, 
 Clymer r. Pawkins, 
 Clynn r. Littler, 
 Coates V. Lashley, 
 
 V. Nott. W. W. Co. 
 
 V. Sangston, 
 Cobb V. Hall, 
 Coble B. Wellborn, 
 Coburn, ex parte, 
 Cochran v. Paris, 
 
 460 
 
 405 n. 
 
 171 
 
 38 
 
 179 
 
 671, 673, 675 
 
 161, 162, 232 
 
 182 
 
 573 
 
 661 
 
 481 
 
 186 
 
 99 
 
 377 
 
 iSs, 271 
 
 122, 153, 236 
 
 610 
 
 123; 124 
 
 70 
 
ixxxu 
 
 INDEX TO CASES CITED OE INTRODUCED. 
 
 Cochrane u. Cochrane, 115 
 
 V. Cummings, 56 
 
 V. Robinson, 109 
 
 Cock J). Richards, 171 
 
 Cockburne v. Wright, 521 
 
 Cocke V. Taylor, 361 
 
 Cockell V. Bacon, 66 
 
 V. Taylor, 274, 275, 284, 356, 
 
 378 
 
 Cocker v. Cowper, 1 23 
 
 V. Franklin Hemp & Flax 
 
 Manuf. Co. 165, 259, 271 
 
 Cockerell v. Cholmeley, 70, 112, 253, 
 
 696 
 
 Cockes V. Sherman, 753 
 
 Cockey v. Milne, 761 
 
 Cocking D. Ward, 126, 168 
 
 Cockran v. Irlam, 44 
 
 Cocks V. Izard, 11 
 
 V. Nash, 445 
 
 Codman v. Evans, 26 
 
 V. Winslow, , 169 
 
 Codrington v. Codrington, 445 n. 
 
 Codwise V. Taylor, 679 
 
 Coe V. Bradley, - 701 
 
 V. Talcott, 556 
 
 V. Turner, 243 
 
 Coe's Trust, re, 70 
 
 Coffin V. Cooper, 264 
 
 u. Kay, 727, 728, 753, 756 
 
 Coffman v. Huck, 179, 611 
 
 Coggill V. Hartford & New Haven 
 
 Railroad, 743 
 
 Cohen r. Wilkinson, 77 
 
 Coit V. Fougera,, 675 
 
 Coke V. Wilcocks, 790 
 
 Coker V. Guy, 587 n. 
 
 Colburn v. Mason, 481 
 
 Colby V. Gadsden, 211 
 
 V. Kenniston, 762 
 
 Colclough, in re, 488 
 
 !/. Bolger, 110 
 
 V. Serum, 110 
 
 Colcord V. Seamonds, 683 
 
 Coldcot u. Hide, 172 
 
 V. Hill, 609 
 
 Cole V. Bell, 566 
 
 V. Gibbons, 252, 276, 277, 286 
 
 V. Hawes, 605 
 
 V. McGlathry, 254, 484 
 
 r. Miles, 668 
 
 V. Muddle, 669 
 
 jk Potts, 151, 152 
 
 V. Raymond, , 556 
 
 I. Scott, 671, 753 
 
 J/. Trecothick, 211 
 
 V. Wendell, 169 
 
 Cole !»,. West End of London Ry. 
 
 Co. 73 
 
 U.White, .151 
 
 Colegrave v. Dios Santos, 33, 126 
 
 Coleman v. Foster, 124 
 
 ' V. Lyne, 253 
 
 V. Moore, 646 
 
 V. Rovve, 549 
 
 V. Upcot, 129, 130, 131 
 
 Coles u. Browne, 171' 
 
 V. Kinder, 614 
 
 V. Sims, 596 
 
 i;. Trecothick, 44, 130, 131, 143, 
 
 145, 146, 147, 148, 154, 212, 
 
 273, 275, 688, 692 
 
 Collard, in re, 422 
 
 V. Groom, 315, 316 
 
 V. Roe, 205, 457, 633 
 
 V. Sampson, 386, 404, 405 n., 
 
 462 
 
 Collen V. Gardner, 53 
 
 V. Wright, 44 
 
 Collet V. Thompson, 238, 363 
 
 V. Woollaston, 273 
 
 Collett V. Be Gols, 623, 762 
 
 V. Hover, 183 
 
 y. Munden, 196 
 
 Collier v. Coates, 122, 153, 236 
 
 V. Gamble, 577, 611 
 
 V. Harkness, 681 
 
 V. Jenkins, 193, 304 
 
 V. McBean, 405 n., 740 
 
 V. Mason, 287 
 
 V. Pierce, 491 
 
 <;. Whipple, 114,117 
 
 Collinge's case, 660 
 
 CoUingwood v. Pace, 459 
 
 V. Row, 187 
 
 Collins, ex parte, 87 
 
 ex parte, (Ir.) 673 
 
 V. Archer, 793, 795, 797 
 
 V. Baumgardner, 158 
 
 V. Collins, 140, 289 
 
 V. Gibson, 618 
 
 V. Plumb, 698 
 
 V. Stuteley, 234 
 
 V. Torrey, 486 
 
 CoUins's Charity, in re, 82 
 
 Collins Co. V. Marcy, 1 24 
 
 CoUinson, in re, 704 
 
 V. Lister, 668 
 
 V. Patrick, 719 
 
 Collison V. Lettsom, 597 
 
 Collyer v. Willock, 639 
 
 Colmore v. Tindall, 389 n., 405 n. 
 
 Colson V. Thompson, 155 
 
 Colton V. Ward, 264 
 
INDEX TO CASES CITED OK INTRODUCED. 
 
 JXXXIU 
 
 Colton V. Wilson, 439 
 
 Columbia, Bank of, v. Hagner, . 240 
 
 Colvile u. Parker, 715,718 
 
 Colvin V. Schell, 326 
 
 Colwell V. Hamilton, 386 
 
 Colyer u. Clay, 215,307 
 
 V. Finch, 658, 661, 662 n., 757, 
 
 768, 795, 796, 798 
 
 Combe v. London, Mayor of, 785 
 
 Combs u. Fisher, . 291 
 
 Comer v. Walker, 629 
 
 V. Walkley, 628, 639, 643, 676, 
 
 676 n. 
 
 Comings v. Little, 61 1 
 
 Commonwealth v. Andre, Heirs of, 685 
 
 V. Harnden, 44 
 
 V. Rhodes, 670, 761 
 
 Corapton V. Richards, 25 
 
 Comstock V. Comstock, 577 
 
 V. Farnum, 378 
 
 V. Smith, 556 
 
 Comyn's Estate, in re, 383 n. 
 
 Conant f. Jackson, 212 
 
 Conard v. Atlantic Ins. Co. 728 
 
 Coney V. Cummings, 495 
 
 Congdon v. Perry, 122, 153, 236 
 
 Conger v. Weaver, 358 
 
 Congleton, Mayor of, v. Patteson, 597 
 
 Connable v. Bucklin, • 646 
 
 Connecticut v. Bradish, 720, 728 
 
 V. Jackson, 640 
 
 Connell v. Hardie, 115 
 
 w. McLean, 361 
 
 Connelly v. Pierce, 241 
 
 Conner v. Banks, 672 
 
 V. Chase, 174 
 
 u. Lewis, 701 
 
 Connolly v. Parsons, 9 
 
 Conover v. Conover, 484 
 
 V. Smith, 577 
 
 !;. Walling, 10,102,116,120 
 
 V. Warden, 171, 214,326,345, 
 
 395 
 
 V. Warren, 676 
 
 Oonran v. Barry, 116 n. 
 
 Consolidated Investment Co. v. Riley, 
 
 380 
 
 Const u.Barr, 437,561 
 
 Constigan v. Hastier, 213 
 
 Converse v. Hartley, 714 
 
 Conway u. Alexander, 199 
 
 V. Green, 088 
 
 V. Nail, 724 
 
 V. Shrimpton, 273 
 
 Conwellu. Evill, 174 
 
 Conybeare v. New Brunswick Ry. 
 
 Co. 216, 246 
 
 Conyers o. Renans, 
 
 254 
 
 Cooch r. Goodman, 
 
 122 
 
 Cood V. Cood, 
 
 201, 673 
 
 !.. Pollard, 
 
 673 
 
 Cook, Matter of. 
 
 ■ 523, 540 
 
 Cook V. Aruijdel, Lord, 
 
 594 n. 
 
 V. Booth, 
 
 169 
 
 V. Bronaugh, 
 
 753 
 
 V. Dawson, 396, 658, 662 n. 
 
 V. Doggett, • 153, 236, 239, 241 
 
 V. England, 569 
 
 V. Farrington, 775 
 
 V. Field, 356 
 
 V. Hall, 727 
 
 V. Hammond, 458 
 
 V. Herle, 593 
 
 fc. Stearns, 123, 124 
 
 V. Travis, 762 
 
 V. Ti'imble, 671 
 
 V. Waugh, 335 
 
 V. Williams, 484 
 
 Cooke, in re, 182, 518, 702 
 
 V. Brown, 1 08 
 
 V. Burtchaell, 2"<5 
 
 V. Cooke, 184, 625 
 
 V. Crawford, 665 
 
 u. Dealey, 85 
 
 V. Forbes, 234 
 
 V. Fowndes, 605 
 
 V. Kl41, 714, 761 
 
 V. Soltau, 399 
 
 v. Tombs, 127, 137, 139, 140, 151 
 
 V. Wagster, 1 7 7 
 
 V. Wilton, 535, 739 
 
 Cookson V. Cookson, lh8 n. 
 
 V. Lee, 62, 695 
 
 Cooley !'. Brayton, 758 
 
 Coolidge V. Learned, 492 
 
 V. Melvin, 714 
 
 Coombs V. Jordan, 518, 658, 659 
 
 r. Tarlton, 358 
 
 Coon V. Swan, 785 
 
 Cooper V. Cartwright, 198 
 
 V. Cooper, 552 
 
 V. Denne, 315, ,349, 385, 386, 
 
 387, 389 n., 405 n. 
 
 U.Emery, 365,447,448,449, 
 
 450, 452, 453 
 
 V. France, 461 
 
 V. Hood, 134, 210, 214 
 
 V. Martell, 463 
 
 V. Singleton, 548, 549 
 
 V. Skeel, " 701 
 
 V. Smith, 134, 138, 142, 493 
 
 V. Stower, 180 
 
 V. Trewby, 8, 556 
 
 V. Twynam, 378 
 
Ixxxiv 
 
 TNDEX TO CASES CITED OE INTEODUCED. 
 
 Cooper r. Whitney, 456 
 
 Cooper's Estate, re, 463 
 
 (.'oote V. Coote, 120, 213 
 
 V. Mammon, 756 
 
 Cooth V. Jackson, 140, 149, 151, 288 
 
 Copeland u. Copeland, 728, 743, 744 
 
 V. Mercantile Ins. Co. 57 
 
 V. North East. Ry. Co. 376 
 
 V. Stephens, 64 
 
 Copenheavcr v. Huffaker, 758 
 
 Coppage u. Barnett, 701,714 
 
 Copper V. Wells, 288 
 
 Coppin V. Coppin, 192, 679, 679 n., 
 
 681 n. 
 ■ V. Fernyhough, 369, 775 
 
 Corbett V. Brown, 4 
 
 Corbin v. Healy, 464 n. 
 
 Cordage v. Cole, 164 
 
 Corder v. Drakefbrd, 127 
 
 V. Morgan, 396 
 
 Cordingley v. Cheeseborough, 28, 324, 
 
 326 
 Cordwell v. Mackrill, 781 
 
 Corliss V. Corliss, 728 
 
 Conuick v. Trapaud, 716 
 
 Coriibury, Lord, v. Middleton, 594 n. 
 Cornelius v. Burford, 743 
 
 Cornell v. Jackson, 577, 611 
 
 CorncUison v. Cornellison, 153 
 
 Cornfont v. Fowke, 2, 250 
 
 Corning v. Gould, 492 
 
 Cornish v. Rowley, 259 
 
 Cornwall v. Haislit, 239 
 
 V. Williams, 218, 354 
 
 Cornwallis's case, 755 
 
 Corprew v. Arthur, 714 
 
 Corrall v. Cattell, 20, 340 
 
 Corry v. Crcmorne, 497, 738, 792 
 
 V. Gerteken, ' 743 
 
 Corse V. Leggett, 700 
 
 Corson V. Mulvany, 206, 305 
 
 Cortelyan v. \'an Brunt, 170 
 
 Cory V. Eyre., 749 
 
 Coryton v. Hellier^ 171 n. 
 
 Cosack V. Descoudres, 130 
 
 Coslake v. Till, 210, 262 
 
 Cosser V. Collinge, 214 
 
 Costa V. 'J'urnor, 264 
 
 Costello, v, 99 
 
 Coster V. Bank of Georgia, 676 
 
 r. Baring, 221,419 
 
 V. Monroe Manuf. Co. 549, 551 
 V. Wiirr.ny, 484 
 
 Costigan V. Hastier, 218, 349 
 
 Cothiiy V. Sydenham, 779 
 
 Cottam V. East. Count. Ry. Co. 549, 
 550, 668, 737 
 
 Cotter !'. Layer, 186 
 
 Cotterell i'. Harapson, 658 
 
 V. Horner, 717 
 
 Cottington v. Fletcher, 149, 149 n., 702 
 
 Cottle V. Warrington, 727 n. 
 
 Cotton, ex parte, 33 
 
 V. Cotton, 389 n. 
 
 V King, 715 
 
 U.Lee, 129 
 
 V. Pocasset Manuf. Co. 493 
 
 V. Scudamore, 33, 451 
 
 V. Wood, 701 
 
 CottroU V. Hughes, 497, 621, 622 
 
 V. Watkins, 384, 421, 438 
 
 Couohlin V. Knowles, 122, 153, 236 
 
 Counter v. Macpherson, 102, 291 
 
 Cousing V. Vasey, ' 228 
 
 Coussmaker v. Sewell, 366, 437, 816 
 
 Covenhoven v. Shaler, 171 n. 
 
 Coverley v. Burrell, 27, 299 
 
 Coward v. Odingsale, 262 
 
 Cowdin I. Cram, 241 
 
 Cowell V. Chambers, 419 
 
 V. I-ippitt, 109 
 
 V. Simpson, 675 
 
 V. Thayer, 493 
 
 Cowgill V. Oxmantoun, Lord, 265, 
 
 389 n., 405 n. 
 
 Cowles j'*Bro%vn, 70 
 
 V. Kidder, 123, 124 
 
 1/. Whitman, 210,646 
 
 Cowley V. Watts, 16, 131, 132, 134, 368 
 
 Cowman v. Hall, 456 
 
 Cowpe V. Bakewell, 635 
 
 Cowper D. Mantell, 191 n. 
 
 Cox V. Bateman, 708 
 
 V. Bishop, 38 
 
 V. Chamberlain, 649 
 
 u. Cox, 660 
 
 V. Dolman, 478 
 
 V. Fenwick, 671, 675, 680 
 
 );. Henry, 326,361,611 
 
 I-. Kin?, 375, 612 
 
 V. Middleton, 16, 134,214, 
 
 V. IMilncr, 728, 755 
 
 V. Osborn, 175, 749 
 
 V. Paxton, 708 
 
 '■■ Sprigg, 721 
 
 V. Strode, 358,611 
 
 1'. Wood, ,, 671 
 
 Coxe V. Halstcd, ' 97, 98, 99, 100 
 
 Cozine i-. Gardner, 149 
 
 V. Graham, 122, 149 
 
 Crabb v. Crabb, 704, 705 
 
 Cr^btree v. Wales, 153 
 
 u. AVeUes, 236 
 
 Craddock v. Piper, 397, 405 n. 
 
INDEX TO CASES CITED OR INTRODUCED. 
 
 Ixxxv 
 
 Craddock c. Shirley, 
 
 Crafts i: Tritton, 
 Crapg (:. Holme, 
 Craig, ex parte, 
 
 t. Dimock, 
 V, Hopkins, 
 V. Kittridge, 
 V. Leiper, 
 V. Leslie, 
 ('. Martin, 
 (.. Tappin, 
 V. Watson, 
 Cram v. Hendricks, 
 
 V. Mitchell, 
 Cramer v. Moore, 
 
 V. Kedford, 
 Crane f. Bonnell, 
 V. Caldwell, 
 V. Decamp, 
 ■V. Deming, 
 V. Drake, 
 u. Gough, 
 c. Palmer, 
 Crank v. Cole, 
 Cranston v. Crane, 
 Crary v. Smith, 
 Craven, ex parte, 
 Crawibrd i\ Brady, 
 
 2G5, 325, 331, 
 
 345, 386, 549 
 
 198 
 
 212 
 
 225 
 
 ■ 566 
 
 549 
 
 160 
 
 788 
 
 175, 177, 182, 187 
 
 287, 747 
 
 728 
 
 547 
 
 642 
 
 687, 688 
 
 717 
 
 714 
 
 174, 199 
 
 683 
 
 158, 199,211, 262 
 
 728 
 
 669 
 
 715 
 
 680 
 
 2 
 
 65, 66, 68 
 
 241 
 
 89 
 
 169 
 
 !>. Bertholf, 175 
 
 V. Morrell, 127 
 
 V. Murphy, 400 
 
 V. N. E. Ry. Cy. 377 
 
 Crawley v. Timberlake, 671, 681 
 
 Crawshay «. Maule, 699 n. 
 
 Crayford v. Crayfbrd, 609 
 
 Creagh v. Blood, 208 n., 61 7 
 
 Creed v. Carey, 682, 709 
 
 V. Lancaster Bank, 701, 702, 706 
 
 Creigh v. Henson, 484 
 
 Crenshaw v. Smith, '611 
 
 Cresswell v. Haines, 654 
 
 ('. Lawson, 171 n. 
 
 Crewe ;;. Dicken, 386, 389 n., 405 n., 
 
 664 
 
 Crewe, Lord, v. Edleston, 341 
 
 Crews V. Buroham, . 762 
 
 Cribbins v. Markwood, 273, 276 
 
 Crippen u. Hermance, 646,64 9 
 
 Cripps V. Jec, , 702 
 
 u. Keade, 549, 550 
 
 Crisdee v. Bolton, 40 
 
 Crisler v. Garland, 786 
 
 Crisp V. Heath, 519 
 
 V. Pratt, 705 n. 
 
 Crispin v. Taylor, 694 
 
 Crocker i'. Lewis, 248 
 
 Crocker v. Pierce, 556 
 
 ■r. Whitney, 378 
 
 Crockett V. McGuire, 761 
 
 Crockford v. Alexander, 1 78, 229 
 
 V. Winter, 640 
 
 Croft V. Arthur, 253 
 
 Crofton, in re, 187 
 
 V. Ormsby, 720, 749, 762 
 
 Crofts V. Middleton, 206, 207, 473,474, 
 
 603, 715, 739 n., 743 
 
 V. Wilkinson, 750 
 
 Croker y. Martin, '715 
 
 Croly V. Callaghan, 681 n. 
 
 Crompton v. Melbourne, Lord, 554 
 
 Crooker v. Jewell, 5 7 7 
 
 Croome ji. Lediard, 161, 162, 319, 651 
 
 Crop V. Norton,, 218, 349, 354, 700,.70], 
 
 701 n., 702 
 
 Crosbie u. Sugrue, 477,481 
 
 V. Tooke, 220 
 
 Crosby v. Berger, 785, 786 
 
 )'. Bessey, 492 
 
 1-. Chase, 775 
 
 u. Middletoff, 1 73 
 
 V. Percy, 439 
 
 «. Wadsworth, 122,124,125, 
 
 127 
 
 Crosier u. Acer, 252 
 
 Cross'!!. Faustenditch, 721 
 
 V. Noble, 251, 549 , 
 
 I'. Peters, 2 
 
 Crosse V. Beaufort, Duke of, 633 
 
 V. Genl. Rev. &c. Society, 67 
 
 V. Keene, 32 
 
 V. Laurence, 32 
 
 V. Young, 600 
 
 Crossfield v. Morrison, 609 
 
 Crosskey «. Mills, 53 
 
 Crossley v. Lightowler, 24 n., 58, 492 
 
 Crouch V. Fowle, 608 
 
 V. Hooper, 419 
 
 Crow V. Tinsley, 518 
 
 V. Tyrrell, 445 n. 
 
 Crowder «. Austin, 9, 10 
 
 Crowe V. Ballard, 253, 692 
 
 Crowningshield v. Kittridge, 71 9 
 
 Croyston v. Banes, 149 
 
 Crozier !;.>• Young, 706 
 
 Cruise u. Christopher, 275 
 
 Crumbaugh D. Kugler, 714 
 
 Cruse V. Nowell, 18, 67, 389 n., 405 n. 
 
 Crutchley v. Jerningham, 230, 231 
 
 Cryder's Appeal, .658, 659, 661 
 
 Crystal Palace Ry. Co. v. Divers, 83, 
 
 88 
 Cubbidge v. Boatwright, ' 668 
 
 Cuckfleld Burial Board, in re, 74 
 
Ixxxvi 
 
 INDEX TO CASES CITED OE INTRODUCED. 
 
 Cuddon V. Tite, 1 04 
 
 Cufi' y. Borland, '215 
 
 u. Hall, 62, 71 
 
 V. Penn, 158 
 
 Cuff'ee V. Milk, 464 n. 
 
 Cullam V. Branch Bank, 548, 553 
 
 Ciilley V. Taylerson, 476, 481 
 
 Cullum I'. Bank, 629 
 
 Culhvick 0. Swindell, 33 
 
 Culpepper's case, 741 
 
 Culpepper v. Aston, 658, 660, 662, 758 
 
 Culver V. Godfrey, , 120 
 
 Cumberland v. Codrington, 195 
 Cumberland Coal Co. v. Sherman, 252, 
 
 253 
 
 Cummings v. Arnold, 158, 165 
 
 V. Coleman,. 789 
 
 c. Dennett, 158 
 
 !!. Jennett, 645 
 
 V. Putnam, 158 
 
 Cummins v. Kennedy, 611 
 
 V. Little, 98 
 
 Cunningham u. Dvvyer, 158 
 
 V. Hawkins, 174 
 
 V. McKindley, 484 
 
 V. Sharp, 573 
 
 V. Williams, 102 
 
 Curling V. Flight, 349, 350, 352, 376 
 
 v. Shuttleworth, 400 n. 
 
 . Currant v. Jago, 70G 
 
 Curre c. Bowyer, 189 
 
 Currens v. Hart, 755 
 
 Currer v. Walkley, 660 
 
 Currie v. Nind, 405 n., 713, 715 
 
 Currier v. Gale, 482, 492 
 
 V. Howard, 125 
 
 Curry v. Syles, 645 
 
 Curson r. Belworthy, 245 
 
 Curt V. Middleton, 498 
 
 Curtice i'. Thompson, 58 
 
 Curtis V. Buckingham, Marquis of, 229 
 
 V. Created, 239 
 
 V. Lunn, 75,3 
 
 V. Mundy, 523, 728, 755, 7G2 
 
 u. Noonan, 124 
 
 V. Price, 110 
 
 V. Spitty, 598 
 
 V. White, 577 
 
 Curwyn v. Milner, 276 
 
 Curzon V. Belworthy, 273 
 
 Gushing V. Alwvn, " 189, 462 
 
 »y. Hurd, 518, 727, 728, 779 
 
 Cushman w. Blanchard, 577,611 
 
 Cutlibert i>. Baker, 313 
 
 V. Liwson, 493 
 
 Cuthbertson «. Irving, 182 
 
 Cutler V. Pope, 125 
 
 Cutler V. Simons, 230 
 
 i>. Tuttle, 701,702 
 
 Cutts, ex parte, 148, 201 
 
 V. Salmon, 9, 689 
 
 u. Thodey, 22, 183, 252, 266, 
 
 271 
 
 Cuyler v. BraTidt, 775 
 
 Cythe V. La Fontain, 241 
 
 D. 
 
 Dacre v. Patrickson, 195 
 
 Dady v. Hartridge, 656 n. 
 
 Dailey v. Beck, 577 
 
 Dakin v. Cope, 210, 638, 649 
 
 V. Whimper, 714, 715, 720 
 
 V. Williams, 40 
 
 Dalby, ex parte, 775 
 
 V. Pullen, 264, 316 
 
 Dale, ex parte, 682 
 
 U.Hamilton, 48,127,151,698, 
 
 699 11., 700 
 
 V. Harrison, 713 
 
 V. Lister, 306 
 
 V. Livingston, 785 
 
 ' V. , Solicit, 236 
 
 Dal ton V. Hammond, 562 
 
 V. Rust, 324 
 
 Daly V. Duggan, 288 
 
 Dalzell V. Crawford, 658, 661 
 
 V. Odell, 743 
 
 Dana v. Coombs, 686 
 
 V. Hancock, 165 
 
 V. Newhall, 753 
 
 V. Valentine, 492 
 
 Dando v. Trcmper, 167 
 
 Danibrth v. Lancy, 151 
 
 Daniel v. Adams, 61, 145, 206, 216 
 
 V. Anderson, 24 n., 320 
 
 «.■ Mitchell, 3, 4, 5, 56, 1 74, 243, 
 
 255 
 
 Daniels v. Davison, 178, 182, 233, 303, 
 
 762, 775 
 
 Darby v. Darby, 699 n. 
 
 " V. Whitaker, 140, 210, 221, 288 
 
 D'Arcy v. Blake, 624 
 
 V. D'Arcy, 252 
 
 Darcy V. Hall, 555 
 
 Dare v. Tucker, 34, 447 
 
 Dare Valley R. Co. in re, 287 
 
 Dark v. Johnston, 123, 124 
 
 Darkiu v. Darkin, 707 
 
 V. Marye, 104 
 
 Darley v. Singleton, 275 
 
 Darhngton v. Hamilton, 7, 28, 300, 348, 
 
 369, 382, 764 
 
INDEX TO CASES CITED OR INTRODUCED. 
 
 Ixxxvii 
 
 Darrell v. Pritchard, 
 
 234 
 
 Davis V. Nisbett, 
 
 222 
 
 232, 371 
 
 Darrill v. Terry, " 
 
 706 n. 
 
 V. Parker, 206, 
 
 215, 
 
 233, 305, 
 
 Darrington v. Borland, 
 
 98 
 
 
 
 627, 628 
 
 Dan-is's case. 
 
 183 
 
 V. Rainsford, 
 
 
 25 
 
 Dart V. Dart, 
 
 656 
 
 V. Robertson, 
 
 
 147 
 
 Dashwood, ex parte, 
 
 88 
 
 V. Shepherd, 
 
 
 324 
 
 Daughaday v. Payne, 
 
 671, 676 
 
 V. Shields, 
 
 
 129 
 
 Dauner v. Shissler, 
 
 460 
 
 V. Simpson, 
 
 
 687, 688 
 
 Davall V. New River Co. 
 
 295 
 
 V. Smith, 
 
 
 600, 611 
 
 Davenport v. Bishopp, 
 
 720 
 
 V. Stonestreet, 
 
 
 199 
 
 V. Farrar, 
 
 457 
 
 V. Strathmore, 
 
 
 521, 761, 
 
 V. Lacon, 
 
 519 
 
 V. Symonds, 158, 
 
 159, 
 
 160, 167, 
 
 V. Mason, 
 
 158 
 
 
 
 653, 699 
 
 V. Tilton, 
 
 523 
 
 V. Thomas, 
 
 
 169, 200 
 
 V. Woodbridge, 
 
 378 
 
 V. Tingle, 
 
 
 743 
 
 Davey v. Durrant, 
 
 60,66 
 
 V. Wetherell, 
 
 
 701 
 
 V. Miller, 
 
 457, 458 
 
 Davis's Estate, in re. 
 
 
 82 
 
 Davidson v. Ernest, 
 
 179 
 
 Davison v. Gent, 
 
 
 123 
 
 V. Gardner, 206, 691 n. 
 
 u. Waite, 
 
 
 749 
 
 II. Greer, 
 
 160 
 
 Davoue v. Fanning, 687 
 
 688 
 
 089,691, 
 
 V. Van Pelt, 
 
 241 
 
 
 692 
 
 693, 694 
 
 Davie v. Beardsham, 1 75 
 
 , 183, 184 
 
 Davy V. Barber, 
 
 628 
 
 , 631, 805 
 
 Davies, m re, 
 
 465 
 
 V. Morgan, 
 
 
 569 
 
 V. Austen, 
 
 378, 381 
 
 Davys V. Howard, 
 
 
 709 
 
 V. Cooper, 5, 2T3, 274 
 
 277, 285, 
 
 Dawes v. Betts, 
 
 7 
 
 , 350, 764 
 
 
 295 
 
 V. King, 
 
 
 3 
 
 V. D'Arcy, 
 
 465 
 
 Dawson v. Baldwin, 
 
 
 593 
 
 V. D.ivies, (4 Bea.) 
 
 ■ 781 
 
 V. Brinckman, 
 
 
 303 
 
 V. Davies, (6 Jur. N. 
 
 S.) 5 
 
 V. Dawson, 
 
 
 99, 188 n. 
 
 V. Jones, 
 
 206 
 
 V. Dyer, 
 
 
 239 
 
 V. Lowndes, 
 
 419 
 
 w. Ellis, 
 
 
 142 n. 
 
 V. Pen ton, 
 
 220 
 
 V. Massey, 
 
 
 353, 692 
 
 V. Sear, 
 
 743 
 
 V. Prince, 
 
 
 738 
 
 V. Simonds, 
 
 211 
 
 V. Yates, 
 
 
 252 
 
 u. Thomas, 
 
 681, 775 
 
 Day V. Arundel, 
 
 
 788, 789 
 
 V. Tolleniache, 
 
 205, 468 
 
 V. Day, 
 
 
 378 
 
 V. Vernon, 
 
 442 
 
 J). Finn, 
 
 
 324 
 
 V. Wescomb, 
 
 70 
 
 V. Luhke, 
 
 
 268 
 
 Davis's case. 
 
 181 
 
 V. Newman, 
 
 
 244, 273 
 
 Davis, ex parte, 
 
 689 
 
 V. Perkins, 
 
 
 33 
 
 V. Austen, 
 
 378 
 
 V. Preskett, 
 
 
 683 
 
 V. Bigler, 
 
 719 
 
 u. Roth, 
 
 
 708 
 
 V. Blunt, 
 
 728 
 
 u. Wells, 
 
 
 43, 215 
 
 V. Davis, 
 
 708 
 
 Deacon v. Smith, 
 
 
 708, 709 
 
 i: Dysart, Lord, 
 
 444 
 
 Deaderick v. Watkins, 
 
 
 275 
 
 V. Farr, 
 
 126 
 
 Deakins v. HoUis, 
 
 
 171 n. 
 
 V. Graves, 
 
 713 
 
 Dealty v. Murphy, 
 
 
 701 
 
 V. Headley, 
 
 201, 209 
 
 Dean v. Brown, 
 
 
 476 
 
 V. Hoe, 
 
 213 
 
 V. Dean, 
 
 
 671, 701 
 
 V. Home, 
 
 213 
 
 V. Mitchell, 
 
 
 456 
 
 V. Hopkins, 
 
 174 
 
 V. Thwaite, 
 
 
 485 
 
 V. Jones, 
 
 134, 165 
 
 «. Williams, 
 
 
 640 
 
 V. Lamb, 
 
 671 
 
 Deane v. Rastron, 
 
 
 274 
 
 V. r>ane. 
 
 563 
 
 Dearborn v. Cross, 
 
 
 158 
 
 V. Lewis, 
 
 361 
 
 Dearie v. Hall, 
 
 
 378, 380 
 
 V. Lyman, 
 
 577 
 
 Dearmau v. Radclifie, 
 
 
 713 
 
 V. Meeker, 
 
 2 
 
 Dearman v. Wyche, 
 
 
 487 
 
Ixxj 
 
 XVIU 
 
 INDEX TO CASES CITED OR INTRODUCED. 
 
 Dearth v. Williamson, 573 
 
 Deas V. Horry, 462 
 
 Dease v. Jones, 482 
 
 De Beauvoir, in re, 83 
 
 V. Owen, 477 
 
 De Beauvoir's Trusts, in re, 89, 190 
 
 De Beil v. Thomson, 146 
 
 De Bernales v. Fuller, 610 
 
 V. Woori, 640 
 
 De Bevoise v. Sandford, 687 
 
 Deboe v. Lowen, 464 n. 
 
 De Caters v. Chaumont, 687, 693 
 
 Dech's Appeal, 224 
 
 De Chaumont v. Forsythe, 577 
 
 De Cordova v. Smith, 129, 263 
 
 Decouche v. Savetier, 484 
 
 Deg V. Deg, 701 n., 708 
 
 De Graves v. Smith, 4 
 
 De Havilland v. Bowerbank, 640 
 
 De Iloghton v. Money, 722 n. 
 
 Dehon v. Foster, 201 
 
 Deibler v. Barwick, 680 
 
 Uekay v. Durrah, 482 
 
 Delacour i'. Freeman, 730 
 
 Delacroix v. Bulkley, 158 
 
 Delafield v. Anderson, 273 
 
 Delane v. Delane, 702 
 
 Delaplaine v. Lawrence, 61 
 
 Delassus v. Boston, 671 
 
 Delavergne «. Norris, 611 
 
 Deller v. Prickett, 52 
 
 V. Simonds, 342 
 
 De Long u. Stanton, 169 
 
 Deloraine v. Brown, 254 
 
 Demaree v. Driskill, 706 
 
 Demarest v. Willard^ 577, 581 
 
 V. Wynkoop, 396, 482, 484, 
 
 486, 647, 738, 753 
 
 Deming v. Bullitt, 57 
 
 De Moleyn's, Sir John, case, 520 
 
 De Montmorency v. Devereux, 253, 689 
 
 De Mott V. Starkey, '789 
 
 Dempsey v. Dempsey, 103 
 
 Den V. Carson, 523 
 
 V. De Hart, 714 
 
 V. Keleburn, 523 
 
 V. Manners, 462 
 
 V. Pidcock, 646 
 
 v. Richards, 482 
 
 V. Rickman, 727 
 
 V. Small, 464 n. 
 
 V. Teller^, 97 
 
 V. Zabriskie, 464 n. 
 
 Dendy v. Simpson, 375, 391 
 
 Denew v. Dave^ell, 36, 45 
 
 Denn v. Cartwright, 749 
 
 V. Kemeys, 620 
 
 Denn v. McKnight, 687, 749 
 
 V. Wright, 687 
 
 Denne v. Light, 16, 24 n., 330 
 
 Dennere v. Boyer, 241 
 
 Denning v. Henderson, 103, 635 
 
 V. Smith, , 790 
 
 Dennis v. Dennis, 462 
 
 V. Heath, 549 
 
 V. McCagg, 271 
 
 V. Williams, 671 
 
 Dennison v. Goehring, 702, 703, 721 
 V. Kobbinett, 177 
 
 Denny v. Dana,\ 723 n. 
 
 V. Devonshire, 490 
 
 V. Gilman, 484 
 
 V. Hancock, 314 
 
 Densem v. Elworthy, 659 n. 
 
 Denston v. Morris, 549, 553 
 
 Dent V. Dent, 709 
 
 Denton v.' Davies, 708 
 
 V. Downer, 688, 689 
 
 V. McKenzie, 701 
 
 V. Seward, or Stewart, 151, 
 151 n., 233 
 Denys v. Shuckburgh, 476 n., 481 
 
 De Peyster v. Clendenning, 462 
 
 V. Gould, 701 
 
 V. Hasbrouk, 160 
 
 Derby Canal Co. w.'Wilmot, 539 
 
 De Rivafinola ii.Corsette, 241 
 
 Derush v. Brown, 456 
 
 Desart, Lord, v. Goddard, 152 
 
 Desborough v. Harris, 660 
 
 De Sewhanberg v. Buchanan, 244 
 
 De Sorbein v. Bland, 656 
 
 Despard v. Walbridge, 1 74 
 
 Despatch Line of Packets v. Bel- 
 lamy Manuf. Co. 33, 57 
 Devar v. Cai-dwell, 573 
 De Vaux v. Steinkeller, 5 
 Devaynes v. Robinson, 62 
 Devenish u. Brown, 77, 212 
 Deverell v. Bolton, Lord, 345, 363, 
 
 367 n. 
 
 Devine v. Plolloway, 482 
 
 De Visme, re, 706 
 
 u. De Visme, 627, 628, 631, 
 
 635, 637 
 
 Devonshire, Duke of, v. Eglin, 124 
 
 Devore v. Sunderland, 577 
 
 Devoy v. Devoy, 704, 705 
 
 Dew V. Clarke, 201 
 
 Dewell r. Tufnell, 100' 
 
 Dewey v. Bayntum, 706 
 
 V. Field, 7, 743 
 
 V. Long, 701 
 
 De Witt V. Moulton, 727, 761 
 
INDEX TO CASES CITED OR INTRODUCED. 
 
 Ixxxix 
 
 De Wolfu. Haydn, 
 V. Pratt, 
 V. Strader, 
 Dews V. Brandt, 
 Dexter v. Arnold, 
 V. Harris, 
 Dey V. Dunham, 
 D'Eyncourt v. Gregory, 
 Dias V. Glover, 
 Dibbin v. Baker, 
 Dibble v. Mitchell, 
 Dick V. Cooper, 
 V. Donald, 
 V. Lindsay, 
 
 556 
 
 175 
 
 786 
 
 275, 277, 280 
 
 484, 486 
 
 755, 762 
 
 728, 755, 762 
 
 33 
 
 627 
 
 ■ 396 
 
 675 
 
 11 
 
 19 
 
 11 
 
 Dickenson v. Dickenson, 381, 659, 668 
 
 V. Heron, 267, 630, 643, 649 
 
 U.Wright, 715,717 
 
 Dicker r. Jackson, 240 
 
 Diekerson v. Campbell, 755, 781 
 
 V. Tillinghast, 713 
 
 Dickey v. Lyon, 762, 774 
 
 Dickinson v. Adams, 153 
 
 V. Chase, 683 
 
 V. Codwise, 708 
 
 V. Davis, 706 
 
 L'. Glenney, 206 
 
 Diehl V. Page, 762 
 
 Dietrich v. Mitchell, 785 
 
 Digby V. Browne, 118 
 
 V. Irvine, 519, 523 
 
 Digs V. Boys, 758 
 
 Dike V. Ricks, 662 
 
 Dllkes V. Broadmead, 612 
 
 Dill V. Camp, 252 
 
 t). Wareham, 236. 251 
 
 Dillon V. Cruise, 484, 487 
 
 Dillon, Lord, «. Costelloe, 741 
 
 Dimes v. Grand June. Canal Co. 744 
 
 Dimmick v. Lockwood, 611 
 
 Dimmock v. Hallatt, 2, 4, 9, 31, 118, 
 
 324 
 
 Dimsdale v. Dimsdale, 276 
 
 Dinn v. Grant, 671 
 
 Dinning v. Henderson, 84 
 
 Distilled Spirits,'The, 757 
 
 Dixon V. Astley, 229, 230, 343 
 
 V. Dixon,' 683 
 
 !>. Doe, 728, 762 
 
 V. Gayfere, 197, 476, 481, 484, 
 
 485, 678 
 
 V. Holdrojd, 241 
 
 V. Jackson, 89 
 
 V. Rowan, 189 
 
 I'. Wilkinson, 752 
 
 Doan V. Mauzy, 233 
 
 Doar V. Mathews, 268 
 
 Dobbins p. Brown, 610 
 
 Dobbyn v. Adams, 715 
 Dobell V. Hutchinson, 30, 130, 137, 
 
 237, 259 
 
 0. Stevens, 4, 248 
 
 Dobson V. Leadbeater, 788 
 
 V. L()rd, 689 
 
 V. Racey, 67, 688, 689, 693, 
 
 696 
 
 Dock V. Hart, 127 
 
 Dodd u. Acklom, 123 
 
 V. Burchell, 24 n., 58 
 
 0. Salisbury & Yeo. Ry. Co. 73 
 
 Dodds V. Dodds, * 462 
 
 Dodge V. Essex Ins. Co. 254, 484 
 
 V. Nichols, 168, 755 
 
 V. Tileston, 45 
 
 Dodson V. Simpson, 668, 669 
 
 Doe V. Abel, 188 n. 
 
 V. AUsop, 728 
 
 V. Andrew.s, 786 
 
 V. Angell, 476, 480 
 
 V. Archer, ' 752 
 
 c. Barksdale, 481, 482 
 
 0. Barnard, 481 
 
 V. Barton, 181 
 
 M. Beckett, 479 
 
 V. Benham, or Billett, 481 
 
 V. Benson, 159 
 
 V. Bingham, 477 
 
 V. Blackburn, 459 
 
 V. Bold, 480 
 
 u. Bottriell, 713 
 
 V. Boulton, 1 79 
 
 V. Bramston, 482 
 
 u. Breach, 179 
 
 V. Brightwen, 399 
 
 V. Brooks, 437, 620 
 
 V. Brydges, 450 
 
 V. Burdett, 781 
 
 V. Burt, 169 
 
 V. Calvert, 399 
 
 V. Caperton, 180 
 
 i: Carter, 180, 475, 481 
 
 V. Chamberlaine, 180 
 
 V. Cochran, 122, 179 
 
 II. Craiger, 4,64 n. 
 
 V. Creed, 521 
 
 V. Davidson, 375 
 
 V. Davies, 390 n., 419 
 
 V. Dyeball, 476 
 
 V. Edgar, 180, 375, 481 
 
 i\ Edmonds, 479,482 
 
 V. Edwards, 571 
 
 <'. Evans, 61, 518, 520, 541 
 
 V. Ewart, • 462 
 
 V. Eyre, 479 
 
 r. Gardiner, 476 , 
 
xc 
 
 INDEX TO CASES CITED OK INTRODUCED. 
 
 V. Gower, 
 
 
 481 
 
 Doe V. Reid, 
 
 589 n. 
 
 V. Griiy, 
 
 
 571 
 
 V. Rock, 
 
 180, 481 
 
 V. Greenhill, 
 
 
 519 
 
 V. Roe, 
 
 571 
 
 V. Groves, 
 
 
 480, 483 
 
 V. Rolfe, 
 
 716 
 
 V. Harris, 
 
 
 463 
 
 V. Routledge, 
 
 713, 720 
 
 V. Hayley, 
 
 
 589 n. 
 
 V. Rowe, 
 
 711, 713, 715 
 
 V. Helder, 
 
 
 520, C'21 
 
 V. Rusham, 
 
 714 
 
 V. Hellard, 
 
 
 375 
 
 V. Samples, 
 
 445 n. 
 
 V. Hertford, Lord, 
 
 786 
 
 V. Saunders, 
 
 374 
 
 V. Hinde, 
 
 
 481 
 
 V. Sayer, 
 
 179 
 
 V. Hog,^, 
 
 
 730 
 
 V. Scarborough, Lore 
 
 466 
 
 V. Hopkins, 
 
 
 714 
 
 V. Seaton, 
 
 563, 785 
 
 V. 'Horrocks, 
 
 
 481 
 
 V. Smith, 
 
 179 
 
 V. Howland, 
 
 
 719 
 
 V. Smyth, 
 
 664 
 
 V. Jackson, 
 
 
 179 
 
 V. Spooner, 
 
 375 
 
 V. James, 
 
 
 445 n., 713 
 
 V. Stanion, 
 
 16, 178, 179 
 
 V. Jauncey, 
 
 
 476 
 
 V. Stone, 
 
 558 
 
 ■c. Jones, 
 
 49 
 
 7, 521, 622, C26 
 
 V. Sumner, 
 
 481 
 
 V. Langdon, 
 
 
 621 
 
 V. Thompson, 
 
 181,480 
 
 V. Lawder, 
 
 
 1-79 
 
 V. Tidbury, 
 
 376 
 
 V. Lea, 
 
 
 159 
 
 V. Waller, 
 
 179 
 
 V. Leeds, &c. 
 
 Ry. 
 
 Co. 78, 81, 86, 
 
 V. Watkins, 
 
 786 
 
 
 
 179 
 
 V. Webber, 
 
 713 
 
 1'. Lewis, 
 
 
 713, 715 
 
 V. Weston, 
 
 570 
 
 u. Lipjlitfoot, 
 
 
 477 
 
 V. Wheeler, 
 
 571 
 
 V. Liversedge, 
 
 
 480 
 
 V. Wilkins, 
 
 415 
 
 V. Luiricin, 
 
 
 750, 774 
 
 V. Williams, 
 
 477, 479 
 
 V. Mandiester 
 
 Ry. 
 
 Co. 82, 85 
 
 V. Willis, 
 
 374 
 
 r. Manning, 
 
 
 714 
 
 V. Woodroffe, 
 
 481 
 
 V. Maple, 
 
 
 409 
 
 V. Woodward, 
 
 734 n. 
 
 V. Martin, 
 
 
 6, 721 
 
 V. York, Archbishop 
 
 of, 390, 476 n. 
 
 V. Martyr, 
 
 
 714, 7-20 
 
 
 477 
 
 V. Massey, 
 
 
 479 
 
 Doe d. Carter v. Barnarc 
 
 476 
 
 V. Micklem, 
 
 
 171 nj 
 
 Doggett V. Emerson, 2, 
 
 3, 5, 56, 120, 
 
 V. Miller, 
 
 
 -179 
 
 243, 253, 254 
 
 255, 287, 642 
 
 V. Moffet, 
 
 
 495 
 
 Doherty v. AVaterford & Limerick 
 
 V. Moore, 
 
 
 479, 480 
 
 Ry. Co. 
 
 224 
 
 V. MoLilsdale, 
 
 
 480, 49/, 62-2 
 
 Dole 0. Thurlowi 
 
 433,495, 727 
 
 V. Needs, 
 
 
 168 n. 
 
 Dolman v. Nokes, 
 
 69, 214, 744 
 
 V. Neeld, 
 
 
 374, 3 75 
 
 Doloret v. Rothschild, 
 
 210, 262 
 
 V. North Staffordshire Ry. ' 
 
 Dolph V. White, 
 
 577 
 
 Co. 
 
 
 81, 85, 86 
 
 Dolton V. Hewen, 
 
 660, 662 
 
 V. Oxendon, 
 
 
 169 
 
 Dominick c. Michael, 
 
 270, 347 
 
 V. Oxenham, 
 
 
 477, 481 
 
 Domville v. Berrington, 
 
 99, 115 
 
 V. Page, 
 
 
 480 
 
 c. Lamb, 
 
 224 
 
 V. Pearsey, 
 
 
 375 
 
 Don V. Lippman, 
 
 289 
 
 V. Pedgriph, 
 
 
 144 
 
 Donahoe v. Emery, 
 
 611 
 
 V. Perkins, 
 
 
 7 
 
 Donald V. Scott, 
 
 163 
 
 V. Pett, 
 
 
 617 
 
 Donaldson v. Donaldson, 
 
 719 
 
 V. Philips, 
 
 
 734, 735 
 
 V. McRoy, 
 
 9, 10 
 
 u. Phillipps, 
 
 478,479,480, 571 
 
 V. Waters, 
 
 153 
 
 V. Preston, 
 
 
 571 
 
 Donegal, Marquis of, v. 
 
 Greg, 245 
 
 V. Price, 
 
 
 497, 622 
 
 Donnell v. Dunlop, 
 
 359 
 
 V. Protheroe, 
 
 
 356 
 
 V. King, 
 
 787, 789 
 
 I. Pnllen, 
 
 
 179 
 
 V. Thompson, 
 
 601, 611 
 
 u. Reddin, 
 
 
 727 
 
 Donnellan o. Read, 
 
 148 
 
 f. Reed, 
 
 
 728, 755, 762 
 
 Donohoe v. Conrahy, 
 
 700 
 
INDEX TO CASES CITED OK INTRODUCED. 
 
 XCl 
 
 Donovan v. Fricker, 254, 255, 642 
 
 Don's Estate, in re, 459 
 Doo V. London & Croydon Ry. Co. 75, 
 
 78 
 Doody r. Higgins, 659 n. 
 Doogood V. Rose, 239 
 Dooley v. Walcott, 755, 762 
 Doolin V. Ward, 1 1 
 Doolittle V. Lewis, 396 
 i'. Lyman, 714 
 Doran v. Wiltshire, 659, 660 
 Dorin w. Harvey, 352 
 Dorr V. Sliaw, 680 
 Dorrett v. Meux, 420 n. 
 Dorrow v. Kelly, 738 
 Dorsey v. Campbell, 104 
 V. Clarke, 701, 703 
 V. Jack man, 549 
 !.. Smith,' 646 
 Doswell V. Bufhanan, 556, 753 
 Doty i'. Wilder, 42, 145, 147 
 Doughaday i-. Paine, 775 
 Dougherty v. Jack, , 714 
 Doughty II. Bowman, 589 n. 
 c. King, 714 
 Douglas V. Archbutt, 44 
 V. Culverwell, 199, 275 
 II. Dunlap, 714 
 V. N. AV. Ry. Co. 74, 83, 407 
 !'. Shumway, .126 
 V. Wai-d, 720 
 V. Whitrong, 187 
 V. Yallop, 547 
 Douglass u. Price, 703 
 V. Spears, 1 29 
 Douglasse v. Waad, 715 
 Dover, Warden, &c. v. South East- 
 ern Ry. Co. 77 n. 
 Dow V. Drew, 640 
 u. Jewell, 701 
 ii. Lewis, 4 96 
 V. Warren, 482 
 Dowell V. Dew, 152, 156, 206, 752 
 ,.-. Webber, 482 
 Dowle V. Lucy, 99 
 Dowling V. Hudson, 658, 660 
 V. Legh, " 642 
 D. Maguire, 141, 206, 686 
 Dowman v. Rust, 658 
 Downe, Lord, v. Morris, 616 
 Downer i: Brackett, 523 
 Downes v. Bullock, 488 
 V. Grazebrook, 689 
 Downing v. Brown, ■ 13 
 V. Ford, 482 
 i). Mount Washington 
 
 Road Co. 76 
 
 Downman v. Williams, 57 
 
 Dowse I). Derivall, 625 
 
 Dowson V. Solomon, 8, 201, 292, 342 
 
 Doyle V. Peerless & Co. 556 
 
 V. Sleeper, 701, 706, 714 
 
 V. Teas, 727 
 
 D'Oyley o. Powis, Lady, 53, 99 
 
 Dradrich i: Armour, 460 
 
 Drake v. Baker, 358, 361 
 
 V. Barker, 358' 
 
 V. Wales, . 123, 124 
 
 V. Wells, 126 
 
 Drant v. Vause, 187 
 
 Draper v. Borlace, 743 
 
 Drapers' Co. i: Yardley, 775 
 
 Draj son w. Pocock, , 405 n., 665 
 
 Drayton v. Drayton, 691 
 
 Dresel v. Jordan, 129, 206, 217, 257, 
 
 264, 557, 573, 727 
 
 Dresser v. Norwood, 757 
 
 Drew V. Kimball, 728, 743 
 
 V. Xorbury. Lord, 758 
 
 V. Towle, ' 600, 611 
 
 Drewe o. Corp, 302, 395 
 
 V. Hanson, 320, 320 n., 321 • 
 
 Driggs V. Dwight, 361 
 
 Dring V. Greetham, 656 
 
 Drinkwater v. Drinkwater, 713, 719 
 
 Drisoo)l V. Marshall, 124 
 
 Driskell v. Hawks, 460 
 
 Driver i\ Cholmondeley, 46 
 
 Drought V. Eustace, 285 
 
 V. Jones, 99, 488 
 
 Drimimond v. Tracey, 407, 411, 519 
 
 Drury v. Conner, 151 
 
 V. Macnamara, 495 
 
 V. Man, 662 
 
 V. Tremont Improvement 
 
 Co. 645 
 
 Dryden v. Frost, 683, 756, 767 
 
 Drysdale v. Mace, 17, 19, 213, 332, 338, 
 
 369, 775 
 Drysdale's Appeal, 688 
 
 Dublin, Archbishop of, v. Trimles- 
 
 ton. Lord, _ 486 
 
 Dubois V. Baum, 268 
 
 V. Del. & Hud. Canal Co. 57, 
 
 165 
 
 V. Hall, 671 
 
 V. Kelly, 126 
 
 Dubs V. Dubs, 457 
 
 Duck i,. Braddyll, 669 
 
 Du(-kenfield v. Wliichcott, 2 
 
 Duckle V. Baines, !l94 
 
 DuddcU i). Sipipson, 20, 23 
 
 Dudgeon v. Thomson, 4 7 
 
 Dudley v. Bachelder, 701 
 
xcu 
 
 INDEX TO CASES CITED OE INTKODUCED. 
 
 Dudley V. Bosworth, 
 
 702, 703 
 
 V. Dudley, 
 
 624 
 
 V. Foliott, 
 
 600 
 
 V. Little, 
 
 11 
 
 V. Sumner, 
 
 728 
 
 V. Wells, 
 
 569 
 
 Duffell V. Wilson, 
 
 298 
 
 Duffield V. Elwes, 
 
 101 
 
 V. Scott, 
 
 612 
 
 Duffy V. Calvert, 
 
 658, 661 
 
 V. Ins. Co. 
 
 713 
 
 Dugan V. Carlton, 
 
 330 
 
 V. Gittings, 
 
 482 
 
 Dugdale v. Robertson, 
 
 m, 743 
 
 Duliine v. Young, 
 
 714 
 
 Du Hourraelin v. Sheldon, 
 
 685 
 
 Duke V. Burnett, 
 
 17. 341 
 
 Dumars v. Miller, 
 
 g58, 611 
 
 Dumbell, ex parte, 
 
 687, 688 
 
 Dumoncel v. Dumoncel, 
 
 685 
 
 Duubar v. Tredennick, 253, 
 
 694, 69«, 
 
 
 749 
 
 Duncan v. Baird, 1 22 
 
 , 153, 236 
 
 V. Blair, 
 
 127 
 
 V. Cai'e, 
 
 51, 344 
 
 V. Charles, 
 
 400 
 
 V. Dodd, 
 
 114 
 
 V. Johnson, 
 
 753 
 
 i'. Tanner, 
 
 361 
 
 V. Thomas, 
 
 133 
 
 Dunch ;'. Kent, 
 
 658, 660 
 
 Dnncombe v. Mayer, 
 
 445 n. 
 
 Duncuft V. Albrecht, 
 
 127, 210 
 
 Dundas «. Blake, 
 
 485 
 
 v. Dutens, 
 
 718 
 
 Dunham v. Day, 
 
 728 
 
 V. Minard, 
 
 106 
 
 Dunkel v. Hunter, 
 
 251 
 
 Dunklue v. Wilton Railroad Co. 24 n., 
 
 58 
 
 Dunlap V. Burnett, 681, 682 
 
 V. Dunlap, 713 
 
 V. Mitchell, 206, 687, 688 
 
 V. Stetson, 175 
 
 Dunlop V. Burnett, 671 
 
 Dunman, ex parte, 60 
 
 Dunn V. Moore, , 151 
 
 u. White, 5 73 
 
 Dunne v. Doran, 617, 656 
 
 V. Dunne, , 709 
 
 V. Ferguson, 125, 126 
 
 Dunnica u. Sharp, 358 
 
 Dunster v. Glengall, Lord, 380, 527 
 
 Dupmt i>. Payton, 2 
 
 Dupreo V. M'Donald, 159, 168, 171 
 
 Durant i'. Ashmore, 464 
 
 t. Bacot, ICO 
 
 Durbin v. Garrard, 611 
 
 Durel V. Boisblanc, 491 
 
 Durell u. Pritchard, 234 
 
 Durham, Bishop of, ex parte, 90 
 
 Dean and Chap, of, ex 
 
 parte, 637 
 
 Earl of, u. Legard, 31,324 
 Durkee v. Vermont Central Rail- 
 road Co. 47, 130 
 Durrett v. Simpson,. 324 
 Dursley, Lord, v. Fitzhardinge, 748 
 Dusenbury v. Ellis, 44 
 Dustin V. Newcomer, 361, 611, 647 
 Dutch V. Warren, 236 
 Dutch Church, &c, v. Mott, 264 
 D'Utricht v. JMelehor, 549 
 Dutton V. Warschauer, 762 
 DuvaU V. Bibb, 671, 681, 682 
 V. Craig, 600, 611 
 r. Myers, 152, 217 
 Duvals V. Ross, 325 
 Du Vigier v. Lee, 487, 489 
 Dvviggins V. Shaw, 239 
 Dvvight ». Cutler, 179,386 
 V. Pomeroy, 151, 159 
 Dye V. Montague, 241 
 Dyer v. Clark, 698 
 i). Dorsey, 361 
 V. Dyer, 701, 703, 704 
 V. Hargrave, 262, 302, 331, 332, 
 632 
 V. Homer, 381, 712, 713 
 U.Martin, 6 71,680 
 V. Potter, 647 
 V. Piilteney, 182 
 y. Sandford, 124, 492 
 Dvett B. Pendleton, 600 
 Dyke ii. Svlvester, 392 
 Dykes u. Blake, 24, 30, 31, 320 
 V. Taylor, 110, 405 n. 
 Dyson v. Hornby, 628 
 
 E. 
 
 Eads V. Williams, 
 
 
 266 
 
 Easer v. Commonwealth, 
 
 
 482 
 
 Kakin v. Herbert, 
 
 101, 
 
 292 
 
 Fames v. Savage, 
 
 236, 
 
 241 
 
 Earl V. Baxter, 
 
 370 
 
 437 
 
 V. ]3ryan, 
 
 324 
 
 325 
 
 Earle v. Bickford, 
 
 251 
 
 549 
 
 V. De Witt, 158, 
 
 251, 326 
 
 549 
 
 u. Hopwood, 
 
 
 357 
 
 V. McDowell, 
 
 
 482 
 
 V. Middleton, 
 
 
 611 
 
 Earl's Trust, in, re, 
 
 
 184 
 
INDEX TO CASES CITED OR INTKODUCED. 
 
 XClll 
 
 Early v. Garrett, 249, 333, 385, 549, 
 
 553 
 V. Smith, 52 
 
 Eastabrook v. Smith, 600, 611 
 
 East Anglian Ry. Co. v. Eastern 
 
 Counties Ry. Co. 76 
 
 East Boston Freight Railroad Co. 
 
 V. Easterij Railroad Co. 76 
 
 Eastburn v. Kirk, 646 
 
 Eastern Co. Ry. Co. in re, 88, 89 
 
 V. Tuffnell, 91 
 
 East Grimstead case, 722, 755 
 
 East India Co. v. Clavell, 720 
 
 V. Donald, 220 
 
 V. Hcnsley, 47 
 
 V. Vincent, 744 
 
 Eastman v. Amoskeag Manuf. Co. 58 
 
 V. Plumer, 161, 211, 236, 244, 
 
 253, 260, 263, 266, 273, 274 
 
 Eastwood V. Lever, 596 
 
 Eaton V. Lyon, 169 
 
 V. Sanxter, 177, 521, 563, 664 
 
 .V. Whitaker, 151, 152 
 
 V. Whiting, 396, 525 
 
 Eberhart v. Gilchrist, 120 
 
 Ebner v. Goundle, 727 
 
 Ebrand v. Dancer, 706 
 
 Eccles V. Cheyne, . 225 
 
 Ecclesiastical Commis. v. London 
 
 and S. W. Ry. Co. 73 n. 
 
 Ecclesiastical Commission v. Sligo, 
 
 Lord, 489 
 
 Echliff' V. Baldwin, 229 
 
 Eddels V. Johnson, 656 n. 
 
 Edden v. Read, 237 
 
 Eddowes, re, 70 
 
 Eddy V. Tiaver, 683 
 
 Edelsten v. Edelsten, 646 
 
 Eden v. Blake, 15 
 
 Eden, Mary, m re, 473 
 
 Eden, Sir John, v. Bute, Lord, 169 
 
 Edgell V. Day, 50 
 
 V. Kdgell, 639 
 
 V. Lowell, 714 
 
 Edgerly v. Emcr?on, 161 
 
 Edgerton v. Peckham, 175 
 
 Edgeworth v. Edgeworth, lll,-405 n. 
 
 Edinburgh, &c. Ry. Co. v. Leven, 80 
 
 V. Philip, 76 
 
 Edlin u. Batalay, 74 7 
 
 Edman v. Allen, 258 
 
 Edmonds v. Crenshaw, 63 
 
 V. Goodwin, 253 
 
 2,-. Mit'ett, 188 n. 
 
 V. Peake, 71 
 
 Edmunds's Appeal, 160 
 
 Edrington v. Harper, 199 
 
 Ed son V. Munsell, 
 
 492 
 
 Edwards, ex parte. 
 
 741 
 
 V. Banksmith, 
 
 758 
 
 V. Bohannon, 
 
 683 
 
 V. Brinker, 
 
 728 
 
 V. Brown, 
 
 277 
 
 V. Burt, 
 
 276, 277 
 
 V. Crenshaw, 
 
 758 
 
 V. Edwards, 
 
 701, 702, 706 
 
 V. Fashion, 
 
 698 
 
 V. Gd. Jn. Ry. Co. 75 
 
 V. Grand Trunk Railroad, 
 
 123 
 
 V. Harvey, 71, 404, 646, 647 
 
 V. Heather, 273 
 
 u. Hodding, 50 
 
 0. Jones, " 719 
 
 V. M'Leay, 244, 246, 254, 
 
 553 
 
 V. Meyrick, 690, 693 
 
 V. Morris, 749 
 
 V. Peake, 53 
 
 V. Richards, 161 
 
 Edwards-Wood v. Marjoribanks, 21, 
 
 aiO, 311, 335 
 
 Edwards's Estate, in re, 199 
 
 Egbert V. Butter, 152 
 
 Egerton v. Brownlow, Earl, 588 
 
 V. Jones, 350 
 
 V. Matthews, 129 
 
 Eggington v. Flavel, 101 
 
 <iggle>ton V. New York & Harlem 
 
 R. R. 124 
 
 Egremont. Lord, in re, 83 
 
 Eichelberger v. Burnitz, 464 n. 
 
 Ekins w. Tresham, 2, 4 
 
 Ela V. Card, 611 
 
 V. Pennock, 124 
 
 Eland v. Baker, 390 n., 692 
 
 V. Eland, 660, 661, 775 
 
 •Elder V. Elder, 160 
 
 V. Hood, 645 
 
 Eldridge v. Porter, 352 
 
 Eliason r. Henshaw, 132 
 
 Ellard v. Cooper, 679 
 
 V. Llandaff, Lord, 211, 213, 355 
 
 EUerlhorpe, in re, 398 
 
 Ellicott V. Welch, 680 
 
 EUinger v. Crowl, 714 
 
 Elliot, in re, 78 
 
 V. Brown, 698 
 
 0. Edwards, 400 n., 674, 680 
 
 0. Elliot, 70;), 704 
 
 V. Lice, 208, 686 
 
 V. Thompson, , 611 
 
 Elliott J'. Armstrong, 701, 702 
 
 V. Giese, 158 
 
XCIV 
 
 INDEX TO CASES CITED OR INTRODUCED. 
 
 Elliott V. Hart, 
 
 706 
 
 V. Horn, 
 
 714 
 
 !'. Jlerryman, 
 
 658, 660, 661, 
 
 
 668, 669 
 
 V. Pearsoll, 
 
 464 n. 
 
 V. Sallee, 
 
 24 n., 58 
 
 r. Thompson, 
 
 549, 611 
 
 V. Turner, 
 
 88 
 
 Ellis I'. Ariiison, 
 
 374 
 
 V. Burden, 
 
 213, 273 
 
 V. Colman, 
 
 76 
 
 V. Deadman, 
 
 130 
 
 V. Ellis, 
 
 151 
 
 V. Hafkins, 
 
 7 
 
 V. Higijins, 
 
 174 
 
 r. O'Neill, 
 
 493 
 
 I'. Temple, 
 
 671 
 
 V. Thompson, 
 
 271 
 
 V. Welch, 
 
 600, 602 
 
 V. Woods, 
 
 789 
 
 Ellison r. Brighara, 
 
 126 
 
 Ellison's Estate, in re, 
 
 87 
 
 Ells V. Tousley, 
 
 75 o 
 
 Elmendorf v. Lansing, 
 
 63 
 
 V. Taylor, 
 
 484 
 
 Elmore v. Kingscote, 
 
 134 
 
 Else V. Barnard, 
 
 10,45, 96, 216 
 
 Elsey V. Lutyens, 
 
 729 
 
 Elton V. Elton, 
 
 443 
 
 Elwell v. Shaw, 
 
 57 
 
 Elwcs, In re, 
 
 556 
 
 V. Elwes, 
 
 17a 
 
 Elworthy u. Billing, 
 
 99 
 
 Ely V. Adams, 
 
 168 
 
 V. Scofield, 
 
 753 
 
 V. Wilcox, 
 
 727, 762 
 
 Ely, Dean of, c. Bliss, 490 
 
 Ely, Dean and Chapter of, v. Cash, 476, 
 
 490 
 Elysville Manuf. Co. v. Okisko Co. 159 
 Emanuel v. Dane, 174- 
 
 Emerson u. County of Washing- 
 ton, 251, 549 
 V. Wiley, 25 
 Emery v. Chase, 158 
 V. Grocook, 390 n., 390, 405 n.. 
 418, 650 
 V. Pickering, 352 
 u. Vinall, 714 
 V. Wasc, 206, 275, 287 
 Emmerson v. Heelis, 42, 126, 139, 144, 
 145, 147, 319 
 Emmet u. Dcwhurst, 165 
 Emmons c. Littlefield, 645 
 c. Murray, 762 
 Erauss V. Smith, ' 190, 462, 680 
 Enders u. Williams, 714 
 
 Engel V. Fitch, 358, 360, 361 
 
 English I'. Russell, 671 
 
 Ennis v. Leach, 69 
 
 Enos )i. Hunter, 701, 702 
 
 Enraght v. Fitzgerald, 628 
 
 Ensign v. Briggs, 698 
 
 Ensley v. Balentin«, 701, 703- 
 
 Entz V. Mills, 42 
 
 Episcopal Church v. Wiley, 145, 147 
 
 Ernest v. Croysdill, 256 
 
 );. Vivian, 253 
 
 Errington v. Annesley, 210 
 
 D.Rorke, 522 n. 
 
 Erskine v. Plummer, 123, 124, 126 
 
 V. Townsend, 1 74 
 
 Erwin v. Parham, 273 
 
 V. Saunders, 161 
 
 Esdaile v. Oxenham, 564 
 
 V. Stephenson, 264, 312, 350, 
 
 633, 634, 635 
 
 Esdell V. Buchanan, 486 
 
 Eshleman v. Lewis, 70S 
 
 Eskridge v. McClure, 671, 675, 676, 
 
 680 
 
 Esling u. Williams, 4 93 
 
 Espey V. Lake, 24 6 
 
 Espin M. Pemberton, 757 
 
 Espy V. Anderson, 165 
 
 Esron ii. Nicholas, 209 
 
 Essex V. Baugh, 730 
 
 V. Essex, 188 n., 699 n. 
 
 Estabrook v. Smith, 606, 610 
 
 Estofte V. Vaughan, 440 
 
 Esty V. Clark, 463 
 
 Eton College, ex parte, 82, 90 
 
 Etty V. Bridges, 378, 
 
 Eubank v. Hampton, 324 
 
 V. Boston, 683 
 
 Evan V. Avon, Corporation of, 145 
 
 Evans v. Ashley, 148 
 
 V. Bicknell, 743 
 
 V. Brown, 275 
 
 V. Collins, 4 
 
 II. Edmonds, 5 
 
 V. Elliot, 181 
 
 u. Ellis, 690 
 
 « V. Evans, 712 n. 
 
 V. Goodlet, 671, 675 
 
 V. Griffith, 276 
 
 V. Jackson, 396 
 
 u. Jones, 469, 728, 743, 761 
 
 t. Kingsbevry, 206, 299, 316 
 
 V. Llewellyn, 245, 27a 
 
 V. McGlasson, 728 
 
 V. Prothero, 56, 130, 131, 572 
 
 V. Roberts, 125, 126, 127 
 
 II. Robins, 31, 763 
 
INDEX TO CASES CITED OR INTRODUCED. 
 
 XCV 
 
 Evans v. Tweedy, 
 
 671 
 
 V. Vaughan, 
 
 602 
 
 V. Wells, 
 
 57 
 
 Evans's Estate, 
 
 701 
 
 Eveleth v. Scribner, 
 
 240 
 
 V. Wilson, 
 
 159, 169 
 
 Evelyn v. Evelyn, 
 
 195 
 
 V. Terapler, 
 
 714, 715 
 
 Eversfield i>. Mid. Sussex Railway 
 
 Company, 73 
 Everts v. Agnes, 152 
 Evertson u. BootJi, 680 
 V. Tappen, 688 
 •Ewart V. Cochrane, 24 n., 58, 743 
 Ewbank v. Poston, 680, 681 n. 
 Ewer V. Corbet, 668, 669 
 Ewing V. Beauohamp, 681 
 V. Handley, 747 
 V. Higby, 61 
 V. Osbaldeston, 672 
 V. Ters, 145 
 V. Thompson, 358 
 Exeter, Marquis of, v. Exeter, Mar- 
 chioness of, 172 
 Evler V. Crabbs, 679 
 Eyles V. Ellis, 49 
 Eyre v. Dolphin, 728, 790 
 V. Dunsford, 4 
 V. Iveson, 149 
 u. McDonnell, 252 
 V. Popham, 149, 149. n. 
 V. Potter, 273 
 V. Sanders, 498, 499 
 Eyre's Estates, in re, 106 
 Eyston v. Simon ds, 218, 264 
 Eyton V. Dicken, 395 
 
 Eabens v. Mercantile Bank, 563 
 
 Fagan v. Newson, 2 
 
 Eagen v. Davison, 361, 573 
 
 Fagg's case, 741 
 
 Fagg V. Dobie, 38 
 Fain v. Ayers, 438, 443, 453 n., 613 
 
 Faine v. Brown, 213 
 
 Fair v. Stevenot, 762 
 
 Fairbanks v. Williamson, 556, 577 
 
 Fairbrother v. Shaw, 152 
 
 Fairchild v. Hunt, 646 
 Fairfield v. Birch, 716 n., 816 
 
 Fairhurst i'. Lewis, 701 
 
 Fairley v. Tuck, 458 
 
 Falconer v. Clark, 326, 549 
 
 V. Griffiths, 326, 549 
 
 Falke K. Gray, ,210 
 
 Falkner v. Eq. Rev. Society, 39, 66, 
 386, 405 n. 
 V. Grace, 386 
 
 Fall River National Bank v. Buf- 
 
 fington, 743 
 
 Fall River Whaling Co. v. Bor- 
 den, 127, 698, 699 n. 
 Falls V. Carpenter, 257, 273 
 V. Gaither, 48 
 Falmouth v. Roberts, 159 
 Falmouth, Lord, v. Thomas, 125, 127 
 Fane «. Spencer, 369 
 Farebrother v. Gibson, 16, 311, 331 
 V. Prattent, 51 
 V. Simmons, 147 
 V. Welchman, 52, 53, 222 
 V. Woodhouse, 196 
 Fargo V. Ladd, 713 
 Farguson i'. Maitland, 275 
 Farhall v. Farhall, 658 
 Farley v. Boxham, 457 
 V. Briant, [612 
 V. Palmer, 206, 217 
 Farlow v. Weildon, 115 
 Farmer v. Dean, 216 
 V. Robinson, 146 
 V. Sewall, 642 
 V. Wardell, 276 
 Farmers' Bank v. Douglass, 714 
 Farmers' &o. Bank v. Bronson, 762 
 Farmers' & Mechanics' Bank v. 
 
 Galbraith, 324 
 
 Farmers' & Planters' Bank v. Mar- 
 tin, 106 
 Farnam v. Brooks, 254, 273, 275, 484, 
 
 689 
 
 Farnham v. Ross, IGo 
 
 Farnsworth v. Child, 728, 762 
 
 V. Taylor, 25 
 
 Farquhar v. Farley, 640 
 
 Farr v. Newman, 668 
 
 Farrand v. Marshall, 59 
 
 Farrar v. Farrar, 167 
 
 V. Stackpole, 33 
 
 Farrer v. Billing, 374 
 
 V. Hutchinson, 445 n. 
 
 V. Nightingale, 236, 298 
 
 n. Winterton, Lord, 190, 654 
 
 Farringer v. Ramsey, 701, 702 
 
 Farrington i'. Barr," 645, 702 
 
 Farris v. Walker, 33 
 
 Farrow v. Rees, 444, 748, 766, 767 
 
 Farwell u. Mather, 134 
 
 V. Seale, 381 
 
 I'. Sturdivant, 641 
 
 Fashott V. Reed, 627 
 
 Fatheree v. Fletcher,' 703 
 
XCVl 
 
 INDEX TO CASES CITED OR INTRODUCED. 
 
 Faure v. Martin, 324 
 
 Fausler v. Jones, 701 
 
 Fausset v. Carpenter, 743 
 
 Faust V. Smith, 762 
 
 Fawcett w. Wood i, 611 
 
 Fawell V. Heelis, 675, 682 
 
 Fawkes v. Lamb, 48, 56 
 
 Fay V. Valentine, 7, 743 
 Fealherstonhaugh t>. Fenwick, 219, 699 
 
 Feetor, ex parte, 55, 65 
 
 V. Philpott, 546, 683 
 
 Fee V. Cobine, 199 
 
 V. Fee, 254 
 
 Feemster v. May, 246, 549, 573 
 
 Feilden v. Slater, 7, 596, 763 
 
 Fell V. Chamberlain, 150, 159, 703 
 
 Fellowes v. Clay, 490, 491 
 V. Gwydyr, Lord, 219, 220 
 
 Fellows V. Heermans, 742 
 
 Fencott v. Clarke, 445 
 
 Fenderson v. Owen, 169 
 
 Fenly v. Stewart, ' 129 
 
 Fennelly v. Andersen, 206, 217, 337 
 
 Fenner v. Taylor, 719 
 
 V. Tucker, 11 
 
 Fenno v. Sayre, G72, 753 
 Fenton t'. Browne, 28,211,302,331 
 
 Fenwick v. Bulman, 231 
 
 V. Macey, 486 
 
 V. Potts, 757 
 
 Fereday v. Wightwick, 699 n. 
 
 Feret v. Hill, 3 n. 
 
 Fergus v. Gore, 116 
 
 Ferguson v. Franklin, 98 
 
 V. London & Brighton 
 
 Ey. Co. 73 
 
 V. Tadman, 644 
 
 V. Williamson, 703 
 
 V. Wilson, 234, 646 
 
 Fermor's case, 752 
 
 Fernander ii. Dunn, 61 1 
 
 Feme v. Bullock, 152 
 
 Ferrall u. Boyle, 197 
 
 Ferrars v. Cherry, 720, 753, 775 
 
 Ferrier v. Peacock, 298, 780 
 
 Ferrers i: Fermor, 619 
 
 Ferry c. Ferry, 640, 641 
 
 Ferson v. Sanger, 233, 243, 250, 253, 
 
 484 
 
 Fessenden v. Mussey, 134 
 
 Fewell V. Collins, 482 
 
 Fewster v. Turner, 25, 233 
 Ffooks v. South Western Ky. Co. 86, 
 
 376 
 
 Field V. Arrowsmith, 687, 688 
 
 V. Boland, 129, 145, 749 
 
 0. Dickinson, 482 
 
 Field V. Lonsdale, 
 
 706 
 
 V. Moore, 
 
 472 
 
 V. Schieffelin, 
 
 668, 669 
 
 V. Wilson, 
 
 486 
 
 Fielden v. Slater, 
 
 765 
 
 Fielder v. Higginson, 
 
 107, 649 
 
 V. Studley, 
 
 172. 609 
 
 Fife V. Clayton, 16, 159, 232, 375, 652 
 
 Fifield V. Gaston, 714 
 
 Filder i>. Bellingliam, 119 
 Fildes V. Hooker, 350, 367 n., 382 
 
 Fillingham v. Bromley, 403, 405 n. 
 
 Fillman v. Divers, 708 
 
 Finaciine v. Kearney, 139, 151 
 
 Finch V. Finch, 704 
 
 V. Newnham, 759 
 V. Shaw, 444, 757, 766, 795, 798 
 
 V. Winchelsea, Lord, 517 
 
 Findley v. Cooley, 713 
 
 Fingal or Bengal, Lord, v. Ross, 154 
 
 Finley v. Lvnch, 264 
 
 Fiott V. Mullins, 443 n. 
 
 Firth V. Greenwood, 262 
 
 Fish, ex parte, 473 
 
 V. Howland, 675, 676 
 
 V. Hubbard, 169 
 
 D. Miller, 687 
 
 Fishe V. Rogers, 562 
 
 Fisher v. Barry, 386, 389 n. 
 
 V. Bridges, 356 
 
 V. Deibert, 160 
 
 V. Di.\on, 33 
 
 V. Fields, 700 
 
 V. Hill, 463 
 
 u. Johnson, 680, 683 
 
 V. Kay, 306 
 
 V. Mellen, 5 
 
 V. Moon, 124 
 
 V. Smith, 26 
 
 t. Wilson, 126 
 
 u. Worrall, 211 
 
 Fisk V. Fisk, 457 
 
 V. Sarber, 688 
 Fiske V. McGregory, 126, 147, 161 
 
 Fitch V. Casey, 573 
 
 e. Fitch, 276 
 
 Fitzgerald v. Fauconberge, 756 
 
 V. Foster, 9 n. 
 
 V. Lane, 111 
 
 V. M'Cullagh, 221 
 
 Fitzhugh V. Dennington, 614 n. 
 
 V. McPherson, 640 
 
 Fitzmaurice p. Baylcy, 134, 146 
 
 Fitzsimmons v. Allen, 151 
 
 V. Joslyn, 2, 250 
 
 I). Ogden, 737, 787 
 
 Flack V. Downing College, 562 
 
INBEX TO CASES CITED OB INTRODUCED. 
 
 XCVll 
 
 Flack V. Neill, 786 
 
 Flagg V. Mann (14 Pick.), 149, 199 
 
 V. Mann (2 Sumner), 199, 728, 
 
 753, 765, 762, 765 
 
 Fleeger v. Poole, 727 
 
 Fleetwood, ex parte, 543 
 
 V. Green, 343, 353, 652 
 
 Fleetwood's, Sir Gerard, case, 520 
 
 Fleming v. Buchanan, 656 
 
 V. Burgin, 755 
 
 V. Culbert, 484 
 
 V. Gilbert, 158 
 
 V. Griswold, 482 
 
 V. Townsend, 719 
 
 Flemings v. Willis, 172 
 
 Fletcher v. Button, 358, 361, 573 
 
 t'. Gt. West. Ry. Co. 78 
 
 V. Rogers, 225 
 
 V. "Sidley, 706 
 
 V. State Capital Bank, 601 
 
 V. Wilson, 260 
 
 Fleureau v. Thornhill, 355, 358, 359, 
 
 360, 361, 362, 640 
 
 Flight V. Barton, 214 
 
 V. Bentley, 181 
 
 u. BoUand, 209,217 
 
 V. Booth, 23, 26, 30, 3l' 346, 347 
 
 V. Gray, ' 222 
 
 V. Robinson, 785 
 
 V. Thomas, " 491 
 
 Flinn v. Calow, 181 
 
 Flint V. Brandon, 210 
 
 V. Sheldon, 174 
 
 V. Steadman, 611 
 
 V. Woodin, 10, 44, 214, 343 
 
 Flood V. Finlay, 160 
 
 Flower v. Hartopp, 26, 107, 405 n. 
 
 V. Walker, 422 
 
 Floyd V. Bethill, 327 
 
 V. Buckland, 151 
 
 Floyer i'. Sherard, 275 
 
 Fludyer v. Cocker, 342, 629, 630, 649 
 
 Flureau v. Thornhill, 218, 237 
 
 Flynt V. Arnold, 727, 728, 753 
 
 Fobes V. Cantfield, 640 
 
 Fohaine's, Lady, case, 175 
 
 Foley V. Hill, 253, 790 
 
 V; Percival, 177 
 
 V. Wyeth, 59 
 
 Foley, Lady E., v. Fletcher, 180 
 
 Foligno V. Martin, 102 n., 255 
 
 Follansbe v. Kilbreth, 708 
 
 Folliard v. Wallace, 600 
 
 Fonda v. Sage, 1 75 
 
 Fooks, in re, 86 
 
 V. Wilts. &c. Ry. Co. 85 
 
 Foord tt. Wilson, 606 
 
 Foot V. Cobb, 714 
 V. New Haven & Northamp- 
 ton R. R. Co. 123, 124 
 V. Selway, 159 
 Foote D. Burnet, 577,611 
 Footman )). Pendergrass, 714 
 Forbes v. Peacock, 648, 660, 6«1 
 Forbes, Lord, v. Deniston, 728 
 Forbush v. Goodwin, 161 
 Force v. Dutcher, ' 175 
 Ford V. Campfield, 158 
 V. Compton, 131 
 V. Flint, 479, 493 
 V. Heeley, 67 
 V. Hitchcock, 212 
 V. Holden, 689 
 V. Lewis, " 701 
 V. Peering, 433, 445 n. 
 V. Philpot, 518 
 V. Ryan, 659, 660 
 V. Stuart, 716 
 i). White, 728, 729, 753, 761 
 V. Yates, • 159 
 Fordyce v. Ford, 261, 304, 331, 346 
 Forniquet v. Forstall, 231 
 Forrester v. Leigh, Lord, 699 
 Forshall y. Coles, 521,547,816 
 Forshaw v. Higginson, 62 
 Forster v. Hale, 137, 154, 156, 700 
 V. Haggart, 17, 259 
 V. Rowland, 132, 136, 138 
 V. Thompson, 485 
 Forster's Settlement, in re, 499 
 Forsyth v. Bristowe, 479, 489 
 V. Clark, 701 
 Fort V. Burch, 755, 762 
 . w. Clarke, 389 n., 405 n., 419 
 Forte V. Vine, 600 
 Forteblow v. Shirley, 312, 630 
 Fortescue v. M'Kone, 487 
 Forth u. Norfolk, Duke of, 518 
 Fosbrooke v. Balguy, 708, 711 
 Foscue V. Foscue, 484 
 Foss V. Crisp, 685 
 Possler V. Schriber, 784 
 Foster, ex parte, , 523 
 in re, 560 
 'u. Bigelow, 743 
 V. Blackstone, 378, 519. 
 V. Briggs, 743 
 V. Brq-vfning, 124 
 v. Charles, 4 
 V. Deacon, 644 
 ' I'. Foster, 434, 706 
 !i. Hall, 785, 786 
 V. Handley, 617 
 V. Hargreaves, 378 
 
XCVlll 
 
 INDEX TO CASES CITED OR INTRODUCED. 
 
 Foster v. Hoggart, 339 
 
 V. M'Mahon, 621 
 
 V. Mapes, 600 
 
 V. Roberts, 279, 286, 287 n. 
 
 V. Thompson, 611 
 
 V. Trustees, &c. 676, 701 
 
 V. Walton, 714 
 
 Fotherby v. Metrop. Railway Co. 86 
 
 Foule V. Welsh, 600 
 
 Fountain v. Cook, 619 
 
 V. Toung, 786 
 
 Fourdrin v. Gowdey, 685 
 
 Fournier v. Edwards, 230 
 
 Fowle V. Freeman, 129, 131, 141 
 
 Fowler V. Bayldon, 669 n. 
 
 u. Fowler, 171 
 
 V. Lightburne, 232, 440 
 
 V. Polling, 677, 600, 610 
 
 V. Rust, 671, 675 
 
 V. Shearer, 67, 458 
 
 V. Stoneum, 714 
 
 V. Ward, 231 
 
 V. Willoughby, 192 
 
 Fox V. Birch, 230 
 
 V. Chester, Bishop of, 367 
 
 V. Mackreth, 245, 687, 695 
 
 V. Russell, 291 
 
 V. Wright, 285 
 
 Foxcraft v. Lister, 151 
 
 Foxlowe V. Amcoats, 268, 271 
 
 Frail u. Ellis, 675,776 
 
 Frame v. Dawson, 152 
 
 Francestown v. Deering, 701 
 
 Franchot v. Leach, * 165, 361 
 
 Francis v. Church, 1 20 
 
 V. Grover, 479, 485, 489 
 
 V. Hazlerigg, 675, 6,76 
 
 V. Wigzell, 686 
 
 Francklyn, ex parte, 82 
 
 Frank u. Harrington, 126 
 
 Franklin v. Brownlow, Lord, 176, 397 
 
 V. Long, 168, 165, 247 
 
 V. Miller, 258 
 
 V. Waters, 254 
 
 Franklinski v. Ball, 234 
 
 Franklin v. Lamond, 42, 53, 241 
 
 Franks v. Bollans, 688 
 
 Fraser v. Wood, 265 
 
 Frazer v. Jones, 738, 794, 798 
 
 «. Thompson, 707 
 
 Frazier v. Hall, » 114 
 
 Frear v. Hardenburg, 125, 126 
 
 Frederick v. Campbell, 324 
 
 Freebody v. Perry, 230 
 
 Freeland v. Pearson, 386, 397 
 
 V. South worth, 33 
 
 Freeman v. Baker, 4, 333 
 
 Freeman v. Cooke, 743 
 
 V. Eatman, 714 
 
 V. Foster, 606 
 
 V. Kelly, 701, 703, 708 
 
 V. Lewis, 713 
 
 V. Mebane, 683 
 
 V. Pope, 714 
 
 Freeport v. Bartol, 138, 140, 161 
 
 Freer v. Hesse, 30, 315, 396, 404, 405 n., 
 
 497, 531, 581 n., 622, 624, 647, 
 
 648, 660, 753 
 
 V. Rimner, 14 
 
 Freetly v. Barnhart, 337 
 
 Freme v. Wright, 337 
 
 French v. French, 706 n., 714 
 
 V. Gray, 727, 728 
 
 V. Grindle, - 642 
 
 V. Spencer, 556 
 
 V. Sturdivant, 174 
 
 Frend v. Buckley, 869 
 
 Frere v. Moore, 682, 739 
 
 Frewen v. Phillips, 491 
 
 V. Relfe, 205 
 
 Frink v. M'Keoun, 287 
 
 Fripp V. Chard Ry. Co. 341 
 
 u. Fripp, 245, 275 
 
 Frisbie v. Hofihagle, 549 
 
 V. MeCarty, 714 
 
 Frogley v. Lovelace, Lord, 124 
 
 Frost V. Beavan, 208 
 
 V. Beekman, 177, 737, 738, 749, 
 
 753, 761, 775, 789, 790 
 
 V. Blanchard, 56 
 
 V. Brunson, 264, 349 
 
 V. Earnest, 602 
 
 V. Raymond, 549, 608 
 
 Fruhling v. Schroeder, 237, 640 
 
 Fry !). Fry, 62, 216 
 
 V. Noble, 206, 457 
 
 V. Porter, 756 
 
 Frye i>. Shepler, 166 
 
 Fryer, in re, 667 
 
 V. Flood, 705 n. 
 
 Fuet V. Hill, 250 
 
 Fugate V. Hanford, 139 
 
 Fuhr V. Dean, 1 24 
 
 Fulford u. Fulford, 463 
 
 FuUagar v. Clark, 352 
 
 Fullenwider v. Roberts, 713 
 
 Fuller, ex parte, 727 
 
 a. Abrahams, 11 
 
 (/. Benett, 757 
 
 V. Hovey, 268 
 
 V. Hubbard, 7, 241 
 
 V. Perkins, 211 
 
 u. Redman, 528 n. 
 
 V. Williams, 241 
 
INDEX TO CASES CITED OR INTRODUCED. 
 
 XCIX 
 
 Fuller V. Wilson, 2, 4, 56, 248 
 
 V. Wright, 601 
 
 FuUerton v. McCurdy, 232 
 
 Fulton V. Moore, 148 
 
 Fulton Bank v. New York & Shar- 
 on Canal Co. 756 
 Funk V. Voneida, 610 
 Furniss v. Ferguson, 6fl 
 V. Midland Ry. Co. 73 
 Fursdon v. Clogg, 482 
 Fury V. Smith, 728, 732 
 Fyson ». Kitton, 138, 140 
 
 G. 
 
 Gabee v. Sneed, 671 
 
 Gabriel v. Smith, 34, 35 
 Gaby V. Driver, 44, 57, 639 
 
 Gachenour v. Mowry, 556 
 
 GafBeld v. Hapgood, 33 
 Gage V. Newmarket, &c. Ey. Co. 75, 
 
 76 
 
 Gaillard u. Porcher, 172 
 
 Gaines v. Chew, 701 
 
 Gainsford v. Griffith, 608 
 
 Gait V. Osbaldeston, 793 
 
 Galbraith v. Galbraith, 324 
 
 Gale V. Best, 240 
 
 V. Dean, 361 
 
 V. Gale, 463 
 
 K.Nixon, 129 
 
 V. Tappan, 563 
 
 Gallagher v. Brunei, 4 
 
 V. Williamson, 786 
 
 Gallatin v. Cunningham, 687, 787 
 
 V. Erwin, 790 
 
 Galliers v. Allen, 85, i89 
 
 Gallion v. McCasliri, 753 
 
 Galloway v. Barr, 647 
 
 V. Finley, 671 
 
 V. Hamilton, 671, 679 
 
 Gait V. Galloway, 563 
 
 Galton V. Emuss, 11, 117 n., 118, 700 
 
 V. Hancock, 184 
 
 Gammon !>. Howe, 40 
 
 Gann v. Chester, 682, 683 
 
 Gans V. Kenshaw, 213, 312, 344, 386, 
 
 402 
 
 Gape u. Han'dley, 170 
 
 Garber v. Henry, 728 
 
 Garbrand v. Allen, 686 
 
 Gardiner, in re, 748 
 
 V. Blessinton, 733 
 
 V. Corson, 239 
 
 V. Morse, 11 
 
 V. Otis, 714 
 
 Gardiner Bank v. Wheaton, 701 
 
 Gardner, ex parte, 265 
 
 D. Astor, 617 
 
 V. Booth, 714 
 
 V. Char. Cross Ry. Co. 81 
 
 V. Cole, 712, 714 
 
 V. Gardner, 658, 660, 661 
 
 u. Niles, 611 
 
 V. Ogden, 201 
 
 V. Schermerhorn, 116, 119, 
 
 120 
 
 V. Townshend, Lord, 709 
 
 V. Troy, 549 
 
 V. Troy, Mayor, &c. of, 251 
 
 Gardom, ex parte, 129 
 
 Garfield v. Hatmaker, 706 
 
 V. Williams, 577, 601 
 
 Garland v. Lane, 566 
 
 V. Stewart, 44 
 
 Garlick v. Lawson, 225 
 
 Garlinghouse v. Whitwell, 743 
 
 Garmstone v. Gaunt, 209 
 
 Garner v. Garner, 721 
 
 V. Hannyngton, 444 
 
 Garnett v. Acton, 193, 265, 389 n. 
 
 V. Macon, 260, 273, 386, 658, 
 
 661 
 
 V. Stockton, 727 
 
 Garnons v. Swift, 239 
 
 Garrard v. Frankel, 160 
 
 V. Girling, 160 
 
 V. Pittsburg, &c. Railroad 
 
 . Co. 661 
 
 ■w. Tuck, 373, 478, 480, 497, 
 
 621 
 
 Garret v. Noble, 62 
 
 Garrett v. Besborough, Lord, 167, 266 
 
 w.. Garrett, 701, 708 
 
 Garrick v. Camden, Earl, 104 
 
 V. Tayler, 702, 703 
 
 Garrison v. Rives, 719 
 
 ' V. Sandford, 577, 610 
 
 Garro v. Thompson, 518 
 
 Garson v. Green, 671, 675, 680 
 
 Garstone v. Edwards, 115 
 
 Garter «, Chandler, 171 
 
 Garth V. Ward, 758 
 
 Garthshore v. Chalie, 708 
 
 Gartside v. Isherwood, 275 
 
 Garvin v. Cohen, 246 
 
 Garwood v. Garwood, 728 
 
 Gascoigne v. Thwing, 701, 701 n. 
 
 Gaskarth v. Lowther, Lord, 131, 194, 
 
 643 
 Gaskell v. Durdin, . 768 
 
 Gassett v. Grout, 715 
 
 Gaston v. Frankum, 342, 368 
 
INDEX TO CASES CITED OE IKTEODUCED. 
 
 Gates V. Caldwell, 608 
 
 V. Jacob, 486 
 
 V. Winslow, 251, 549 
 
 Gausden, John, in re (2 John. & 
 
 Hem. 248), 463 
 
 Gause V. Hale, 172 
 
 Gay V. Edwards, 484 
 
 V. Gay, 381 
 
 Gayetty v. Bethune, 492 
 
 Gazley v. Price, 239, 573 
 
 Gedye v. Montrose, Duke of, 263, 268 
 
 Gee V. Gee, 701 
 
 V. Pearse, 21, 55, 262 
 
 V. Ward, 418 
 
 Geer v. Geer, 236 
 
 Geiger t;. Geiger, 171 n. 
 
 Gell V. Vermedum, 201 
 
 V. Watson, 325, 640 
 
 Gennings v. Norton, 611 
 
 Gentry v. Kogers, 266 
 
 Geoghegan v. Connolly, 17, 26, 337, 
 
 347, 382 
 George v. Johnson, 484 
 
 V. Kent, 728, 755, 775 
 
 V. Kimball, 72^ 
 
 V. Milbanke, 381, 720 
 
 u. Norris, . 174 
 
 V. Pritchard, 368 
 
 V. Putney, 600 
 
 V. Richardson, 275 
 
 V. Wood, 761 
 
 Gerard v. O'Reilly, 757 
 
 Gerber v. Grabel, , 491 
 
 Gerenger v. Summers, 492 
 
 Gerhard u. Bates, 3, 743 
 
 German v. Machin, 152, 155, 211 
 
 Gervais v. Edwards, 221 
 
 Getchell v. Jewett, . 129, 260 
 
 Getman v. Getman, 701 
 
 Ghiselin v. Ferguson, 671, 683 
 
 Ghost V. Waller, 71 
 
 Gibbins v. Asylum, Board of, 141 
 
 V. North East Metropoli- 
 tan Asylum District, 132 
 Gibbons v. Baddall, 675, 680 
 
 Gibbs V. Champion, 260 
 
 o. Chisolm, 640, 641 
 
 V. Cunningham, -60 
 
 V. Jemison, 361 
 
 Gibert v. Peteler, 775 
 
 Gibler v. Trimble, 759 
 
 Gibson's case, 60 
 
 Gibson V. Carsell, " 462 
 
 V. Chouteau, 556, 727 
 
 u. Clarke, -230, 390 n., 405 n., 
 .418 
 i;. Crehore, 457 
 
 Gibson V. D'Este, 246, 248, 328, 756 n. 
 V. Eller, . 291 
 
 V. Fifer, 254, 645 
 
 V. Foote, 702 
 
 l: Gibson, 458 
 
 V. Goldsmid, 241, 613, 682, 745 
 V. Hammersmith & City 
 
 Ry. Co. 73 
 
 V. Jeyes, 693 
 
 V. Lair, 175 
 
 V. Montfort, Lord, 183 
 
 V. Russell, 286 
 
 0. Smith, 326 
 
 V. Soper, 208, 208 n. 
 
 w. Spurrier, 312, 320, 320 n., 
 
 405 
 
 I'. WooUard, 94 
 
 Giddings v. Smith, 464 n. 
 
 Giffard v. Hort, 110, 752 
 
 Gilbert v. Bulkley, 1 6 7, 6 7 7, 6 1 1 
 
 Gilbertson v. Richards, 65 
 
 Gilchrist v. Bine, 573, 574 
 
 Giles V. Baremore, 486 
 
 V. Giles, . 239 
 
 V. London, Chat. & Dover 
 
 Ry. Co. 73 
 
 V. Simonds, 123, 124, 126 
 
 Gill V. Bicknell, 42, 139, 147, 361 
 
 V. Watson, 230 
 
 Gillespie u. Gillespie, 713 
 
 V. Moon, 160, 171, 747 
 
 V. Reed, 761 
 
 Gillett V. Abbott, 407, 438 
 
 V. Maynard, 236, 298 
 
 V. Off or, 57 
 
 1^. Peppercorne, 689 
 
 Gillibrand v. Goold, 659 
 
 Gilliohan v. MoGusty, 538 u. 
 
 Gilliott u. Gilliott, 10 
 
 Gilman t). Brown, 671, 675, 676, 
 
 681 n. 
 
 V. Crossly, 495 
 
 Gilmore v. Morgan, 326 
 
 0. Wilson, 124 
 
 Gilpin V. Smith, 549 
 
 Gilroy v. Alls, 215 
 
 Ginger v. Bayly, 238 
 
 Girdlestone v. Lavender, 94 
 
 Girst V. Hodges, 610 
 
 Gist V. Cattell, 484 
 
 V. Frazier, 119, 275 
 
 V. Gist. 742 
 
 V. Robinson, 462 
 
 Givens v. Calder, 139, 151 
 
 Glaister v. Hewer, 705 n., 707 
 
 Glass V. Hulbert, 151, 152, 154, 160, 
 
 171, 174, 762 
 
INDEX TO CASES CITED OB INTEODUCED. 
 
 CI 
 
 Glass V. Richardson, 
 
 Glave V. Harding, 
 
 405 n., 562 
 
 25 
 
 Glaze V. Drayton, 201 
 
 Glazebrook v. Woodrow, 239 
 
 Gleason v. Dodd, 663 
 
 V. Smith, 600 
 
 Glen V. Glen, 324 
 
 Glengall, Lord, v. Barnard, 147 
 
 B. Thynne, 140 
 
 Glenn v. Clapp, 1 20 
 
 V. Randall, 701 
 
 V. Wotten, 98 
 
 Glidden v. Hunt, 713, 719, 763 
 
 Glidewell v. Spaugh, 701, 762 
 
 Glinsk V. Zawadski, 752 
 
 Glover v. Hall, 445 n. 
 
 V. Payn, 199 
 
 V. Smith, 315, 324 
 
 V. Spendlove, 462 
 
 Glyn V. Locke, 669, 660 
 
 Glynn v. George, 124 
 
 Gochenauer v. Froelich, 70 
 
 Goddard v. Chase, 33 
 
 V. Gardner, 786 
 
 V. Mitchell, 236, 237 
 
 Godson V. Turner, 345 
 
 Godwin V. Francis, 130, 361 
 
 Going V. Farrell, 768 
 
 Goldicott V. Townsend, 718 
 
 Goldney v. Crabb, 406 n. 
 
 Goldsmid v. Stonehewer, 659 n. 
 
 Goldsmith v. Guild, 257, 262, 268 
 
 V. Obermeier, 47 
 
 V. Russell, 706 n. 
 
 Goldson V. Gardiner, 758 
 
 Goleborn v. Alcock, 738 
 
 Gomez V. Tradesmen's Bank, 456, 701 
 
 Gomm V. Parrott, 792, 794 
 
 Gompertz v. , 352 
 
 V. Bartlett, 2 
 
 V. Pooley, 222 
 
 Gooch's case, 713 
 
 Good V. Good, 361 
 
 Goodale v. Wheeler, 63 
 
 Goodall 1'. Little, 786 
 
 V. Pickford, 119 
 
 V. Skerratt, 483 
 
 Gooday j'. Colchester, &c. Ry. Co. 75, 
 
 76, 80 
 
 Goode V. Burton, 434, 565, 671 
 
 V. Job, 482, 488 
 
 V. West, 225 
 
 Goodell u. Field, . 171 
 
 Goodhue v. Barnwell, 151, 155 
 
 Goodinge v. Goodinge, 169 
 
 Goodman v. Grierson, 199 
 
 V. Griffiths, 138 
 
 Goodrich v. Jones, 
 
 33 
 
 V. Longley, 
 
 158 
 
 V. Pendleton, 
 
 484 
 
 V. Proctor, 
 
 658 
 
 GoodrigHt v. Glazier, 
 
 186 
 
 V. Hodges, 
 
 702 
 
 V. Moses, 
 
 715 
 
 V. Sales, 
 
 625 
 
 V. Swymmer, 
 
 399 
 
 V. Wells, 
 
 617 
 
 Goodson V. Beacham, 
 
 ,556 
 
 I;. Ellison, 
 
 559 
 
 Goodtitle v. Cummings, 
 
 738 
 
 V. Meredith, 
 
 185 
 
 V. Morgan, 
 
 356, 660 
 
 V. Nunp, 
 
 239 
 
 V. Pope, 
 
 196 
 
 V. Saville, 
 
 188 n. 
 
 Goodwin v. Clarke, 
 
 241 
 
 V. Fielding, 
 
 62, 139, 275 
 
 V. Gilbert, 
 
 126, 645 
 
 V. Lightbody, 
 
 176, 269 
 
 V. Lynn, 
 
 239 
 
 V. Lyon, 260, 268, 747 
 
 V. Richardson, 698 
 
 Goold V. Teague, 186, 187, 684 
 
 V. White, 22, 405 n., 418 
 
 Goom V. Aflalo, 144 
 
 Gord V. Needs, 169 
 
 Gordon v. Ball, 352 
 
 V. Brown, 221 
 
 V. Crawford, 276 
 
 V. Graham, 739 
 
 u. Haywood, 720 
 
 V. Hertford, Marquis of, 160 
 
 V. Mahoney, 266, 269, 347 
 
 V. Parmelee, 2, 4, 243 
 
 V. Rockafellow, 789 
 
 V. Scott, 699 
 
 V. Shaw, 790 
 
 V. Slips, 42, 102, 106, 109, 114, 
 
 115, 117, 120, 147 
 
 V. Sizer, 777 
 
 V. Trevelyan, 135 
 
 V. Woodford, 32 
 
 Gore, ex parte, 689 
 
 ?;. Bowser, 518, 520, 524, 636 
 
 V. Brazier, 611 
 
 V. Stacpoole, 110 
 
 V. Wiglesworth, ' 749 
 
 Gorely «, Gorely, 222 
 
 Gorge's, Lady, case, 703, 705 
 
 Goring, ex parte, 61 
 
 V. Shreeve, 518 
 
 Gorman u. Salisbury, 167 
 
 Gormstone v. Gaunt, 405 n. 
 
 Gorsuch V. Cree, 221 
 
cu 
 
 INDEX TO CASES CITED OR INTRODUCED. 
 
 Gorton V. Champneys, Sir T. 392 
 
 Gosbell V. Archer, 138, 139, 143, 147, 
 
 237, 362 
 Goslin V. Carter, 660 
 
 Gosling V. Gosling, 224 
 
 Goss V. Nugent, Lord, 158, 164, 165, 
 
 167 
 
 Gossom V. Donaldson, 108 
 
 Gough V. Crane, 715 
 
 V. Stedman, 787 
 
 ' Gould V. Lee, 169 
 
 u. Mansfield, 127 
 
 V. Okenden, 275 
 
 V. Shoyer, 725 
 
 V. Stafford. Ry. Co. '91 
 
 V. Thompson,. 179 
 
 V. Womack, 213 
 
 V. Woodward, 761 
 
 Gourdine v. Theus, 481 
 
 Gourlay v. Somerset, Duke of, 135, 140, 
 
 287, 288 
 Gouverneur v. Elmendorf', 549, 553 
 V. Lynch, _ 753, 762 
 
 Gover, ex parte, - 63 
 
 Govern v. Littlefield, 569 
 
 Governeur v. Titus, 160 
 
 Governor v. Freeman, 743 
 
 Govett V. Richmond, 743 
 
 Go wan V. Tighe, 104 
 
 Goward v. Waters, 158 
 
 Gowen V. Emery, 786 
 
 V. Klous, 134, 143 
 
 Gower V. Sterner, 160 
 
 Gowing V. Rich, 706 
 
 Gowland v. De Faria, 276, 277, 279, 
 280, 281, 282, 283, 286 
 Graff V. Castleman, 668 
 
 Grafton Bank v. Woodward, 158 
 
 ' Grafton, Duke of, v. London & Bir- 
 mingham Ry. Co. 466 
 Gragg V. Richardson, 612 
 Graham v. Anderson, 727 
 V. Call, 289 
 V. Davidson, 253 
 V. Donaldson, 702 
 o. Graham, 358, 741 
 V. Hackwith, 355 n. 
 V. Hatch, 556 
 V. Hendren, 29, 307 
 V. Lambert, 721 
 V. Meek, 559 
 V. Musson, 134, 145, 147 
 V. Oliver, 216, 308 
 V. Sime, 562 
 V. Torrance, 484 
 V. Teates, 155 
 Grainge, ex parte, 83 
 
 Grainger v. Worms, 
 
 . 
 
 26 
 
 Granby v. McCleese, 
 
 
 239 
 
 Granger v. Warrington, 
 
 
 785 
 
 Grannis v. Clark, 
 
 
 496 
 
 Grant v. Chase, 
 
 
 491 
 
 V. Cole, 
 
 
 757 
 
 V. Combs, 
 
 
 324 
 
 V. Craigmiles, 
 
 156 
 
 236 
 
 V. Ellis, 
 
 476 
 
 477 
 
 V. Hook, 
 
 658, 
 
 659 
 
 V. Mills, 
 
 676, 
 
 681 
 
 V. Munt, 331, 332, 334 
 
 V. Naylor, 155 
 
 V. United States Bank, 738 
 
 V. Yea, 467 
 
 Grantham v. Hawley, 247 
 
 Grantland v. Wright, 15 
 
 Grapengether v. Pejervary, 671, 680 
 
 Graves v. Dugan, 701 
 
 V. Graves, 645, 702, 775 
 
 V. McCall, 671, 680 
 
 V. Ward, 727 
 
 0. Weld, 125 
 
 V. Wright, 55 
 
 Gray v. Bartlett, 743 
 
 V. Briscoe, 611 
 
 V. Cuthbertson, 589 n. 
 
 V. Dougherty, 241 
 
 V. Fox, 785 
 
 V. Gray, 102, 102 n., 646 
 
 V. Gutteridge, 51, 57 
 
 V. Handkinson, 549 
 
 V. Hill, 126 
 
 V. Holdship, 33 
 
 V. Liverpool, &c. Ry. Co. 77, 
 
 77 n. 
 
 V. Palmer, 127, 699 n. 
 
 V. Fatten, 125, 700 
 
 V. Shaw, 61 
 
 U.Wood, 171 
 
 Gray Coat Hospital, Governors of, 
 
 V. West Imp. Co. Ill, 405 n., 526 
 Grayden, in re, 467 
 
 Greated v. Greated, 195 
 
 Great Falls Manuf. Co. v. Worster, 201 
 Great Luxembourg Ry. Co. v. Mag- 
 nay, 696 n. 
 Great N. Ry. Co. ex parte, 86, 88 
 V. Lancashire, 
 &c. Ry. Co. 86 
 Great South. &c. Ry. Co. in re, 90 
 Greaves v. Ashlin, 39, 158 
 V. Wilson, 15, 20, 23, 525 
 Green v. Armstrong, 125, 126 
 V. Bartlett, 47 
 V. Baverstocke, 9 
 V. Biddle, 747 
 
INDEX TO CASES CITED OK INTRODUCED. 
 
 cm 
 
 Green v. Bonnell, 
 V. Covillaud, 
 • V. Creighton, 
 V. Crockett, 
 V. Demoss, 
 I'. Green, 
 u. Hatch, 
 V. Holway, 
 V. Jackson, 
 V. Jenkins, 
 V. Kopek^ 
 V. Laurie, 
 u. Low, 
 V. Lowes, 
 V. McDonald, 
 
 174 
 
 ■ 232 
 
 596 
 
 671, 683 
 
 681, 683 
 
 7, 236, 456 
 
 381 
 
 566, 569 
 
 547 
 
 246 
 
 57 
 
 725 
 
 188 n. 
 
 656 
 
 549 
 
 V. Maiden, First Parish in, 33 
 
 ■V. Morris, 160 
 
 V. Mules, 47 
 
 V. Pulsford, 394, 405 n. 
 
 V. Reynolds, 241 
 
 V. Slayter, 758, 762 
 
 V. Smith, 175, 193, 210 
 
 V. Snead, 149 
 
 V. Suddington, 126 
 
 Vi Tallman, 611 
 
 V. Tanner, 196, 720, 738 
 
 V. White, 758 
 
 V. Winter, 747 
 
 V. Wood, 262 
 
 Greenaway v. Adams, 233 
 
 Greenby v. Wilcock, 577, 600, 610 
 
 Greene v. Bateman, 215 
 
 V. Cramer, 140 
 
 V. Darling, 878 
 
 V. Dingley, 271 
 
 V. Greene, 456 
 
 V. Lambert, 625 
 
 V. O'Kearney, 715 
 
 V. Tallman, 611 
 
 Greenfield v. Bates, 198 
 
 Greenfield's Estate, 690 
 
 Greenhalgh v. Manchester, &c. Ky. 
 
 Co. 86 
 
 Greenhill v. Greenhill, 183 
 
 Greenlaw v. Kin^, 692, 785 
 
 Greenleaf v. Cook, 549 
 
 D. Edes, 728 
 
 V. Queen, 61 
 
 Greenslade v. Dare, 755, 776, 798 
 
 Greenup v. Vernon, 179 
 
 Greenvault v. Davis, 600, 611 
 
 Greenway v. Greenway, 462 
 
 Greenwood v. Churchill, 638 
 
 V. Ligon, 337, 573, 601 
 
 V. Penny, 185 
 
 V. Kothwell, 445 
 
 V. Sutherland, 225 
 
 Greenwood v. Taylor, 
 
 198 
 
 554 
 
 V. Titterington, 
 
 
 288 
 
 Greer v. Baughman, 
 
 
 702 
 
 Gregg V. Glover, 
 
 
 119 
 
 V. Wells, 
 
 
 743 
 
 Gregory v. Duncan, 
 
 
 273 
 
 V. Gregory, 63, 253, 696 
 
 V. Mighell, 135, 151, 288 
 
 V. Spencer, 352 
 
 V. Wilson, 297 
 
 Gregson v. Hindley, 486 
 
 V. Riddle, 268 
 
 Greisley v. Chesterfield, Lord, 70 
 
 Gresley v. Mousley (4 De G. & J.), 253, 
 
 689, 690, 693, 695 
 
 V. Mousley (1 Giff.), 286, 693, 
 
 696 
 
 V. Mousley (2 K. & J.), 
 
 445 n. 
 
 Greswold v. Marsham, 519, 761 
 
 Greville v. Da Costa, 237, 248 
 
 Grey v. Friar, 258 
 
 V. Friars, 370 
 
 V. Grey, 704 
 
 V. Jenkins, 498 
 
 Grey, Lord, v. Grey, Lady, 708 
 
 Grider v. Graham, 713 
 
 V. Payne, 687, 688 
 
 Gridley v. Tucker, 611 
 
 Grifiin v. Blanchard, 675 
 
 V. Camack, 671, 683 
 
 V. Clowes, 667, 681 n. 
 
 V. Cunningham, 386 
 
 u. Fairbrother, 577 
 
 V. Heermance, 268 
 
 V. Ranney, 566 
 
 V. Reynolds, 611 
 
 V. Sheffield, 556 
 
 V. Stanhope, 718, 721 
 
 V. Taylor, 206 
 
 Griffith V. Depew, 287, 672 
 
 V. Griffith, 753, 755, 756, 790 
 
 K. Hadley, 99, 120 
 
 V. Heaton, 633 
 
 V. Matthews, 376 
 
 V. Puleston, 125 
 
 V. Young, 126 
 
 Griffiths V. Gale, 463 
 
 V. Hatchard, 34 
 
 V. Porter, 7 1 
 
 Grigg V. Landis, 221, 265, 268, 271, 
 
 501, 596 
 Griggs V. Austin, 236 
 
 Grigsby v. Hair, 676, 683 
 
 Grimes v. Shrieve, 747 
 
 Grimston v. Carter, 753, 762 
 
 Grissell v. Peto, 24, 120 
 
CIV 
 
 INDEX TO CASES CITED OR INTRODUCED. 
 
 Grist V. Hodsies, 
 
 577, 600 
 
 Hackett v. Huson, 
 
 241 
 
 Griswold v. Messenger, 
 
 151, 645 
 
 V. Martin, 
 
 378 
 
 i. Smith, 
 
 171 
 
 Hackney v. Jones, 
 
 48 
 
 Groesbeck !•. Seeley, 
 
 701 
 
 Haddix v. Haddix, 
 
 687 
 
 Groom V. Blake, 
 
 485 
 
 Haddon's case. 
 
 206 
 
 V. Booth, 17, 35, 337 
 
 659, 663 
 
 Hadfield's Estate, in re. 
 
 89 
 
 Gross V. Pearsy, 
 
 102, 109 
 
 Hadley v. Baxendale, 
 
 355 
 
 Grosvenor v. Green, 
 
 7, 764 
 
 V. Pickett, 
 
 675 
 
 V. Hampstead J. Ry. Co. 73 
 
 Haffey v. Birchett, 
 
 600, 683 
 
 Grousock V. Smith, 
 
 241 n. 
 
 Hagedorn v. Laing, 
 
 41, 258 
 
 Grout V. Hapgood, 
 
 687 
 
 Hagthorp v. Hook, 
 
 720, 753 
 
 Grove v. Bastard, 394, 405 n.. 
 
 440, 627, 
 
 Haig V. Hogan, 
 
 182, 584 n. 
 
 
 651 
 
 Haigh, in re, 
 
 473 
 
 V. West, 
 
 375 
 
 V. De La Cour, 
 
 174 
 
 V. Young, 
 
 394, 440 
 
 Haines v. Burnett,, 
 
 27 
 
 Grover v. Flye, 
 
 518 
 
 0. Coales, 
 
 273 
 
 V. Hugell, 
 
 653, 692 
 
 V. O'Conner, 
 
 702 
 
 Groves v. Groves, 
 
 701 
 
 V. Roberts, 
 
 59 
 
 Growing v. Behn, 
 
 682 
 
 Hair v. La Brouse, 
 
 161 
 
 Growsock V. Smith, 
 
 632 
 
 Hakes v. Hotchkiss, 
 
 56, 161 
 
 Grubbs V. Wiley, 
 
 57 
 
 Halcot V. Markant, 
 
 708 
 
 Grugeon v. Gerrard, 
 
 196 n. 
 
 Haldenby v. Spofforth, 
 
 62 
 
 Grundy v. Jackson, 
 
 555 
 
 Hale V. Henrie, 
 
 127, 699 n. 
 
 Gudgen v. Basset, 
 
 434 n. 
 
 V. Jewell, 
 
 174 
 
 Guerard v. Rivers, 
 
 611 
 
 Haley v. Bennett, 
 
 671, 680 
 
 Guerdon v. Kirtland, 
 
 573 
 
 V. Hammersley, 
 
 33 
 
 Guerrant v. Anderson, 
 
 728 
 
 Hall, ex parte, 
 
 715 
 
 Guerry v. Ferryman, 
 
 381 
 
 V. Adkinson, 
 
 741 
 
 Guest V. Homfray, 260 
 
 , 266, 299 
 
 V. Ashley, 
 
 727 
 
 V. Smythe, 
 
 114 
 
 V. Betty, 
 
 16, 337, 368 
 
 Guinness v. Burr, 
 
 181 
 
 V. Box, 
 
 596 
 
 Guion V. Bradley Academy, 
 
 482 
 
 V. Chaffee, 
 
 124 
 
 Gulick V. Ward, 
 
 11 
 
 V. Cockrell, 
 
 44 
 
 Gully V. Exeter, Bishop of, 
 
 714, 719 
 
 V. Conder, 
 
 240, 337 n. 
 
 V. Grubbs, 
 
 645 
 
 1'. Dean, 
 
 611 
 
 V. Ray, 
 
 457 
 
 V. Hall, 
 
 149, 155 
 
 Gunn V. Butler, 
 
 714 
 
 V. Hallet, 
 
 695 
 
 Gimnis V. Erliart, 15, 16, 159 
 
 V. Hardy, 
 
 206, 220 
 
 Gunter v. Gunter, 
 
 625 
 
 V. Hurt, 
 
 388, 662 n. 
 
 V. Halsey, 
 
 140, 151 
 
 V. Jenkinson, 
 
 229, 230 
 
 V. Thomas, 
 
 173 
 
 V. Jones, 
 
 671 
 
 Gurley v. Hiteshue, 
 
 211 
 
 V. Laver, 
 
 343 
 
 Gurney v. Oranmore, Lord, 
 
 773 
 
 V. Lundj 
 
 24 n., 58 
 
 Guthrie v. Gardner, 
 
 701, 706 
 
 V. Maccubbin, 
 
 679, 683 
 
 V. Pugsley, 
 
 611 
 
 V. M'Leod, 
 
 492 
 
 V. Thompson, 
 
 241 
 
 V. May, 
 
 405 n., 666 
 
 Gwillim i;. Stone, 233, 367 n. 
 
 V. Mayhew, 
 
 324 
 
 Gwynne, ex parte, 
 
 54, 671 n. 
 
 V. Noyes, 
 
 687, 696 
 
 V. Heaton, 252, 275 
 
 ,276,277, 
 
 V. Priest, 
 
 464 n. 
 
 
 286 
 
 v.. Reed, 
 
 742 
 
 Gyde, ex parte, 
 
 41 
 
 V. Ross, 
 
 213 
 
 Gyles V. Gyles, 
 
 478 
 
 V. Savage, 
 
 458 
 
 
 
 V. Smith, 7, 
 
 262, 763, 775 
 
 H. 
 
 
 V. Sprigg, 
 
 701 
 
 
 
 V. Swift, 
 
 493 
 
 Hacker v. Storer, 
 
 577, 610 
 
 V. Thayer, 
 
 464 n. 
 
 Hackett v. Callender, 
 
 728 
 
 V. Timmons, 
 
 743 
 
INDEX TO CASES CITED OR INTRODUCED. 
 
 CV 
 
 Hall v. Urquhart, 120 
 
 V. Vaughan, 180, 181 
 
 V. Vandegrift, 482 
 
 V. Warren, 208, 218, 287 
 
 U.York, 611 
 
 V. Young, 701 
 
 Hall's Estate, 420 n. 
 
 Hallen v. Kunder, 126 
 
 Hallett V. Collins, 253 
 
 V. Middleton, 438, 613 
 
 Hallewell v. Morrell, 241, 363 
 
 Hallings V. Connard, 613 
 
 Hallock V. Jordin, 569 
 
 V. Smith, 675, 680, 682, 683 
 
 Halloran v. Whitcomb, 743 
 
 Halsey v. Grant, 382 
 
 V. Keid, 195 
 
 Halsted v. Meeker, 169 
 
 Ham V. Goodrich, 151, 152, 358, 361 
 
 Hamer's case, 612 
 
 Devisees' case, ^ 656 
 
 Hamil v. Stokes, ' 381 
 
 Hamilton v. Ball, 100 
 
 V. Boyles, 171 n. 
 
 V. Buckmaster, 405 n. 
 
 V. Clements, 275 
 
 V. Cutts, 600 
 
 V. Denny, 699 
 
 u. Dunsford, 78 n., 288 
 
 V. Grant, 217 
 
 V. Hamilton, 11 
 
 ■V. Jones, 151 
 
 V. Lycoming Ins. Co. 133 
 
 V. Lyster, 790 
 
 V. McGuire, 645 
 
 V. Nutt, 728 
 
 V. Royse, 755, 776, 777 
 
 V. Eussell, 712 
 
 V. Terry, 140 
 
 V. Wilson, 577 
 
 V. Worley, 195 
 
 V. Wright, > 687, 689 
 
 Hamilton's Estate, in re, 542 
 
 Hamlin v. Hamlin, 457 
 
 Hammatt v. Emerson, 2, 3, 5, 244 
 
 Hammer v. McEldowney, 134 
 
 Hammond v. Hill, 313, 602 
 
 V. Toulmin, 612 
 
 Hampden u. Miller, 671 
 
 Hamper ii. Hayes, 62 
 
 Hampson v. Edelden, 758 
 
 Hampton v. Edelden, 175 
 
 V. Eubank, 324 
 
 Hanbury v. Litchfield, 306 
 
 Hancock v. Beverly, 727 
 
 V. Byrne, 563 
 
 Hand v. Grant, 147, 148 
 
 Handcock v. Handcock, 
 
 ' 746 
 
 Handford v. Mosely, 
 
 679 
 
 Handley v. Chambers, 
 
 ■ 361 
 
 V. Lyons, 
 
 671 
 
 Hanger v. Eyles, 
 
 273, 299 
 
 Hankinson v. Barbour, 
 
 762 
 
 Hanks v. Pulling, 
 
 19, 337,476 
 
 Hanley v. Cassan, 
 
 49 
 
 Hanly v. Morse, 
 
 728, 762 
 
 Hanman v. Riley, 
 
 659 n. 
 
 Hanna v. Wilson, 
 
 679 
 
 Hannah v. Hodson, 
 
 394, 780 
 
 Hannay v. Eve, 
 
 213 
 
 V. Thompson, 
 
 174 
 
 Banning v. Ferrers, 
 
 743 
 
 Hannum v. Spear, 
 
 658 
 
 Hansard v. Hardy, 
 
 780 
 
 Hansbrough v. Baylor, 
 
 642 
 
 Hanslip v. Padwiek, 
 
 257, 362 
 
 Hanson, ex parte, 
 
 681 
 
 V. Barnes, 
 
 147 
 
 V. Beverley, 
 
 • 663 
 
 V. Buckner, 
 
 600,611 
 
 V. Edgerly, 
 
 3,334 
 
 V. Keating, 
 
 560 
 
 V. Lake, 
 
 92 
 
 V. Roberdeau, 
 
 53, 54 
 
 Harborough, ex parte. 
 
 88 
 
 Harcourt v. Knowel, 
 
 741 
 
 V. Ramsbottom, 
 
 289 
 
 V. White, 
 
 488, 696 
 
 Hardeman v. Burge, 
 
 245, 275 
 
 Harden v. Miller, 
 
 679 
 
 Harder v. Harder, 
 
 701 
 
 Hardin v. Major, 
 
 257 
 
 Harding o. Ambler, 
 
 645 
 
 V. Carry, 
 
 730 
 
 V. Crethorn, 
 
 781 
 
 V. Handy, 
 
 275 
 
 u. Harding (2 Giff.), 556 
 
 V. Harding (4 My. & 
 
 Cra.), 102 
 
 V. Larkin, 611 
 
 V. Nelthorpe, 553 
 
 V. Sufeolk, 169 
 
 V. Yarbrough, 102 
 
 Hardingham v. Nieholls, 789 
 
 Hardman v. EUames, 445 n., 790 
 
 V. Willcock, 53 n. 
 
 Hardwicke v. Mynd, 658, 660 
 
 Hardwicke, Lord, ex parte, 89, 632 
 
 V. Sandys, Lord, 104, 
 
 627 
 
 V. Vernon, 689, 694 
 
 Hardy v. McKesson, 241 
 
 V. Matthews, 169 
 
 V. Nelson, 611 
 
CVl 
 
 INDEX TO CASES CITED OR INTRODUCED. 
 
 Hardy v. Reeves, 
 
 781 
 
 790 
 
 V. Summers, 
 
 762 
 
 765 
 
 Hardy's Estate, in re, 
 
 
 90 
 
 Hare v. Cater, 
 
 
 598 
 
 V. Horton, 
 
 
 33 
 
 V. Shearwood, 
 
 171 
 
 173 
 
 V. Van Deusen, 
 
 
 675 
 
 Harford v. Furrier, 
 
 
 291 
 
 Hargrave v. Hargrave, 
 
 
 527 
 
 V. Le Breton, 
 
 
 357 
 
 Hargreaves v. Bothwell, 
 
 
 757 
 
 V. Wright, 
 
 
 231 
 
 Harland v. Eastland, 
 
 
 611 
 
 Harlow v. Thomas, 573, 610, 611 
 
 Harman v. Eorster, 748 
 
 V. Reeve, 127 
 
 Harnett v. Yielding, 213, 215, 218, 307, 
 
 355 
 
 Harney v. Morton, 556 
 
 Harnor v. Groves, 158 
 
 Harper v. Archer, 708 
 
 ■V. Clark, 569 
 
 V. Hayes, 60, 61, 113, 216 
 
 V. Little, 44, 563 
 
 V. Reno, 555 
 
 V. Ross, 174 
 
 V. Scott, 719 
 
 V. Williams, 681, 682 
 
 Harrell v. Hill, 324 
 
 V. Kelly, 254 
 
 V. Miller, 126 
 
 Harriman v. Gray, 556, 577 
 
 Harrington v. Brown, 253, 687, 688, 
 
 694 
 
 u. Hoggart, 639 
 
 u. Long, 357 
 
 V. Price, 434, 683 
 
 V. Rydear, 610 
 
 V. Wheeler, 262 
 
 Harrington, Sir John, u. Garroway, 520 
 
 Harris v. Arnold, 762 
 
 V. Carter, 762 
 
 V. Coulbourn, 577 
 
 V. Davison, 525 
 
 V. Dickins, 169 
 
 V. Eergusson, 698 
 
 V. Gillingham, 123 
 
 V. Haines, 721 
 
 V. Harlan, 675 
 
 V. Harris, 488 
 
 V. Hill, 445 n. 
 
 V. Ingledew, 790 
 
 V. Kemble, 5, 211 
 
 V. Miller, 124 
 
 V. Mills, 484, 486 
 
 V. Mott, 207 
 
 V. Norton, 753 
 
 Harris v. Pepperell, 160 
 
 w. Pugh, 519 
 
 V. Tyson, 5 
 
 Harrisburg Bank v. Poster, 254 
 
 V. Tyler, 708 
 
 Harrison, ex parte, 687 
 
 V. Barton, 698, 698 n. 
 
 V. Carroll, 713 
 
 V. Chilton, 236 
 
 V. Coppard, 438, 439,, 443, 
 
 654 
 
 V. Duignan, 485 
 
 V. Forth, 763 
 
 V. Guest, 275, 756 
 
 V. Harrison, 177 
 
 V. Kramer, 714 
 
 V. Marshall, 378, 381 
 
 V. Mock, 687 
 
 V. Phillips Academy, 167 
 
 V. Southcote, . 675 
 
 V. Talbot, 159, 324, 326 
 
 V. Wright, 221 
 
 Harrop's Estate, in re, 85, 685 
 
 Harrow v. Johnson, 153 
 
 Harryman v. Collins, 774, 777 
 
 Hart u. Bleight, 119,120 
 
 V. Brand, 627, 647 
 
 V. Farmers' & Mechanics' 
 
 Bank, 728, 744, 757 
 
 V. Woods, 42, 147 
 
 Hartford v. Furrier, 645 
 
 Hartley v. Allen, 182 
 
 w. McAnulty, 158, 
 
 V. Pehall, 389 n., 400 n., 589 n. 
 
 V. Smith, 402, 405 n. 
 
 V. Wilkinson, 149 
 
 Hartly v. O'Flaherty, 540, 541, 738, 
 
 746 
 
 Hartopp V. Hartopp, 2, 276 
 
 Hartridge v. Warwick, . 491 
 
 Hartshorne v. Hartshorne, 457, 518 
 
 Hartwell v.. Colvin, 253 
 
 Hartwright v. Fereday, 570 
 
 Harvey v. Alexander, 645 
 
 V. Ashley, 779 
 
 V. Crawford, 640 
 
 V. Graham, 166 
 
 r. Kelley, 671 
 
 c/. Montague, 760 
 
 V. Phillips, 437 
 
 V. Varney, 713, 719 
 
 V. Woodiouse, 741 
 
 V. Younge, 2 
 
 Harvey, Sir Thomas, v. Montague, 760 
 
 Harwood v. Bland, 320, 345, 347 
 
 V. Wallis, 171 
 
 Hasbrouck v. Tappan, 165 
 
INDEX TO CASES CITED OR INTRODUCED. 
 
 cvn 
 
 Haskell v. Haven, 
 
 727 
 
 Hasker v. Sutton, 
 
 389, 405 n. 
 
 Hassell, ex parte, 
 
 481, 482 
 
 Hastie v. Couturier, 
 
 247, 274 
 
 Hastings v. Wilson, 
 
 65 
 
 V. Wiswall, 
 
 640 
 
 Hatch V. Barr, 
 
 730 
 
 V. Bigelow, 
 
 76.2 
 
 V. Cobb, 
 
 210, 233 
 
 V. Haskins, 
 
 727 
 
 V. Hatch, 167, 169, 253, 460 
 V. Kimball, 743 
 
 Hatchell v. Cremorne, 742 
 
 Hatcher v. Hatcher, 151, 152, 156, 232, 
 
 871 
 
 Hatfield v. Montgomery, 486 
 
 Hatfield's Estate, in re, 87 
 
 Hathmacher v. Harris, 5 
 
 Hatton V. Gray, 129 
 
 iv Jones, 713 
 
 V. Waddy, 594 n., 804 
 
 Hatton's, Sir Christopher, ease, 544 
 
 Haughton v. Eustis, 523 
 
 Haughwout V. Murphy, 175, 266, 542, 
 
 752, 753, 758 
 
 Hauser v. Shore, 658 
 
 Havelock v. Geddes, 239, 258 
 
 Haven v. Adams, 758 
 
 V. Foster, 185 
 
 Havens v. Dale, 762 
 
 V. Middleton, 393, 405 n. 
 
 Haverstick v. Sipe, 491 
 
 Hawes V. Humphrey, 464 
 
 Hawes Place Cong. So. v. Hawes 
 
 Fund, Trustees of, 70 
 
 Hawkes v. Eastern Couaties Ky. Co. 75, 
 
 76, 77, 80i, 217 
 
 Hawkins, ex parte,- 85, 189 
 
 V. Chace, 129, 142 
 
 V. Gathercole, 523, 786 
 
 V. Holmes, 144, 154 
 
 V. Hunt, 154 
 
 V. Kemp, 241, 664 
 
 V. Perry, 92, 654 
 
 V. Eutt", 49 
 
 Hawksbee v. Hawksbee, 476 
 
 Hawley, in re, 78, 287 
 
 V. Bullock, 762 
 
 V. Cramer, 253, 687, 688, 689, 
 
 690, 694, 695, 696 
 
 V. James, 457 
 
 V. Manoius, 680 
 
 Hawralty v. Warren, 206 
 
 Hay V. Sterrett, 491 
 
 V. Willoughby, 225 
 
 Hay's Will, in re, 202 
 
 'Haycraft v. Creasy, 4, 744 n. 
 
 Hayden v. Bucklin, ' 484 
 
 V. Stoughton, 462 
 
 V. Stuart, 683 
 
 Haydon «. Bell, 345 
 
 Hayes u. Bailey, 382,621,641,647 
 V. Barton, 84 
 
 V. Bayley, 384 
 
 V. Bickerstaff, , 600, 601 
 V. Caryll, 262 
 
 V. Harmony Grove Ceme- 
 tery, • 386, 402 
 V. Kershaw, 721 
 V. Kingdome, 698 
 V. Tabor, 556 
 V. Ward, 680 
 V. Woodley, 476, 481 
 Hayford v. Criddle, 300 
 Haynes v. Barton, 89 
 V. Crutchfield, 11 
 V. Forshaw, 668, 669 
 V. Fuller, 158 
 «. Hare, 56,171,173 
 V. Haynes, 80, 85, 85 n., 189, 
 190 n., 191 
 V. Stevens, 611 
 V. Young, 610 
 Hays V. Askew, 559 
 V. Hall, 260, 268 
 V. HoUis, 702 
 V. McGuire, 727 
 V. Bichardson, 124 
 Hayward v. Ellis, 687, 691, 694 
 V. Howe, 464 n. 
 V. Lomax, 554 
 Haywood v. Cope, 2, 3, 211, 253, 269, 
 
 333, 349 
 V. Ellis, 692 
 
 Hazard v. Irwin, 2, 5, 56, 244 
 
 V. Robinson, 492 
 
 Hazleton v. Putnam, 124 
 
 Head's case, 376 
 
 Head v. Egerton, 788 
 
 Headen v. Kosher, 277, 281, 282, 283, 
 
 284 
 
 Headley v. Koadhead, 679, 679'n., 680 
 
 V. Shaw, 239, 241 
 
 Heald v. Kenworthy, 49 
 
 Healey v. Alston, 617 
 
 Heane v. Rogers, 7 
 
 Heap V. Tonge, 716 
 
 Heaphy v. Hill, 269 
 
 Heard v. Cushing, 743 
 
 . V. Hall, 743 
 
 ir. Pilley, 145 
 
 V. Wadham, 239, 241 n. 
 
 Hearle v. Botelers, 675, 680 
 
 Hearne v. James, 131 
 
CVUl 
 
 INDEX TO CASES CITED OE INTRODUCED. 
 
 Hearne v. 'Tenant, 
 V. Tomlin, 
 
 Heath v. Heath, 
 
 V. Newman, 
 V. Randall, 
 V. Whidden, 
 
 260 
 
 8, 179, 298 
 
 385, 389 n. 
 
 549 
 
 126 
 
 ,577, 610 
 
 Heathcote u. North Stafford.. Ky. 
 
 Co. 78 n. 
 
 V. Paignon, 275 
 
 Heather v. O'Neill, 206 
 
 Heatherly v. Record, 158 
 
 Heatley v. Finster, 753, 758, 789 
 
 Hebb's case, 133 
 
 Hebron v. Centre Harbor, 174 
 
 Heckard v. Sayre, 268 
 
 Hedges w. Metropolitan Ry. Co. 266 
 
 Heffernan v. Adams, 57 
 
 Hegan v. Johnson, 179 
 
 Heilbron v. Bissell, 742 
 
 Heisier v. Clark, 720 
 
 Heister v. Fortner, 761 
 
 Heiss V. Cronan, 134 
 
 Heist u. Baker, 671 
 
 Hele V. Bexley, Lord, 485, 521, 621 
 
 Helling v. Lumley, 213 
 
 Helms V. Franciscus, 206 
 
 Helsham v. Langley, 216 
 
 Heming v. Archer, 203 
 
 Hempfield R. R. Co. v. Thornbury, 671 
 
 Hemmer v. Cooper, 2, 243 
 
 Hemming v. Mayo, 225 
 
 V. Spiers, 419 
 
 Hempstead v. Easton, 559 
 
 Henderson v. Atkins, 484, 487 
 
 V. Barnewall, 147 
 
 V. Burton, 671 
 
 V. Dodd, 645 
 
 V. Hackney, 556 
 
 V. Hays, 213 
 
 V. Henderson, 601 
 
 V. Hoke, 701 
 
 V. Hudson, 700 
 
 V. Lo*ry; 114 
 
 V. Overton, 743 
 
 V. Wild, 681 n. 
 
 Hendricks v. Crowley, 158 
 
 u. Robinson, .682,689,728 
 
 Henkel v. Pape, 130 
 
 Henkle v. The Royal Exchange 
 
 Ass. Office, 171, 173 
 
 Henly v. Brown, 127, 700 
 
 Hennessey v. Andrews, 755 
 
 V. Old Colony & New- 
 port R. R. Co. 25 
 Henniker.j;. Chafy, 89 
 Henning v. Withers, - 611 
 Henry t). Grady, , 239 
 
 Henry v. Gt. N. Ry. Co. 377 
 
 V. Raiman, 689, 693 
 
 V. Root, 130, 141 
 
 V. Smith, 489 
 
 Henson v. Kinard, 721 
 
 Hepburn v. Auld, 210, 233, 240, 260, 
 
 262, 264, 268, 299,306,320 
 
 V. Dunlap, 210, 268, 386, 640 
 
 V. M'Dowell, 124 
 
 V. Snyder, 671 
 
 Hepworth v. Heslop, 1 08 
 
 Herbert, ea; parie, 762 
 
 V. Maclean, 596 
 
 V. Schofield, 671 
 
 Herbert's, Sir William, case, 540 
 
 Hercy v. Ferrers, 444, 445 n. 
 
 Heriot's Hospital, Feoffees of, v. 
 
 Gibson, 25, 136 
 
 Herndon v. Henderson, 56 
 
 V. Venoble, 358 
 
 Heme v. Meers, 275 
 
 Heron v. Heron, 276, 708 
 
 V. Treyne, 613 
 
 Herrick v. Attwood, 712 
 
 V. Grew, 213 
 
 U.Moore, .610,611 
 
 Herries v. Jenkins, 389 , 
 
 Herring v. Cloberry, 786 
 
 V. PoUey, 538 
 
 Herrod v. Blackburn, 251 
 
 Hershey v. Keemborts, 549 
 
 V. Weiting, 713 
 
 Hertford, Marquis of, v. Boore, 266, 
 
 268 
 Hertzog v. Hertzog, 358, 361, 611 
 
 Hervey v. Smith, 765 
 
 Hesse v. Briant, 690, 691 
 
 V. Stevenson-, 172, 602, 608 
 
 Hester v. Hooker, 211 
 
 Heth i;. Wooldridge, 151 
 
 Hewes v. Wiswell, 762 
 
 Hewison v. Negus, 715 
 
 Hewit, ex parte, 694 
 
 V. Loosemore, 755, 756, 757, 
 767, 769 
 Hewitt V. Nanson, 99 
 
 Hewlett V. Davis, 99, 102 
 
 Heyer v. Pruyn, 749 
 
 Heylyn v. Heylyn, 1 85 
 
 Heytle v. Logan, 642 
 
 Heyward v. Barnes, 132' 
 
 Hiatt V. Wade, 714 
 
 Hibbert v. Bayley, 45 
 
 V. Shee, 298 
 
 Hick, Sir H., v. Phillips, 303 
 
 Hickes v. Cooke, 253 
 
 Hickford v. Machin, 520 
 
INDEX TO CASES CITED OR INTEODUCED. 
 
 ClX 
 
 Hickman v. Grimes, 
 
 220 
 
 V. Machin, 
 
 182 
 
 Hicks r. Cram, 
 
 ' 743 
 
 V. Hankin, 
 
 47 
 
 V. Hastings, 
 
 484, 743 
 
 V. Minturn, 
 
 42,45 
 
 V. Morant, 
 
 6, 253, 735 
 
 V. Philips, 
 
 273 
 
 u.'Sallitt, 
 
 477, 484, 743 
 
 V. Sheppard, 
 
 221 
 
 Hicks, Sir H., i'. Philips, 273 
 
 J J Hickson v. Aylward, 7 
 
 V. Collis, 521 
 
 ' Hide V. Hide, 106 n. 
 
 Hiern v. Mill, 762, 767 
 
 Higby V. Smith, 251 
 
 Higdon V. Thomas, 129, 134, 142, 645 
 Higgins V. Moore, 48, 667 
 
 V. Samels, 213 
 
 V. Shaw, 661, 760 
 
 V. York Buildings Com- 
 pany, 519 
 Higginson v. Clowes, 15, 16, 32, 135, 
 148, 159, 160, 161, 215, 23i, 314 
 High V. Batte, 671, 679, 680, 738, 753, 
 
 787, 789 
 
 ». Childers, 683 
 
 Higley V. Smith, 549 
 
 Hildreth w. Sands, 713 
 
 Hileman v. Wright, 160 
 
 Hill u. Adams, 624 
 
 V. Bacon, 727 
 
 V. Browne, 555 
 
 V. Buckley, 69, 215, 216, 317, 318, 
 
 324, 325 
 
 V. Crosby, 492 
 
 V. Cumberland Valley Mutual 
 
 Protection Co. 291 
 
 V. Exeter, Bishop of, 713, 714, 719 
 V. Fisher, 257, 258 
 
 V. Fiske, 233, 573 
 
 V. Gomme, 703 
 
 V. Gray, 220 
 
 V. Great N. Ry. Co. 80, 81 
 
 V. Grigsby, 671 
 
 V. Hobart, 236, 241, 271, 358, 361, 
 
 573 
 V. Morgan, 646 
 
 V. Paul, 753 
 
 V. Pine Kiver Bank, 706, 713 
 
 V. Kessegiere, 201, 573 
 
 V. Rewee, 236 
 
 V. School District No. 2 in 
 
 Millburn, 257 
 
 V. Simpson, 668 
 
 V. Stawell, 487 
 
 V. West, 556 
 
 Hill V. Worsley, 758 
 
 Hillary !>. Waller, 390 n., 399, 405 n., 
 
 418, 486 
 Hilliard v. Allen, 224 
 
 V. Gambel, 286 
 
 Hills V. Croll, 221 
 
 Hilton V. Barrow, 354 
 
 V. Woods, 646 
 
 Hincksman v. Smith, 277, 281 
 
 Hind V. Poole, 66, 405 n. 
 
 Hinde v. Longworth, 714 
 
 V. Whitehouse, 134, 136, 139, 
 147, 148 
 Hinder v. Streeten, 92 
 
 Hindle v. Dakins, 103, 104 
 
 Hindley v. Emery, 68, 233 
 
 Hine v. Dodd, 728, 757, 761 
 
 Hines v. Perry, 762 
 
 Hinson v. Porter, 1 74 
 
 Hinton v. Hinton, 205 
 
 0. Sparkes, 51 
 
 Hintze v. Stingel, 60 
 
 Hiorns v. Holton, 776 
 
 Hipkins v. Amery, 739, 757, 767 
 
 Hipwell V. Knight, 257, 266, 268 
 
 Hitchcock V. Giddings, 247, 356, 550 
 V. Sawyer, 566, 569 
 
 Hitchcox V. Sedgwick, 623, 738, 762 
 Hitchin v. Groom, * 161 
 
 Hitchins x\ Lander, 356 
 
 Hitchman v. Walton, 33 
 
 Hoadley v. M'Lain, 137 
 
 Hoagland D. Latourette, 175 
 
 Hoare v. Parker, 788, 792 
 
 Hobart v. Frisbie, 518 
 
 Hobbs «. Knight, 463 
 
 Hobby V. Allen, 473 
 
 V. Finch, 140 
 
 Hobhouse v. Hamilton, 730 
 
 Hobs V. Norton, 743 
 
 Hobson w. Bell, 21,61,63,68,271, 
 350, 380, 422 
 V. Mellond, 441 
 
 V. Middleton, 604 
 
 Hobson or Hopson v. Trevor, 221 
 
 Hoby V. Roebuck, 148 
 
 Hockenbur^ v. Carlisle, 689, 693 
 
 Hocker v. Gentry, 703 
 
 Hocking v. Acraman, 725 
 
 Hodder v. Euffin, 100, 119 
 
 Hodgdon u. Farrell, 97 
 
 Hodge, ex parte, 90 
 
 V. Metrop. Ey. Co. 81, 266 
 
 V. Churchyard, 485 
 
 Hodges V. Croydon Canal Com- 
 pany, . 488 
 V. Green, 44, 126 
 
ex 
 
 INDEX TO CASES CItED OR INTEODUCED. 
 
 Hodges u. Horsfall, 169 
 V. Jones, 115 
 V. Litchfield, Lord, 236, 237, 
 238, 362, 363, 432, 538 
 V. Metrop. Ky. Co. 81 
 V. Saunders, 577 
 V. Tennessee Ins. Co. 174 
 Hodgkinson v. Cooper, 365, 369, 370 
 Hodgson V. Butts, 761 
 V. Coppard, 596 
 V. Dean, 761 
 V. Duce, 61 
 u. Farrell, 116 
 U.Johnson, 126,127 
 V. Le Bret, 144 
 V. Shaw, 105 
 Hodkinson v. Quinn, 662 
 Hodle I'. Henley, 486 
 Hodsou V. Coppard, 696, 804 
 Hoes V. Van Hoesen, 169 
 Hoffing V. Burnham, 755 
 Hoffman v. Johnson, 324 
 V. Skinner, 646 
 Hoffman Steam Coal Co. v. Cum- 
 berland Coal Co. 252 
 Hogan V. Jaques, 702 
 Hoggu. Snaith, 158 
 Hoggart V. Cutts, 51 
 V. Sco'tt, 266 
 Hogsatt )'. Wade, 675, 681 
 Hoghton V. Hoghton, 720 
 Holbrook V. Armstrong, 153 
 V. Baker, 728 
 V. Holbrook, 158 
 V. Wight, 53 
 Holcombe v. Raj', 719 
 Holoroft, Lady, v. Smith, 448 
 Holden v. Calcraft, 225 
 V. Curtis, 251 
 Holder V. Nunnelly, 701 
 Holdsworth u. Holdsworth, 679 n., 
 
 680 
 
 Holeman v. Hobson, 642 
 
 Holford V. Phipps, 559 
 
 Holland, ex parte, 405 n. 
 
 U.Clark, 4 80,488 
 
 V. Cruft, 464 n. 
 
 0. Eyre, 132 
 
 V. Hensley, 124 
 
 V. Hill, 398 
 
 V. King, 107 
 
 HoUenbeck v. Rowley, 26 
 
 Holley c. Adams, 714 
 
 HoUick, ex parte, 83 
 
 Holliday v. Franklin Bank, 727 
 
 ». Morgan, 332 
 
 HoUingshead v. McKenzie, 149 
 
 Hollis V. Edwards, 122 n., 123 
 
 V. Hollis, 701 
 
 V. Whiting, or Edwards, 151 
 
 Hollister v. Barkley, 640 
 
 Holman, ex parte, 399 
 
 V. Loynes, 295, 689, 690, 693 
 
 Holmes v. Ailsbie, 437 
 
 V. Baddeley, 785 
 
 V. Blogg, 686 
 
 V. Buckley, 593 
 
 V. Custance, 744 n., 781 
 
 V. Grant, 199 
 
 t. Mathews, 199 
 
 V. Newland, 476 
 
 V. Penny, 706 n., 714 
 
 V. Simons, 159 
 
 V. Sinnickson, 611 
 
 V. Stout, 738, 753 
 
 V. Tutton, 50, 538 
 
 Holroyd v. Marshall, 743 
 
 V. Wyatt, 110, 115, 631 
 
 Holt's case, 592 n. 
 
 Holt V. Holt, 625 
 
 V. Rogers, 268 
 
 V. Thomas, 234 
 
 Holwood V. Bailey, ' 660 
 
 Holyoke Machine Co. v. Franklin 
 
 Paper Company, 566 
 
 Homan v, Skelton, 168 
 
 Homer v. Fisk, 254 
 
 Homes u. Barker, 326,649 
 
 Honeycomb v. Waldron, 727 
 
 Honeywood v. Forster, 470 
 
 Honore o. Bakewell, v 675, 681, 683 
 
 Honyman v. Marryat, 132, 133 
 
 Hood V. Barrington, Lord, 130, 143 
 
 V. Bowman, 152, 155 
 
 V. Fanestock, 720, 749, 755, 757 
 
 V. Hood, 193, 195, 671 
 
 V. Huff, 627 
 
 V. New York & New Haven 
 
 Railroad Co. 76 
 
 V. Pimm, 168 
 
 Hook V. Turner, _ 11 
 
 Hooper, ex parte, 154 
 
 V Brundage, 381 
 
 V. Eyles, 701 n. 
 
 V. Goodwin, 118 
 
 V. Laney, 134 
 
 V. Logan, 683 
 
 V. Ramsbottom, 434, 683 
 
 Hoopes u. Bailey, 199 
 
 Hoot V. Spade, 611 
 
 Hoover v. Donally, 753 
 
 V. Hoover, 658 
 
 Hopcroft V. Hickman, 287 
 
 Hope u. Atkins, 158 
 
INDEX TO CASES CITED OR INTEODUCED. 
 
 CXI 
 
 Hope V. Booth, 41, 181 
 
 V. Hope, 221 
 
 V. Liddell, 72, 111, 484, 667, 745, 
 
 775, 794 
 
 V. Liddell (7 De G.,M. & G.), 434 
 
 Hopkins v. Garrard, 681 
 
 V. Grazebrook, 359, 360, 861 
 
 V. Lee, 236 
 
 358, 361 
 
 V. M'Laren, 
 
 758 
 
 t;. Mehaffey, 
 
 57 
 
 V. Tanqueray, 
 
 4 n., 10 
 
 V. Yowell, 
 
 361, 611. 
 
 Hopkinson o, Dumas, 456, 
 
 617, 700. 
 
 
 701 
 
 V. Eolt, 
 
 739 
 
 Hopkirk v. Randolph, 
 
 719 
 
 Hopper V. Jones, 
 
 174 
 
 Hoppes V. Cheek, 
 
 549 
 
 Hoppock V. Stone, 
 
 566 
 
 Hore V. Smith, 
 
 87 
 
 Horford v. Wilson, 
 
 57 
 
 Horlock V. Smith, 
 
 711 
 
 Horn V. Horn, 
 
 656, 660 
 
 V. Volcano, &c. Co. 
 
 714 
 
 V. Wingfield, 
 
 165, 406 
 
 Home's case, 587, 587 n. 
 
 Horner v. Zimmerman, 
 
 713 
 
 Hornex's Estate, in re, 
 
 85 
 
 Horniblow v. Shirley, 
 
 312, 382 
 
 Horsefall, ex parte, 
 
 563 
 
 Horsfall v. Garnett, 
 
 132 
 
 Horton V. Horner, 
 
 683 
 
 Hosier v. Read, 
 
 160 
 
 Hotham v. Somerville, 
 
 540 
 
 Hough V. Birge, 
 
 179 
 
 i;. Hunt, 
 
 275 
 
 V. Rawson, 
 
 239 
 
 V. Richardson, 5, 56, 
 
 120, 243, 
 
 
 263 
 
 Houghtaling v. Marrin, 
 
 563 
 
 Houghton, ex parte, 
 
 701 
 
 in re. 
 
 188 n. 
 
 V. Hapgood, 
 
 687 
 
 v.ljoughton. 
 
 699 n. 
 
 t;.Taorton, 
 
 138 
 
 Houlditch V. Donegal, Lord, 
 
 746 
 
 House V. House, 
 
 611 
 
 V. Walker, , 
 
 120 
 
 Houser v. Lament, 
 
 149 
 
 Houston V. Laifee,. 
 
 123, 124 
 
 . V. Stanton, 
 
 681 
 
 Hovenden v. Annesley, 
 
 253 
 
 Hovcy V. Blanohard, 
 
 756 
 
 V. Holcomb, 
 
 174 
 
 V. Magill, 
 
 57 
 
 How V. Stiles, 
 
 619 
 
 V. Waysman, 
 
 714 
 
 How V. Weldon, 741 
 
 Howard u. Braithwaite, 145 
 
 V. Castle, 10 
 
 V. Chaffer, 669 
 V. Ducane, 390 n., 391, 405 n., 
 692 
 
 V. Edgell, 275 
 
 V. Gould, 3 
 
 V. Holbrook, 134 
 
 V. Hopkins, 5, 214, 220 
 
 V. Hudson, 743 
 
 y. Moore, 211 
 
 V. Priest, 698 
 
 V. Robinson, 445 n. 
 
 V. Shaw, 179 
 
 V. Williams, 714 
 
 V. Wilmington & Susq. R. 
 
 R. 158 
 
 V. Witham, 549 
 
 V. Wright, 160 
 
 Howard's Estate, in re, . 457, 458 
 
 Howard's Ins. Co. i-. Halsey, 757 
 
 Howarth v. Deem, 669 n., 775 
 
 V. Powell, 669 n., 775 
 
 V. Smith, 403, 405 n. 
 
 Howden, Lord, v. Simpson, 75 
 
 Howe V. Alger, 25 
 
 V. Bass, 324 
 
 V. Bradley, 640 
 
 V. Carpenter, 566, 569 
 
 V. Conley, 212 
 
 V. Dewing, 42, 45 
 
 V. Howe, 701 
 
 V. Hunt, 234 
 
 V. Huntington, 239, 271 
 
 V. Logwood, 74 7 
 
 V. Russell, 174 
 
 V. Walker, 126 
 
 V. Ward, 714 
 
 Howell V. Ashmore, 737 
 
 V. Baker, 688 
 
 V. George, 206, 213, 218 
 
 V. Howell, 701, 786 
 
 ». Kightley, 22,107,117,370 
 
 V. Ransom, 690 
 
 V. Richards, 606 
 
 V. Saule, 326 
 
 V. Sebring, 116 
 
 Howes V. Barker, 158, 324 
 
 V. Brushfield, 602, 603 
 
 Howkins v. Jackson, 172 
 
 Howland v. Leach, 239 
 
 V. Norris, 312, 313, 321, 628 
 
 V. Shurtlefi; 486 
 
 Hoxie V. Carr, 698, 701 
 
 Hoy V. Hansborough, 210 
 
 V. Morris, 786 
 
CXll 
 
 INDEX TO CASES CITED OE INTRODUCED. 
 
 Hoy V. Smythies, 17, 20, 42, 332 
 
 V. Taliaferro, 549 
 
 Hubbard v. Althorp, 606 
 
 V. Cummings, 685 
 
 I'. Goodwin, 685, 701 
 
 V. Jarrell, 65, 66 
 
 V. Long, 762 
 
 V. Norton, 573, 610, 611 
 
 V. Savage, 728 
 
 V. Town, 491 
 
 Hubbell V. Currier, 722 n. 
 
 Hubbert v. Borden, 169 
 
 Hubert v. Trebrne, 141, 143, 144 
 
 V. Turner, 144 
 
 Huddlestone v. Briscoe, 131, 132 
 
 Huddock !). Wilmarth, 462 
 
 Hudgins v. Crow, 476 
 
 Hudnal v. Wilder, 714, 719 
 
 Hudson V. Bartram, 268 
 
 v. Hudson, 11, 688, 691 
 
 V. Swift, 241 
 
 V. Temple, 268 
 
 Hudspeth v. Yarnold, 239 
 
 HufiF V. McCauley, 124, 1 26 
 
 Huffman r. Hummer, 175,241,268 
 
 Huger V. Huger,' 60 
 
 Hughes, ex parte, 108, 688, 694, 695, 
 
 747 
 
 V. Bennett, 609 
 
 V. Edwards, 486, 761 
 
 V. Garner, 789 
 
 V. Garth, 788 
 
 V. Jones, 31, 305 
 
 V. Kearney, 639, 676 
 
 V. Kelly, 485, 487, 488, 489 
 
 V. Lipsoombe, ' 114 
 
 u. Lumley, 537 
 
 V. Morris, 50, 64, 152 
 
 V. Mung, 58 
 
 V. Parker, 16, 298 
 
 V. Robotham, 619 
 
 V. Sandal, 161, 169 
 
 V. United States, 762 
 
 V. Wells, 104 
 
 V. Williams, 485, 744, 746 
 
 V. AYorley, 728 
 
 V. Wynne, 430 
 
 Hugus V. Strickler, ' 569 
 
 Hull V. Click, 671, 680 
 
 V. Lyon, 786 
 
 V. Noble, 260, 261, 268, 762 
 
 V. Vaughan, 180, 181 
 
 Hull & Selby Ry. Co. v. N. E. By. 
 
 Co. 640 
 
 Hulm 1). Sandys, 378 
 
 Hulme, ex parte, 378 
 
 V. Heygate, 185 
 
 Hulme V. Shreve, 1 24 
 
 Hulmes v. Thorpe, 206 
 
 Hultz V. Wright, 158 
 
 Humble v. Bill, 658, 660, 668 
 
 w. Humble (12 Beav.), 99 
 V. Humble (24 Beav.), 477, 
 486 
 V. Hunter, ^3, 67 
 
 V. Langton, 376 
 
 Humbert v. Trinity Church, 263 
 
 Hume !'. Bentley, 17,337,347,369, 
 370, 406 n. 
 V. Pocock, 17, 369 
 
 u. Richardson, 604 
 
 Humes v. McFarlane, 462 
 
 Humfrey v. Dale, 169 
 
 Hummej- i\ Schott, 671 
 
 Humphreys v. HoUis, 206 n. 
 
 V. Pensam, 713 
 
 Humphries v. Brogden, 69 
 
 V. Home, 640, 641 
 
 V. Roberts, 118 
 
 Hundley v. Lyons, 326, 627, 628 
 
 Hungate v. Hungate, 701 
 
 Hungerford, in re, 74, 87, 92 
 
 V. Earle, 721 
 
 Hunn V. Norton, 646 
 
 Hunt V. Adams, 159 
 
 u. Amidon, 677 
 
 V. Bass, 687, 688 
 
 V. Bateman, 486 
 
 V. Bishop, 496 n., 748 
 
 V. Booth, 706 
 
 V. Brand, 628 
 
 V. Coe, 126, 152 
 
 V. Coles, 519 
 
 V. Dan vers, 600 
 
 V. Elmes, 445, 445 n., 741, 768 
 V. Hewitt, 443 n. 
 
 V. Lewin, 646 
 
 V. Livermore, 241 
 
 V. Moore, 2, 276 
 
 V. Orwig, 611 
 
 V. Peake, 69 
 
 V. Remnant, 496,n. 
 
 V. Rich, 26 
 
 V. Rousmanier, 50, 160, 663, 742 
 V. Saiyiers, 236 
 
 V. Silk, 236 
 
 Hunter, ea;^arte, . ' 39,41 
 
 V. Bales, 122, 628 
 
 V. Cobb, 569 
 
 V. Daniel, 239, 268, 271, 357 
 V. Gibbons, 401 
 
 V. Giddings, 129, 143 
 
 V. Hunter, 518 
 
 u. Marlboro, 484, 646, 701 
 
INDEX TO CASES CITED OK INTRODUCED. 
 
 cxm 
 
 Hunter v. Miller, 
 
 57 
 
 Hyne v. Campbell, 
 
 
 158 
 
 550 
 
 V. Nockolds, 
 
 489 
 
 Hynes v. Redington, 
 
 
 
 656 
 
 V. O'Neil, 
 
 337 
 
 
 
 
 
 V. Simrall, 
 
 753 
 
 
 
 
 
 V. Watson, 
 
 786 
 
 L 
 
 
 
 
 V. Wilsons, 
 
 291 n. 
 
 
 
 
 
 Huntington v. Knox, 
 
 109 
 
 Ibbottson V. Rhodes, 
 
 
 
 7 
 
 V, Mildmay, 
 
 440 
 
 Icely V. Grew, 
 
 
 
 40 
 
 Huntly V. Huntly 
 
 484 
 
 Iddings V. Bruen, 
 
 
 
 68!) 
 
 Hurd V. Curtis, 581, 583, 
 
 684 11., 593 
 
 Ida V. Stanton, 
 
 129 
 
 134 
 
 140 
 
 V. Denny, 
 
 241 
 
 Iggulden V. May, 
 
 
 169 
 
 170 
 
 V. Fletcher, 
 
 602 
 
 ■ Iglehart v. Armiger, 
 
 671 
 
 681) 
 
 6. S3 
 
 V. Hall, 
 
 611 
 
 Illinois, State of, v. Delafield, 
 
 
 48 
 
 V. Moring, 
 
 786 
 
 Imperial Gas Light & Coke Co. c. 
 
 
 Hurdt V. Courtenay, 
 
 714 
 
 London Gas Light Co 
 
 
 
 254 
 
 Hurlbutt V. Butenop, 
 
 758 
 
 Inches v. Leonard, 
 
 
 
 486 
 
 Hurley, ex parte, 
 
 60 
 
 Incledon v. Watson, 
 
 
 
 298 
 
 V. Baker, 
 
 51 
 
 Incorporated Society v. Richards, 
 
 47G, 
 
 V. Brown, 130, 134, 169, 210, 
 
 
 
 482 
 
 485 
 
 
 217, 355 n. 
 
 Ing V. Brown, 
 
 
 
 174 
 
 V. Coleman, 
 
 671 
 
 Ingalls V. Lee, 
 
 
 
 64 2 
 
 Hurst V. Hurst, 
 
 94 
 
 0. Morgan, 
 
 
 
 756 
 
 V. Means, 
 
 347 
 
 Inge V. Birmingham, &c. 
 
 Ry. 
 
 Co. 
 
 79 
 
 V. Rodney, 
 
 577 
 
 V. Lippingwell, 
 
 
 
 167 
 
 Hurt V. Blackburn, 
 
 549 
 
 Ingersbll v. Sawyer, 
 
 
 
 518 
 
 Hussey v. Roquemore, 
 
 573 
 
 Ingham v. Crasy, 
 
 
 
 158 
 
 Huston V. Cantril, 
 
 563, 719 
 
 Ingilby v. Amcott, 
 
 ' 
 
 458 
 
 462 
 
 Hutcheson v. Blakeman, 
 
 133 
 
 Ingle V. Richards, 
 
 
 192 
 
 691 
 
 Hutchins v. Hutcliins, 
 
 115 
 
 V. Partridge, 
 
 
 
 71 
 
 V. King, 
 
 125 
 
 Ingraham v. Hough, 
 
 
 
 493 
 
 V. Lee, 
 
 702 
 
 V. Hutchinson, 
 
 
 
 491 
 
 V. Sprague, 
 
 719 
 
 Ingram v. Thorp, 
 
 
 
 744 
 
 Hutchinson, ex parte, 
 
 65 
 
 Innis V. M'Crummin, 
 
 
 
 324 
 
 V. Bell, 
 
 4 
 
 Inskip's case, 
 
 
 
 70^ 
 
 V. Brown, 
 
 212, 330 
 
 Inskoe v. Proctor, 
 
 
 
 171 
 
 V. East Lancashire Ry. 
 
 Ipswich Manuf. Co. v. Cogsw 
 
 ell, 
 
 727 
 
 Co. , 
 
 86 
 
 Irby V. Irby, 
 
 
 
 68 
 
 V. Kay, 
 
 33 
 
 Ireland v. Bircham, 
 
 
 
 604 
 
 V. Manch. &c. 
 
 Ry. Co. 86 
 
 Ireson v. Denn, 
 
 
 
 196 
 
 V. Morley, 
 
 56 
 
 V. Pearman, 
 
 
 
 547 
 
 V. O'Sullivan, 
 
 488 
 
 Irick V. Fulton, 
 
 
 
 742 
 
 V. Sinclair, 
 
 645 
 
 Irnham, Lord, v. Child, 
 
 158 
 
 173 
 
 219 
 
 V. Tindall, 
 
 645, 700 
 
 Irons V. Kidwell, 
 
 
 
 728 
 
 Huthwaite's Estate, in re, 
 
 534 
 
 Irvin V. Bleakley, 40 
 
 175 
 
 241 
 
 64.S 
 
 Hutton V. Mansell, 
 
 103 
 
 V. Gregory, 
 
 
 
 241 
 
 V. Rossiter, 
 
 743 
 
 V. Smith, 
 
 727 
 
 758 
 
 761 
 
 u. Sealy, 
 
 94 
 
 Irvine V. Campbell, 
 
 
 671 
 
 680 
 
 Hyde v. Atkinson, 
 
 712 n. 
 
 V. Irvjne, 
 
 
 
 556 
 
 V. Cooper, 
 
 135 
 
 V. Kirkpatrick, 
 
 
 
 2 
 
 V. Dallaway (4 Beav 
 
 ), 19 
 
 1.'. Stone, 
 
 
 
 127 
 
 V. Dallaway (2 Hare 
 
 ), 486 
 
 Irving V. Thomas, 
 
 
 
 ■ 4 
 
 V. Dallaway (6 Jur.) 
 
 389 
 
 Irwin V. Campbell, 
 
 
 
 775 
 
 V. Edwards, 
 
 79 
 
 V. Morell, 
 
 
 
 743 
 
 V. Price, 
 
 640 
 
 Irwin's Estate, in re. 
 
 
 
 764 
 
 V. Wrench, 
 
 132 
 
 Isham V. Bennington Ii 
 
 •on 
 
 ^oni- 
 
 
 Hylliard, ex parte. 
 
 241 
 
 T P*^"^"; T, , 
 
 
 
 761 
 
 Hyndman v. Hyndman, 
 
 174 
 
 Ishmael v. Parker, 
 
 
 
 241 
 
CXIV 
 
 INDEX TO CASES CITED OR INTEODUCED. 
 
 Ithel V. Potter, 
 Ithell V. Beane, 
 Ives V. Ashley, 
 V. Hazard, 
 V. Ogelsby, 
 Ivie V. Ivie, 
 Ivory V. Murphy, 
 
 Jaboe V. McAtee, 
 Jack V. Armstrong, 
 Jackraan v. Hallock, 
 
 V. Eingland, 
 Jackson's case, 
 Jackson v. Andrews, 
 V. Ashton, 
 V. Bard, 
 i>. Barringer, 
 V. Blodget, 
 V. Bull, 
 V. Burgott, 
 V. Burtis, 
 V. Cadwell, 
 V. Camp, 
 V. Catlin, 
 r. Cator, 
 V. Craig, 
 c. Button, 
 V. Edwards, 
 V. Blston, 
 V. Feller, 
 V. Fenwick, 
 V. Garnsej', 
 V. Given, 
 V. Goodale, 
 V. Grant, 
 .V. Hanna, 
 .V. Hartwell, 
 ■ ii. Henry, 
 V. Hoft'man, 
 V. Hubble, 
 V. Jackson, 
 V. Jacob, 
 V. Johnson, 
 V. Kingsley, 
 V. Leek, 
 V. Lever, 
 V. Ligon, 
 .V. jVi'Connell, 
 ,1'. McVey, 
 V. Marsh, 
 v.. Matsdorf, 556 
 V. Mills, 
 V. Moore, 
 V. Morse, 
 
 144 
 
 660, 668 
 
 687, 688 
 
 129, 134 
 
 33 
 
 444 
 129, 134 
 
 648 
 
 728, 730 
 683 
 701 
 749 
 
 758, 759 
 211 
 180 
 324 
 197 
 556 
 727, 728, 755 
 785 
 
 713, 753 
 180 
 148 
 173 
 225 
 713 
 106 
 755 
 
 702, 706 
 596 
 713 
 753, 755, 762 
 685 
 225 
 611 
 685 
 396, 719, 720 
 556 
 556 
 
 287, 697 
 
 241 
 
 180, 480, 482 
 
 239 
 
 728 
 
 273, 293, 294 
 
 265 
 
 324 
 
 785 
 
 612 
 
 , 701, 703, 704 
 
 701 
 
 324, 701 
 -701 
 
 Jackson v. Neely, 728, 775 
 
 V. Newcastle, Duke of, 236 
 
 V. Oglander, 
 
 138, 149 
 
 ' V. Page, 
 
 728 
 
 V. Petrie, 
 
 241 
 
 D. Pierce, 
 
 151 
 
 V. Pratt, 
 
 486 
 
 V. Ringland, 
 
 703 
 
 V. Bobbins, 
 
 482 
 
 V. Roe, 
 
 788 
 
 V. Eowe, 
 
 788, 790 
 
 V. Schoonmaker, 480 
 
 V. Seeley, 
 
 701 
 
 V. Sellick, 
 
 480 
 
 V. Seward, 
 
 714 
 
 V. Sharp, 
 
 728, 755, 756 
 
 V. Speed, 
 
 241 
 
 V. Stevens, 
 
 556, 605 
 
 V. Tibbetts, 
 
 481 
 
 V. Town, 
 
 714 
 
 V. tJpdegraffe, 
 
 661 
 
 V. Vandalfsen, 
 
 , 687, 694 
 
 V. Van Valkenburgh, 755, 
 
 
 756, 762 
 
 V. Varick, 
 
 462 
 
 V. Waldron, 
 
 556 
 
 V. Walsh, 
 
 687, 695, 730 
 
 V. Warren, 
 
 758 
 
 V. Wass, 
 
 7 
 
 V. West, 
 
 727 
 
 ■V. Wheat, 
 
 482 
 
 V. Whitehead, 
 
 17, 18 
 
 V. Winslow, 
 
 556, 755, 756 
 
 V. Wood, 
 
 486 
 
 V. Woolsey, 
 
 687 
 
 V. Wright, 
 
 556 
 
 Jacob V. Kirk, 130, 
 
 136, 138, 144 
 
 Jacobs V. Peterborough & Shirley 
 
 E. R. Co. 79, 
 
 151, 152, 361 
 
 Jakes V. Sumner, 
 
 476 
 
 Jamaica Pond Aqueduc 
 
 Corp. V. 
 
 Chandler, 
 
 775 
 
 James, ex parte, 689, 
 
 691, 692, 695, 
 
 
 696, 747 
 
 V. Bird, 
 
 713 
 
 V. Dean, 
 
 711 
 
 V. Dubois, 
 
 464 n. 
 
 l: Edney, 
 
 26 
 
 M.Johnson, 174 
 
 713, 727, 728 
 
 V. Lichfield, 
 
 331, 762 
 
 V. Morey, 
 
 197 
 
 0. Morgan, 
 
 273 
 
 V. Price, 
 
 702 
 
 V. Salter, 
 
 479,489 
 
 V. Shore, 
 
 . 319 
 
 V. State Bank, 
 
 213, 215 
 
 Jamieson v. Milleman, 
 
 124 
 
INDEX TO CASES CITED OK INTRODUCED. 
 
 CXV 
 
 January v. Martin, 
 Jaques v. Huntly, 
 Jarmain v. Egelstone, 
 Jarratt v. Aldam, 
 Jarvis v. Palmer, 
 V. Rogers, 
 Jason V. Jervis, 
 Jay V. Richardson, 
 Jaynes w. Hughes, 
 Jeakes v. White, 
 Jeans v. Coo^e, 
 Jebb V. Abbot, ' 
 Jeffereys v. Small, 
 V. Smith, 
 Jefferson v. Howell, 
 Jeffery v. Stephens, 
 Jeffreys v. Machu, 
 Jefts V. York, 
 ' Jellard v. Edgar, 
 Jencks v. Alexander, 
 Jendwine v. Slade, 
 Jenkins v. Atkins, 
 V. Bodley, 
 V. Bushby, 
 V. Clinton, 
 V. Eldredge, 
 
 273, 627, 0.28 
 
 744 
 
 362,431, 561 
 
 252 
 
 160, 173 
 728 
 716 
 
 597, 750 
 482 
 401 
 
 703, 704 
 
 658, 660 
 698 
 105 
 559 
 155 
 399 
 44 
 550 
 
 701, 706 
 235 
 563 
 762 
 785 
 389 n. 
 151, 159, 174, 
 
 700, 701, 701 n., 702, 703, 
 773 
 
 V. Frink, • 1 1 
 
 V. Gething, 33 
 
 V. Herries, 63, 389, 389 n., 
 
 405 n. 
 
 V. Hiles, 264, 349 
 
 V. Hogg, 11, 42, 147, 211 
 
 V. Hughes, 389 n. 
 
 V. Hutchinson, 44, 57 
 
 V, Jones, 63, 65, 66, 68 
 
 V. Keymis, 721 
 
 V. Parkinson, 233 
 
 u. Portman, 200 
 
 V. Reynolds, 129 
 
 Jenkinson, in re, 656 
 
 V. Pepys, 15, 159 
 
 V. The State, 785 
 
 V. Watts, 184 
 
 Jenks V. Ward, 601 
 
 Jenjiyn v. Vaughan, 706 n., 714 
 
 Jenner v. Jenner, 276 
 
 Jenness v. Parker, 549 
 
 Jennings, in re. Til 
 
 V. Bond, 381, 543, 758 
 
 V. Broughton, 4, 243, 244, 
 
 376 n. 
 
 V. Moore, 756 
 
 V. Selleck, 741 
 
 Jennison v. Graves, 701, 702 
 
 Jennison v. Hapgood, 
 
 Jerome v. Scudder, 
 Jerrard v. Saunders. 
 
 687,688, 694, 
 
 695, 696 
 
 306 
 
 738, 741, 790, 
 
 791, 793 
 
 Jerritt v. Weare, 601 
 
 Jersey, Earl of, v. Briton Perry 
 
 Floating Dock Co. 672, 676 n., 
 
 677 
 
 Jervis v. Smith, 149, 151, 233 
 
 V. Tayleur, 472 
 
 Jervoise v. Clarke, 98 
 
 V. Northumberland, Duke 
 
 of, 386, 389 n., 405 n. 
 
 Jessel V. Chaplin, 321 
 
 Jeter v. Glenn, 601 
 
 Jeudwine v. Alcock, 349 
 
 Jewell!).- Porter, 523,556 
 
 V. Schroeppel, 165 
 
 V. Warner, 464 n. 
 
 Jewett V. Davis, 206 
 
 V. Palmer, 753, 787, 789 
 
 Jezeph V. Ingram, 706 
 
 Jillard v. Edgar, 752 
 
 Job u. Banister, 370 
 
 Johns V. French, 111, 519, 577 
 
 V. Mason, 225 
 
 V. Norris, 260, 685 
 
 Johnson v. Beauchamp, 179 
 
 v. Blackman, 158, 687, 688 
 
 I/. Bloodgood, 378 
 
 V. Cawthorne, 681, 682 
 
 V. Daverne, 786 
 
 V. Dodgq, 145 
 
 ji. Dorsey, 60 
 
 V. Dougherty, ' 701, 708 
 
 V. Fesemeyer, 693 
 
 V. Gallagher, 686 
 
 V. Garrett,. 99, 100 
 
 V. Gere, 549 
 
 V. Glancy, 151, lo5 
 
 V. Houldsworth, 521, 537 
 
 V. Johnson, 253, 314, 400 n., 
 
 549 
 
 V. Johnson (1 Dana), 57 
 
 V. Johnson (3 Hare, lapse), 
 
 463 
 V. Jordan, 24 n., 58 
 
 V. Kennetf, 660, 661 
 
 V. Legard, 405 n., 716, 717, 
 720, 720 n. 
 V. Lewis, 68 
 
 V. MuGruder, 667 , 
 
 V. Mafon, 563 
 
 V. Nott, 613 
 
 V. Nyce, 611 
 
 V. Petrie, 201 
 
CXVl 
 
 INDEX TO CASES CITED OE INTRODUCED, 
 
 Johnson v. Reed, 239 
 
 V. Roberts, 51 
 
 V. Ronald, 134, 700 
 
 V. St. Peter, Churchwar- 
 dens of, 182 
 V. Shrewsbury & Birming- 
 ham Railway Co. 217 
 V. Smart, 29 
 u. Smiley, 37 
 V. Stagg, 715, 728, 761, 76;? 
 V. Sullivan, 785 
 V. Telford, 185 
 V. Tuber, 324 
 V. Wyatt, 234 
 V. Wygant, 239, 241 
 Johnston v. Beard, 241 
 V. Eason, 216 
 K.Fessler, 133 
 V. Glancy, 152, 762 
 V. Gwathmey, 683 
 «. Hubbell, " 152 
 V. Jones, 206 
 V. La Motte, 1 1 
 Johnstone v. Hall, 596 
 Joiner v. Borders, 476 
 Jolifle V. Hite, 324 
 Jolland V. Stainbridge,' 546, 728, 755, 
 
 761 
 Jones, ex parte, 481 
 
 in re, 746 
 
 V. Agnew, 600 
 
 V. Bamford, 757 
 
 V. Barkley, 240 
 
 V. Belt, 316 
 
 V. Bowden, 333 
 
 V. Caswell, 11 
 
 V. Cooprider, 239 
 
 v. Croucher, 719 
 
 V. Davies, . 617, 618, 619 
 
 V. Downman, 57 
 
 c. Dyke, 44, 236, 237, 358. 362 
 V. Edney, 15, 23, 50, 159 
 
 r. Emery, 252 
 
 V. Evans, 318 
 
 u. Flint, . 125 
 
 V. Gardiner, 601 
 
 V. Gardner, 573 
 
 V. Giles, 327 
 
 V. Gt. Westt Ry. Co. 87 
 
 V. Groobham, 713 
 
 V. Ham, 203, 398 
 
 V. Hubbard, 286 
 
 V. Jones (1 Cro. & Mee.), 572 
 V. Jones (1 Kay), 445 
 
 t;. Jones (4 K. & J.),. 458 
 
 V. Jones (3 Mer.), 445 n. 
 
 D. Jones (2 Rich.), "179 
 
 Jones V. Jones (8 Sim.), 
 
 380 
 
 V. Kearney, 
 
 745 
 
 V. Keene, 
 
 5, 243 
 
 V. Lee, 
 
 211 
 
 V. Lewis, 
 
 90, 653 
 
 V. Lewis (1 De G. & Sm.), 558 
 
 v. Littledale, 53, 57 
 
 V. Lock, 721 
 
 u. Marsh, 239, 718 
 
 V. Mason, 646 
 
 V. Matthie, 63 
 
 V. Mudd, 633j 634 
 
 V. Nanney (M'Clel.), 14 
 
 V. Nanney (13 Pri.), 14, 45 
 
 V. Newman, 169 
 
 V. Noyes, 657 
 
 V. Obinchain, 721 
 
 V. Peterman, 152 
 
 V. Phelps, 727 
 
 V. Plater, 324 
 
 V. Powles, 737 
 
 V. Price, 260, 405 n., 660 
 
 V. Pugh, 786 
 
 V. Robbins, 268 
 
 V. Ryde, 549 
 
 V. Sasser, 158 
 
 V. Shackleford, 306 
 
 V. Sheriffe, 173 
 
 . V. Sluby, 160 
 
 V. Smith, 196, 762, 767, 772, 
 
 775, 781, 783 
 
 V. Stanley, 763 
 
 V. Taylor, 257, 264, 386 
 
 V. Thomas, 689, 789 
 
 V. Tifton, 1 79 
 
 V. Tuberville, 253 
 
 V. Whittaker, 714 
 
 V. Williams, 524 
 
 V. Williams (Bea.), 768, 773, 776 
 
 V. Witter, 378 
 
 V. Wood, 326, 549 
 
 Jones's Appeal, 63 
 
 Estate, in re 354 
 
 Settled Est. in re, 88, 116, 227 
 
 Jonghaus u. McCormick, 241 
 
 Jordan v. Black, 378 
 
 V. Deaton, 217 
 
 V. Hudson, 683 
 
 V. Money, 553 
 
 V. Sawkins, , 164 
 
 Jourdain v. Wilson, 577, 589 n. 
 
 Joy V. Adams, 486 
 
 V. Birch, 188 n., 200 
 
 V. Joy, 444 
 
 Joyce V, De Moleyns, 738, 794, 795 
 
 V. Hutton, 715, 718 
 
 V. Rawlins, 762 
 
INDEX TO CASES CITED OB INTRODUCED. 
 
 CXVU 
 
 Joyce V. Eyan, 
 
 251 
 
 549 
 
 Kellogg I'. Wood, 
 
 
 577, 701 
 
 V. Svvann, 
 
 
 132 
 
 Kelly V. Beers, 
 
 
 518 
 
 Joynes v. Statham, 
 
 
 160 
 
 V. Bradford, 
 
 
 315, 386 
 
 Judge, in re, 
 
 
 534 
 
 V. Burnham, 
 
 
 518 
 
 Judson V. Wass, 
 
 
 573 
 
 V. Dutch Church, 
 
 
 600, 610 
 
 Judy V. Gerrard, 
 
 
 642 
 
 V. Johnson, 
 
 
 701 
 
 Julian V. Reynolds, 
 
 
 688 
 
 u. Low, 
 
 
 611 
 
 Jumpson V. Pitchers, 350 
 
 423, 
 
 483 
 
 V. Mills, 
 
 
 744 
 
 Juniata Bank u. Brown, 
 
 
 252 
 
 V. Webster, 
 
 
 126 
 
 Justice V. Wynere, 
 
 
 740 
 
 Kelsack v. Nicholson, 
 
 
 445 n. 
 
 V. Wynne, 
 
 
 380 
 
 Kelsall V. Bennett, 
 
 
 789 
 
 Juvenal v. Jackson, 
 
 
 753 
 
 Kelsey v. Hanmer, 
 
 
 433 
 
 Juzan V. Toulmin, 
 
 
 742 
 
 Kelsey, Anne, in re, 
 
 
 473 
 
 
 
 
 Kelson v. Kelson, 
 
 ,713 
 
 714, 720 
 
 
 
 
 Kemp V. McPherson, 
 
 
 378, 658 
 
 K. 
 
 
 
 V. Sober, 
 
 
 597 
 
 
 
 
 V. West End, &c. 
 
 Ry. 
 
 Co. 78 
 
 Kain v. Old, 
 
 
 56 
 
 Kempshall v. Stone, 
 
 
 210, 233 
 
 Kane v. Bloodgood, 
 
 484 
 
 486 
 
 Kemys v. Proctor, . 
 
 
 147 
 
 V. Hood, 
 
 239 
 
 241 
 
 Kenbold v, Roadknight, 
 
 
 186 
 
 Karker v. Haverly 
 
 
 241 
 
 Kendal v. BeckQit, 
 
 
 233, 276 
 
 KaufEelt v. Bower, 
 
 
 671 
 
 Kendall, ex parte. 
 
 
 61 
 
 Kauffman v. Crawford, 
 
 
 708 
 
 V. Almv, 
 
 
 2U 
 
 V. Walker, 
 
 97 
 
 101 
 
 V. Pitts', 
 
 
 714 
 
 Kauffman's Appeal, 
 
 
 224 
 
 V. Hill, 
 
 
 27 
 
 Kay V. Curd, 
 
 130 
 
 ,134 
 
 V. Hulls, 
 
 
 757 
 
 V. Johnson, 
 
 
 233 
 
 V. Lawrence, 
 
 
 762 
 
 V. Johnston, 
 
 
 698 
 
 V. Mann, 
 
 
 701 
 
 Kaye v. Bank of Louisville, 
 
 
 646 
 
 Kendar v. Milward, 
 
 
 708 
 
 V. Waghorn, 
 
 
 167 
 
 Kendray v. Hodson, 
 
 
 57 
 
 Kealy v. Bodkin, 
 
 
 489 
 
 Kenerson v. Henry, 
 
 
 188 n. 
 
 Kean v. Koe, 
 
 
 462 
 
 Kenn v. Corbet, 
 
 
 389 
 
 Keane v. Roberts, 
 
 
 668 
 
 Kennard v. Futvoye, 
 
 
 196 n. 
 
 Kearney v. Taylor, 
 
 11 
 
 147 
 
 Kennedy v. Daly, 110 
 
 517 
 
 752, 753 
 
 Keates v. Cadogan, Lord, 
 
 220 
 
 335 
 
 V. Green, 411, 
 
 445, 
 
 742, 756, 
 
 V. Lyon, 
 
 
 596 
 
 757, 768, 769 
 
 770 
 
 771, 776 
 
 Keatinge v. Keatinge, 
 
 
 107 
 
 V. Keating, 
 
 
 703 
 
 Keaton v. Cobb, 
 
 701 
 
 .706 
 
 V. Kennedy, 
 
 
 151, 275 
 
 Keats V. Rector, 151 
 
 152 
 
 154 
 
 V. Lee, 
 
 
 133 
 
 Keech v. Hall, 
 
 367 n. 
 
 V. Scovil, 577, 584 n., 593 
 
 Keeler v. Vantuyle, 
 
 
 744 
 
 y. Wenham, 
 
 
 296 
 
 V. Wood, 
 
 
 611 
 
 Kenner v. Hord, 
 
 
 642 
 
 Keen v. Stukeley, 
 
 
 273 
 
 Kenney v. Wenham, or 
 
 (iS'^exham, 224, 
 
 Keenan u. Handley, 
 
 
 286 
 
 
 
 273, 632 
 
 Keene v. Deardon, 
 
 
 399 
 
 Kennison v. Taylor, 
 
 
 611 
 
 Keichline v. Keichline, 
 
 433 
 
 727 
 
 Kennon v. Dickens, 
 
 
 641 
 
 Keisselbrack v. Livingston, 
 
 
 160 
 
 Kenny v. Browne, 
 
 
 747, 779 
 
 Keith V. Horner, 
 
 671 
 
 6«3 
 
 V. Collins, 
 
 
 683 
 
 Kekewich w. Manning, 717 
 
 719 
 
 721 
 
 Kensington, Lord, v. Bouverie, 486 
 
 V. Marker, 
 
 
 70 
 
 Kent V. Allen, 
 
 
 386 
 
 Keller v. Leib, 
 
 
 158 
 
 V. Carcaud, 
 
 
 56, 324 
 
 Kelley v. Hill, 
 
 
 701 
 
 V. Stoney, 
 
 
 745 
 
 V. Jenness, 
 
 556 
 
 701 
 
 V. Thomas, 
 
 
 565 
 
 Kellogg V. Ingersoll, 
 
 573 
 
 610 
 
 V. Walton, 
 
 
 642 
 
 V. Kellogg, 
 
 
 180 
 
 V. Welch, 
 
 496 
 
 , 600, 608 
 
 V. Krauser, 
 
 
 378 
 
 Kenworthy v. Schofleld, 
 
 135, 
 
 136, 139, 
 
 V. Robinson, 
 
 59 
 
 577 
 
 
 143 
 
 147, 148 
 
CXVlll 
 
 INDEX TO CASES CITED OR INTRODUCED. 
 
 Kenyon v. Sutton, 184 
 
 Keogh u. Keogh, 264, 350, 353 
 
 Keon V. Magawley, 659 
 
 Keppell V. Bailey ,"585, 588, 596, 597 n., 
 
 801, 802, 803, 804, 805 
 
 Ker V. Clobery, 197, 3-21, 678 
 
 V. Dungannon, Lord, 689 
 
 Kerby v. Eiehai'dson, 611 
 
 Kern v. Chalf'ant, 556 
 
 V. Hazlerigg, 68^ 
 
 Kernaghan v. M'Nally, 390 
 
 Kerns v. Swope, 761 
 
 Kerr v. Day, 175 
 
 V. Gilmore, 174 
 
 V. Kitchen, 251, 549 
 
 V. Pawson, 372, 393, 405 n. 
 
 V. Purdy, • 241 
 
 V. Shaw, 610 
 
 Kerrison v. Dorrien, 715 
 
 Kershaw v. Kalow, 68, 66 
 
 Kester v. Rochel, , 627, 628 
 
 Ketchum v. Evertson," 236, 573 
 
 V. Stout, 324 
 
 Ketsey's case, 686 
 
 Key V. Parnham, 57 
 
 Keys V. Test, • 753, 762 
 
 Keyse u. Heydon, 17,227,337 
 
 V. Powell, 16, 476 n. 
 
 Keyzi^y's case, 195 
 
 Kibbe v. Hamilton Ins. Co. 2S0 
 
 Kidd w. Dennison, ' 175,627 
 
 Kidder v. Barr, 151, 152 
 
 V. Hunt, 151, 153, 236 
 
 V. West, 610 
 
 Kilcrease v. Lum, 753 
 
 Killian v. Watt, 482 
 
 Killick u. Flexney, 687 
 
 Kilpin V. Kilpin, 704 
 
 Kimball v. Blaisdell, 556 
 
 V. Hutchins, 714 
 
 V. Schofi; 556 
 
 V. Semple, 605 
 
 Kime v. Kime, 259 
 
 Kimmel v. McRight, 703, 706 
 
 Kimpton v. Eve, 577 
 
 Kincell v. Feldman, 701 
 
 Kinderley v. Jervis, 527, 536 n., 656, 
 
 714 
 
 Kindley v. Gray, 257, 264 
 
 Kine r. Balfe, 151 
 
 K-ing, ex parte, 196 
 
 V. Baldwin, 680 
 
 1. Bardeau, 299 
 
 V. Barrett, ' 784, 785 
 
 V. Brewer, 719 
 
 V. Brown, 358 
 
 V. Dalby, 703 
 
 King V. Denison, 
 
 704 
 
 V. Gilson, 
 
 556, 577 
 
 V. Gregory, 
 
 108 
 
 V. Hamilton, 
 
 211, 268,326 
 
 V. Hamlet, 
 
 277, 816 
 
 V. Heenan, 
 
 67 
 
 V. Holland, 
 
 685 
 
 V. Howard, 
 
 288 
 
 V. Hungeribrd Market Co. 200 
 
 V. Jones, 577, 589, 610, 611 
 
 U.Kerr, 577,612 
 
 V. King, 169, 238, 353, 354, 394, 
 
 653 
 
 V. Lane, 482 
 
 u. Leach, 202 
 
 V. Moody, 373 
 
 V. Pedly, 58 
 
 u. Pyle, 237,361,611 
 
 u. Euckman, 134, 175, 221, 260, 
 
 268 
 
 V. Savory, 253, 276, 285, 689, 690 
 
 V. Smith, 545, 623, 816 
 
 V. Turner, 201, 398 
 
 V. Whi'tely, 195 
 
 u. Wightman, 302 
 
 V. Wifson, 269, 325 
 
 V. Wycombe Ry. Co. 73, 81 
 
 King, The,'y. Boston, 150, 703 
 
 V. Pedly, 58 
 
 Kingdome v. Bridges, 706 
 
 Kingdon v. Nottle, 577 
 
 Kingsbury v. Smith, 611 
 
 Kingsford v. Ball, 698 
 
 Kingsley v. Holbrook, 125, 126 
 
 t;. Young, 331,373,374 
 
 Kingsmill v. Millard, 375, 376 
 
 King's Mortg. in re, 398 
 
 Kinloch v. Savage, 139 
 
 Kinnaird, Lord, v. Christie, 34 
 
 Kinnear v. Lowell, 606 
 
 Kinney v. Farns\yorth, 743 
 
 V. Harney, 683 
 
 Kinsley v. Abbott, 698 
 
 V. Ames, 396 
 
 Kinsman v. Kinsman, 758, 760 
 
 V. Loomis, 556 
 
 Kintrea v. Preston, 341 
 
 Kintzing v. McElrath, 5 
 
 Kinzie v. Penrose, 645 
 
 Kirk V. Clark, 720 
 
 u. Dean, 458 
 
 V. Webb, 701 n., 708 
 
 Kirkendall v. Mitchell, 577 
 
 Kirkman v. Booth, 44, 67 
 
 Kirkpatrick v. Davidson, 701 
 
 V. M'Donald, 708, 721 
 
 Kirkwood v. Lloyd, 389, 402 
 
INDEX TO CASES CITED OE INTRODUCED. 
 
 CXIX 
 
 Kirkwood v. Thompson, 
 
 
 689 
 
 Kirtland v. Pounsett, 
 
 8, 179, 
 
 362 
 
 Kirwan v. Blake, 
 
 
 265 
 
 V. Latour, 
 
 
 33 
 
 Kiser v. Heuston, , 
 
 
 727 
 
 Kisler V. Kisler, 
 
 701 
 
 708 
 
 Kissam v. Edmundson, 
 
 
 714 
 
 Kitchen v. Lee, 
 
 
 686 
 
 Kitehin v. Bartch, 
 
 
 170 
 
 Kittredge v. Bellows, 
 
 
 518 
 
 V. Emerson, 
 
 
 523 
 
 V. Warren, 
 
 
 523 
 
 Kleiser v. Scott, 
 
 675 
 
 683 
 
 Kline v. Beebe, 
 
 209 
 
 686 
 
 Kline's Appeal, 
 
 706 
 
 708 
 
 Klinitz V. Surry, 
 
 
 50 
 
 Knapp V. Alvord, 
 
 50 
 
 563 
 
 V. Lee, 
 
 
 549 
 
 V. Marlboro, 
 
 
 600 
 
 Knatchbull u. Grueber, 212, 315, 344, 
 
 347 
 
 Knepper v. Kurtz, 496, 549, 600 
 
 Knight V. Barber, 56 
 
 V. Boughton, 182 
 
 V. Bowyer, 253, 357, 484, 774 
 
 ». Boyer, 773 
 
 V. Bunn, 169 
 
 V. Crockford, 132, 142, 241, 
 
 561 
 
 V. Marjoribanks, 689 
 
 V. New England Worsted 
 
 Co. 169, 239 
 
 V. Pocock, 111 
 
 V. Waterford, Marquess of, 785, 
 
 786 
 
 V. Yarborough, 668 
 
 Knobb V. Lindsay, 273 
 
 Knoll V. Harvey, 152 
 
 Knollys v. Alcock. 186 
 
 V. Shepherd, 187, 191 
 
 Knott, ex parte, 738, 762 
 
 V. Cottee (No. 4), 99 
 
 V. Wise, 445 n. 
 
 KnoufE V. Thompson, 703 
 
 Knowles V. Michel, 126 
 
 V. Eablin, 758 
 
 Knox V. Kelly, 487, 522 n. 
 
 V. King, 139 
 
 V. Silloway, 433, 481 
 
 Knuckolls V. Lea, 244, 252 
 
 Kortz V. Carpenter, 600, 610 
 
 Kurtz V. Cummings, 138 
 
 Kutz V. McCune, 610 
 
 Kutz's Appeal, 484 
 
 Kyle V. Kavanagh, 215, 248, 251, 314, 
 
 573 
 V. Tait, 676, 753 
 
 Lacey, ex parte, 687, 689, 694 
 
 V. Ingles 554, 560, 683, 740 
 
 Lachlan u. Reynolds, 28, 104, 108, 120 
 
 Lackington w. Elliott, . 176 
 
 Lacon v. Allen, 767 n. 
 
 V. Mertins, 151, 153, 193, 633, 
 
 671 
 
 Lacy V. Arnett, 124 
 
 V. Wilson, 753 
 
 Ladd i). King, 165 
 
 V. Ladd, 501 
 
 Lade v. Lade, 701 
 
 La Farge v. Kickert, ■ 165 
 
 Lafayette Bank v. State Bank of 
 
 Illinois^ 642 
 
 Lagow V. BadoUett, 671, 675, 683 
 
 Lahey v. Bell, 100 
 
 Laidlaw v. Organ, 1 
 
 Laidler v. Young, 464 n. 
 
 Laight u. Pell, 117,120 
 
 Laird v. Birkenhead Railway Co. 1 24 
 
 u. Pim, 238, 240, 241, 361 
 
 V. Smith, 241, 260, 261 
 
 Lake v. Brutton, 4 
 
 V. Craddock, 698 
 
 V. Currie, 462 
 
 V. Dean, 8 
 
 V. Gibson, 698 
 
 Lallande i;. Wentz, 328 
 
 Lamar v. Jones, 647 
 
 Lamas v. Baily, 700 
 
 Lambert v. Sainton, 691 n. 
 
 V. Rogers, 443, 444 
 
 V. Whitelock, 569 
 
 Lamberton v. Smith, 692 
 
 Lamond v. Davall, 39 
 
 Lamplugh v. Hebden, 232 
 
 V. Lamplugh, 703, 704 
 
 Lampman v. Milks, 24 n., 58 
 
 Lampon v. Corke, 681 n. 
 
 Lancaster v. De Trafford, 234 
 
 V. Dolan, 713, 714 
 
 Lancaster & York Ry. Co. in re, 89 
 
 Lancaster, &c. Ry. Co. v. London 
 
 & N. W. Ry. Co. 76 
 
 Landes v. Brant, 762 
 
 Landon v. Morris, 759 
 
 Landrum v. Hatcher, 462 
 
 Land's Trust, in re, 90 
 
 Lane v. Debenham, 20, 405 n., 664 
 u. Dighton, 708 
 
 V. Ewing, 700, 721 
 
 ~ - 171 n. 
 
 761, 796 
 
 V. Jackson, 
 I'. McKeen, 
 
 206 
 
cxx 
 
 INDEX TO CASES CITED OE INTRODUCED. 
 
 Lane v. Miller, 
 
 '■■ Shackford, 
 0. Smith, 
 V. Tidball, 
 Lanesborough v. Kilmaine, 
 Lanesborough, Lady, v. Kilmaine 
 
 Lord, 
 Lang V. Gale, 
 Langdale, Lady, v. Briggs, 
 Langdon v. Doud, 
 
 U.Keith, 160,171 
 
 V. Woolfolk, 175 
 
 Langfielde v. Hodges, 702 
 
 Langford v. Brighton, &c. Ry. Co 
 
 V. Cummirigs, 
 
 V. Pitt, 
 
 V. Selmes, 
 
 Langford's Trusts, in re, 
 
 Langhorne v. Harland, 
 
 Langley v. Brown, 
 
 V. Fisher, 
 
 V. Oxford, Lord, 
 Langmead's Trusts, 
 Langstaff u. Nicholson, 
 Langstroth v. Toulmin, 
 Langton v. Horton, 
 
 V. Langton, 
 
 V. Langton (18- Jur.), 
 Langworthy v. Smith, 
 Lanham v. Pirce, 
 Lansdown v. Elderton, 
 
 I . Lansdown, 
 Lansdowne v. Beauman, 
 Lansing v. Cole, 
 
 i: M'Pherson, 
 Lant V. Peace, 
 Lanyon v. Toogood, 
 Lapsley v. Lapsley, 
 Laraway v. Perkins, 
 Larkin v. Rosse, Lord, 374, 393, 405 n 
 Larkins i). Rhoades, 701, 702 
 
 Larrowe v. Beame, 791 
 
 Lasala v. Holbrook, 59 
 
 Laselle v. Barnett, 761 
 
 Laslett V. CliSe, 94 
 
 Lassels v. Catterton, 615 
 
 Lassiter v. Cole, 713 
 
 Latey, ex parte, 675 
 
 Latham, ea; ;t)arte, 273 
 
 V. Morrow, 10 
 
 V. Smith, 566, 569 
 
 Lathrop V. Bank of Scioto, 685 
 
 V. Gilbert, 708 
 
 Latimer v. Batson, 706 
 
 Latouche v. Dunsany, Lord, 728 
 
 Latt V. Booth, 209 
 
 Lattimore v. Harsen, 158 
 
 124 
 122, 153,236 
 176 
 264 
 788 
 
 788 
 257 
 195 
 743 
 
 87 
 
 158 
 
 184, 192, 264 
 
 16, 29, 405 n. 
 
 504 
 
 536 
 
 173 
 
 693 
 
 669 
 
 658 
 
 134, 290 
 
 48 
 
 517, 527 
 
 197 
 
 479 
 
 158 
 
 756 
 
 102 
 
 355 
 
 ■ no 
 
 129 
 114 
 571 
 127 
 464 n. 
 361 
 
 245 
 
 Laurens v. Lucas, 392, 658 
 
 Laurence v. Austin, 234 
 
 V. Stratton, 728 
 
 Laurie v. Laurie, 735 
 
 Laussat v. Lippincott, 44 
 
 Lautour, ex parte, 741 
 
 Lavender v. Blackstone, 721 
 
 V. Stanton, 659 
 
 Lavery v. Turley, 125 
 
 Law, in re, 71 
 
 V. Bagwell, 484 
 
 V. Urlwin, 31, 300, 405 n., 620 
 
 Lawall y. Rader, 158 
 
 Lawder v. Blackford, 213 
 
 Lawes ». Bennett, 187 
 
 V. Lush, 405 n. 
 
 Lawless v. Cdllier, 611 
 
 V. Mansfield, 355, 689 
 
 Lawrence v. Chase, 358 
 
 </. Dale, ' 252, 345 
 
 V. Dole, 158, 239, 241, 573 
 
 V. Fairhaven, 492 
 
 V. Galsworthy, 689 
 
 V. Halliday, 1 1 5 
 
 u. Knowles, 64, 260 
 
 V. Stratton, 728, 753, 755 
 
 1'. Taylor, 57, 145 
 
 V. Tucker, 755, 756, 757, 762, 
 
 781 
 
 Lawrenson v. Butler, 307 
 
 Lawry v. Williams, 556, 727 . 
 
 Laws V. Bennett, 191 
 
 Lawson v. Langley, 492 
 
 V. Laude, 159 
 
 V. Lovejoy, 686 
 
 Lawton v. Gordon, 713, 714 
 
 Layard v. Maud, 767 
 
 Laythoarp o. Bryant, 129, 137, 439 
 
 Lazarus v. Bryson, 687, 688, 695 
 
 Lazell V. Lazell, 645 
 
 Lea V. Barber, 127 
 
 V. Polk Co. Copper Co. 762 
 
 Leach u. Ansbacher, 762 
 
 V. Dean, 720 
 
 V. Fobes, 210 
 
 r. Forney, 206 
 
 V. Leach, 151, 621, 699 
 
 <■. MuUett, 30, 31 
 
 Leader v. Ahearne, 743 
 
 Leake v. Leake, 517 
 
 !'. Morrice, 151, 153 
 
 Leakins v. Clissell, 2 
 
 Learned v. Riley, • 727 
 
 Leary v. Durham, 600 
 
 Leathby v. Trench, 182 
 
 Leathern v. Allen, 17, 337, 372, 382 
 
 Leavitt v. Beirne, 70 
 
INDEX TO CASES CITED OE INTRODUCED. 
 
 CXXl 
 
 Leavitt v. Lamprey, 458 
 
 V. Worcester," 658 
 
 Lcchmere v. Brasier, 108, 264 
 
 i;. Carlisle, Earl of, 708, 709, 
 
 710 
 
 V. Leohmere, 816 
 
 Lecoy v. Mogford, 28 
 
 Ledyard i-. Butler, 713, 720 
 
 V. Manning, 239 
 
 Lee, ex parte, 65 
 
 V. Alexander, 159 
 
 V. Arnold, 585 
 
 V. Dean, 361, 362 
 
 V. Flood, 703 
 
 V. Getty, 556 
 
 V. Green, 524 n., 706 n., 729 
 
 V. Griffin, 136 
 
 V. Hemingway, 290 
 
 V. Hewlett, 378 
 
 V. Kilburn, 199 
 
 v. Kirby, 161,173,211,212,273 
 
 V. Lee, 9, 9 n. 
 
 V. Mahoney, 138 
 
 V. Meeker, 1 24 
 
 V. Munn, 362 
 
 V. Porter, 7 
 
 V. Prindle, 646 
 
 V. Risden, 126 
 
 V. Russell, 361 
 
 V. Stone, 738 
 
 Leech v. Leech, 659 
 
 Leedham v. Chawner, 63 
 
 Leeds v. Cameron, 728 
 
 Leeds, Duke of, v. Amherst, Lord, 253 
 
 Lees V. Nuttall, 48 
 
 Lefevre v. Laraway, 114, 117 
 
 V. Le Fevre, 124, 158 
 
 Lefferson v. Dallas, 122, 152, 153 
 
 Leffingwell u. Elliott, 611 
 
 Lefroy v. Lee, 181 
 
 V. Lefroy, 115, 118 
 
 Legal V. Miller, 165 
 
 Leger v. Bonaffe, 742 
 
 Leg^ V. Belfast, &c. Ry. Co. 78 
 
 Legge V. Croker, 328, 334 
 
 Leggett V. Dubois, 701, 702 
 
 V. Edwards, 260 
 
 Leggott o. Metropolitan Railway 
 
 Co. 179 
 
 Lehmann v. McArthur, 234 
 
 Leigh V. Crump, 211 
 
 V. Lloyd, 396 
 
 V. Winter, 721 
 
 Leiper v. Hoffman, 701 
 Leisenring v. Black, 687, 688, 689, 093 
 
 Leitch V. Wells, 768 
 
 Leland v. Gassett, 1 24 
 
 Leland v. Griffith, 
 
 115 
 
 V. Stone, 
 
 611 
 
 Leman, ex parte, 
 
 741 
 
 V. Whitley, 
 
 G45, 700, 702 
 
 Lemay v. Bibeau, 
 
 719 
 
 V. Poupenez, 
 
 755 
 
 Lemberoy v. Helstaine, 
 
 623 
 
 Lemon v. Staats, 
 
 727 
 
 Lempster, Lord, v. Pomfret, Lord, 444, 
 
 446 n. 
 Lench v. Lench, 701, 701 n., 702, 708 
 Lenehan v. M'Cabe, 728, 756, 757 
 
 Le Neve v. Le Neve, 728, 755, 756, 761 
 Lenham v. May, 261, 553 
 
 Lennard v. Robinson, 67 
 
 Lennon v. Napper, 212, 260 
 
 Leominster Canal Co. v. Shrews- 
 bury, &c. Ry. Co. 73, 76, 77, 80, 86 
 Leonard v. Dyer, 239 
 
 V. Leonard, 246, 355, 492 
 
 V. New York, &c. Tel. Co. 130 
 V. Vredenburgh, 168 
 
 Lerned v. Johns, 143, 169 
 
 V. Wannemacher, 128, 129, 13^, 
 138, 140, 142, 148 
 Leroux u. Brown, 128,139 
 
 Lerow v. Wilmarth, 714 
 
 Lervers v. Shaftesbury, Earl of, 234 
 Lesassier v. Dashiell, 324 
 
 Lesley v. Rosson, 127 
 
 Leslie v. Tompson, 324, 326, 326 
 
 Lester I'. Bartlett, 126 
 
 V. Kinne, 161 
 
 Lestrade v. Barth, 762 
 
 Lesturgeon i;. Martin, 346 
 
 Letcher v. Letcher, 701, 702 
 
 V. Woodson, 361 
 
 Lethbridge v. Kii-kman, 16, 41 n., 325, 
 337, 390,476 
 Lett V. Homer, 169 
 
 Leuty V. Hillas, 215, 236, 251, 319, 326 
 Levers v. Van Buskirk, 786 
 
 Lever, Sir Darcy, v. Andrews, 701 
 
 Levy V. Cohen, 133 
 
 V. Haw, 236 
 
 V. Lindo, 268 
 
 V. Pendergrass, 14, 216 
 
 Lewes ». Hill, 709 
 
 Lewin v. Guest, 320, 425, 650, 652 
 
 Lewis, ex parte, 63, 688 n. 
 
 V. Baird, 656 
 
 V. Bond, 297, 762 
 
 II. Bradford, 753 
 
 V. Braithwaite, 16 
 
 V. Campau, 569 
 
 V. Campbell, 677, 611 
 
 0. Covillaud, 683 
 
cxxu 
 
 INDEX TO CASES CITED OE INTRODUCED. 
 
 Lewis V. Daacombe, 489, 526 
 
 V. Duncombe (29 Beav.), 478 
 V. Fielding, 790 
 
 V. Harris, 611 
 
 V. Herndon, 386 
 
 V. Hillman, 689, 690 
 
 V. Houston, 254 
 
 V. James, 457 
 
 V. Lane, 701 
 
 V. Lechmere, Lord, 224, 262, 
 268, 273 
 V. Love, 713, 714 
 
 V. Loxham, 646 
 
 V. M'Lemore, 3, 243 
 
 V. Madocks, 708 
 
 V. Mew, 758 
 
 V. Nicholson, 57, 170 
 
 V. Payn, 167 
 
 V. PliiUips, 753 
 
 V. Rees, 483, 714 
 
 V. Robinson, 702 
 
 V. South Wales Ry. Co. 92, 632 
 V. Street, 25 
 
 I'. Thomas, 482, 485 
 
 V. Woods, 213 
 
 Ley V. Peter, 481 
 
 Leyland v. Illingworth, 213 
 
 V. Illingworth (6 Jur. 
 
 N. S.), 31 
 
 V. Illingworth (29 L. J. 
 N. S.), 31 
 
 Liber u. Parsons, 611 
 
 Lichden v. Winsmore, 617 
 
 Lidbetter v. Smith, 101 
 
 Liddell c. Sims, 549 
 
 Life Assoc, of Scotland v. Siddall, 252, 
 253, 485, 669 
 Lifibrd's case, 453 n. 
 
 Liggat V. Hart, 462 
 
 o. Wall, 749 
 
 Lightburne v. Swift, 110 
 
 Lightfoot V. Heron, 212 
 
 Lightner v. Mooney, 727 
 
 Ligon V. Alexander, 671, 681 
 
 Lill V. Robinson, 648 
 
 Lillard v. Ruckers, 728 
 
 Lillle u. Legh, 297 
 
 Lilly V. Osborn, 705 n. 
 
 Lincoln v. Wright, 63, 149, 152, 174, 
 
 703, 755 
 Lincoln, Lord, v. Arcedeckne, 386, 
 
 405 n. 
 Lincolnshire Railw. Act, in re, 85 
 
 Linden, ex parte, 671 n. 
 
 Lindley v. Lukin, 361 
 
 Lindsay v. Lynch, 135, 152, 154 
 
 u. Talbot, 785 
 
 Lindsey v. Gt. Northern Ry. Co. 75 
 
 V. Rankin, 753 
 
 Linehan v. Cotter, 304 
 
 V. Deeble, 493 ' 
 
 Lingan v. Henderson, 645, 679 
 
 Lingley v. Cutler, 40 
 
 Lining v. Peyton, 658, 659, 660 
 
 Linkous v. Cooper, 337 
 
 Linn v. Barkey, 160 
 
 Linscott V. Buck, 175, 271 
 
 V. Mclntire, 126 
 
 Linsey v. Rumsey, 556 
 
 Linwood, ex parte, 688 
 
 Lippincott v. Smyth, 74 
 
 Lisburne, Earl of, v. Davies, 376 
 
 Lister v. Lister, 694 
 
 V. Turner, 720 
 
 Lister's Hospital, in re, 91 
 
 Litchfield v. Brown, 635, 650 
 
 V. Cudworth, 687,. 688, 692, 
 
 694 
 
 Lithgow V. Kavfenagh, 458, 464 n. 
 
 Little, ex parte, 37 
 
 V. Brown, 675 
 
 V. Paddleford, 573 
 
 D.Pearson, 134, 179 
 
 Littlefield D. Cole, 70 
 
 V. Tinsley, 386, 548 
 
 Little Steeping, Rector of, ex parte, 83 
 
 Livermore v. Aldrich, 701 
 
 V. Boutelle, 518, 714 
 
 V. Hershell, 4 
 
 V. Johnson, 254 
 
 Liverpool Bank u. Eccles, 129,132 
 
 Liverpool Dock Acts, ire re, 89 
 
 Liverpool, &c. Ry. in re, 90 
 
 Livesey i'. Harding, 379, 445 
 
 Livingston u. Dean, 378 
 
 V. Hubbs, 378 
 
 V. Livingston, 701 
 
 V. Mclnlay, 728 
 
 u. Newkirk, 177,183 
 
 V. New York, 25 
 
 V. Peru Iron Co. 5, 211,214 
 
 V. Ralli, 288 
 
 V. Tompkins, 221 
 
 Livingstone v. Byrne, 159 
 
 Llewellyn v. Badeley, 445 n. 
 
 lAoydi, ex parte, 33,381 
 
 V. Attwood, 767 
 
 V. Baldwin, 658, 659, 660 
 
 V. Banks, 8, 755, 762 
 
 V. Carter, 701 
 
 V. Collett, 261, 643 
 
 V. Crispe, 337, 371 
 
 V. Davies, 189 
 
 V. Farrell, 251, 573 
 
INDEX TO CASES CITED OE INTRODUCED. 
 
 CXXlll 
 
 V. Gordon, 
 
 481 
 
 V. Griffith, 
 
 106 
 
 V. Jewell, 
 
 549 
 
 V. Johnes, 
 
 110 
 
 0. Jones, 
 
 633 
 
 V. Lloyd, 
 
 205, 258, 456 
 
 V. London, Chatham & Do- 
 ver Railway Co. 596,597 
 V. Lynch, 702 
 
 V. Kead, 704, 706 
 
 V. Rippingale, 268 
 
 V. Spillet, 701, 701 n. 
 
 V. Tomkies, 600 
 
 V. Wilkes, 266 
 
 Loaring, ex parte, 676 
 
 Lobh V. Stanley, 142, 144 
 
 Lobdell u. Hayes, 457 
 
 Lock V. De Burgh, 182 
 
 V. Furze, 358, 361 
 
 Locke V. Lomas, 660, 663 
 
 V. Palmer, 174, 199 
 
 Lockey o. Lockey, 151 
 
 Lockhart v. Hardy, 66 
 
 Lockington's case, 465 
 
 Lockwood, ex parte, ■ 82 
 
 V. Sturdevant, 577, 601 
 
 Lodge V. Lyseley, 405 u., 519 
 
 Loeschigk u. Hatfield, 714 
 
 Loft, in re, 61 
 
 Lofter V. Heath, 169 
 
 Logan V. Le Mesurier, 135 
 
 V. Moore, 556 
 
 u. Moulder, 577,610,611 
 
 V. Steele, 556 
 
 Lokerson v. Stillwell, 713 
 
 London Ass. Co. Port, of, case, 7 
 
 London & Bu-mingham Ry. Co. 
 
 «. Winter, 154,160,217 
 
 London, Bishop of, ei; parte, 91 
 
 London Bridge Acts, in re, 84, 563, 
 
 575 
 London & Brighton Ry. Co. in re, 89 
 London & Brighton Ry. Co. v. Lon- 
 don & S. W. Ry. Co. 76 
 London & Brighton Ry. Co. v- 
 
 Shropshire Ry. Co. 91 
 
 London, City of, v. Dias, 14 
 
 W.Richmond, 273,804 
 London, Corp. of, v. Southgate, 233 
 London Dock Co. in re, 472 
 
 V. Sinnott, 77 
 
 London & N. W. Ry. Co. m re, 90, 91 
 London & N. W. Ry. Co. v. Lan- 
 caster, Corp. of, 82 n. 
 London & Southampton Ry. Co. 
 
 in re, 86 
 
 Long V. Clopton, 555 
 
 Long «. Collier, 326, 395, 405 n., 650 
 
 V. DoUarhide, • 761 
 
 V. Fletcher, 299 
 
 V. Long, 658 
 
 V. Steiger, 701 
 
 V. White, 206 
 
 Longchamps v. Fawcett, 169 
 
 liOngfield, ex parte, 82 
 
 Longmate v. Ledger, 275 
 
 Longshore v. Jack, 4 
 
 Longstaff v. Meagoe, 33 
 
 Longworth's Est. in re, 87 
 
 Lonsdale, Lord, v. Gaskarth, 135 
 
 Loomis V. Bedel, 433, 600, 605, 611 
 
 V. Loomis, 378, 701 
 
 Lord !•. Belknap, - 239 
 
 V. Colvin, 225 
 
 V. Go'ddard, 4 
 
 V. Lord, 109, 121 
 
 V. Stephens, 297, 644 
 
 V. Underdunck, 151 
 
 Loring v. Cooke, 738 
 
 V. Otis, 25 
 
 Losey v. Simpson, 753, 756, 761, 762 
 
 Loss V. Obry, 171 
 
 Lot V. Thomas, 610 
 
 Lott V. Wyckoff, 464 n. 
 
 Lougher v. Williams, 577 
 
 Lounsbury v. Purdy, 701 
 
 Lovegfove v. Cooper, 114 
 
 Lovelace, in re, 556 
 
 Lovell V. Briggs, 688 
 
 V. Hicks, 216, 244, 253, 553 
 
 V. Smith, 492 
 
 Loveren v. Lamprey, 189, 462 
 
 Loveridge v. Cooper, 378 
 
 Lovett V. Lovett, 440 
 
 Low w. Barchard, 275 
 
 V. Blodgett, 161 
 
 V. Holmes, 693 
 
 V. Marshall, 239, 241 
 
 V. Treadwell, 165, 212 
 
 Lowe V. Carpenter, 491, 492 
 
 V. Manners, 352 
 
 V. Swift, 156 
 
 Lowell V. Middlesex Mut. Fire Ins. 
 
 Co. ' 175 
 
 Lowe's Settl. in re, 380, 486 
 
 Lower v. Winters, 126 
 
 Lowes V. Lush, 176, 389 n., 396, 402, 
 
 661 
 
 Lowndes v. Bray, 241, 364, 373 
 
 V.Lane, 211,321,328,332 
 
 Lowry v. Cox, 747 
 
 u. Dufferin, 136 
 
 V. Fisher, 714 
 
 B.Mehaffey, 129 
 
CXXIV 
 
 INDEX TO CASES CITED OR INTRODUCED. 
 
 Lowry V. Tew, 151, 789, 790 
 
 Lowtherj;. Carleton, 741, 753, 757 
 
 V. Carrill, 144 
 
 V. Commonwealth, 611 
 
 V. Lowther, 273, 668, 687 
 
 Lowther, Sir James, v. Andover, 
 
 Lady, 267, 627 
 
 Loyd V. Griffith, 574 
 
 w. Malone, 11 
 
 Loyes v. Rutherford, 331 
 
 Lucas, ex parte, 64, 120 
 
 K.Bond, 199 
 
 V. Dennison, 486 
 
 V. James, 2, 58, 132, 133, 142 
 
 V. Wilkinson, 565 
 
 Luciana v. Amer. Fire Ins. Co. 158 
 
 Luckett V. Williamson, 149, 154, 264 
 
 Lucy V. Bundy, ' 153 
 
 Ludlow V. Cooper, 253 
 
 Ludlow, Mayor of, v. Charlton, 145 
 
 Ludwick u. Huntzinger, 386 
 
 Luff V. Lord, 688 
 
 Luff kin V. Nunn, 750, 751 
 
 Luf kin V. Curtis, 458 
 
 Lukey v. Higgs, 38, 596 
 
 V. O'Uonnell, 274, 642 
 
 Lumb V. Jenkins, 685 
 
 Lumley v. Reisbeck, 181 
 
 Lumsden «. Fraser, 177 
 
 Lund i;. Lund, * 174 
 
 V. Woods, 457 
 
 Lunt I'. Holland, 25 
 
 Lupton V. Janney, 253 
 
 V. Lupton, 658 
 
 Lush !'. Druse, 324 
 
 V. Wilkinson, 706, 712, 714 
 
 Lush's Est. in re, 457, 458 
 
 Lusk V. Hopper, 676 
 
 Luther v. Kidby, , 184 
 
 Lutkins v. Leigh, 679 n., 680 
 
 Lutwych V. VVinford, 110, 405 n. 
 
 Luxton V. Robinson, 363 
 
 Lyddalw. Weston, 392 
 
 Lyddon v. Moss, 253, 286, 689 
 
 Lyle V. Bradford, 758 
 
 V. Ducomb, 728 
 
 V. Richards, 169 
 
 V. Yarborough, Lord, 652 
 
 Lyman v. Cessford, 714 
 
 u. Little, 171 
 
 V. United Ins. Co. 171 
 
 Lynch v. Clarke, 685 
 
 V. Cox, 701 
 
 V. Hill, 171 n. 
 
 V. Joyce, 110 
 
 V. Morse, 566 
 
 0. Utica Ins. Co. 682 
 
 Lynde u. Budd, 
 
 686 
 
 Lyndsay v. Lynch, 
 
 160 
 
 Lyne v. Lyne, 
 
 749 
 
 Lynn v. Chaters, 
 
 676 
 
 Lyon V. Annable, 
 
 236, 298 
 
 V. James, 
 
 689 
 
 V. Lyon, 
 
 688 
 
 V. Marclay, 
 
 484 
 
 V. Richmond, 
 
 742 
 
 Lysney v. Selby, 4, 356, 367 n., 549, 
 
 550 
 
 Lyster v. Dolland, 518, 698 
 
 t'. Mahony, '457 
 
 Lytton V. Great Northern Ry. Co. 74 
 
 M. 
 
 Maberley v. Robins, 400 n., 640 
 
 M'Allister v. Montgomery, 668 
 
 V. Eeab, 549 
 
 McAlpin V. Burnett, 671, 683 
 
 V. Woodruff, 611 
 
 M'Anulty v. Bingaman, 727 
 
 Macartney v. Blackwood, 642 
 
 V. Calhoun, 688 
 
 M'Auley v. Clarendon, 52? 
 
 McBee v. Loftes, 753 
 
 MoBeth V. McBeth, 464 
 
 Macbride v. Moore, 482 
 
 V. Weekes, 262, 269, 271, 347 
 
 McCall V. Yard, 762 
 
 MoCamant u. Patterson, 727 
 
 M'Candlish v. Keen, 676 
 
 M'Cann v. Forbes, 54, 628 
 
 McCarron u. Cassidy, 174 
 
 M'Carthy v. Kingston, Lord, ' 378 
 
 McCarty o. Kyle, 211 
 
 I V. Leggett, 577, 610 
 
 M'Caskle v. Amarine, 727, 762 
 
 McCesky v. Leadbetter, 775 
 
 Macclesfield, Lord, o. Blake, 1 1 9 
 
 M'Clintoch, in re, 504 
 
 M'Clintock v. Graham, 33 
 
 McClure v. Gamble, 611 
 
 V. Harris, 675 
 
 V. McClure, 154 
 
 V. Purcell, 713 
 
 M'Comb V. Kankey, 103 
 
 V. Wright, 42, 53, 142, 145, 
 
 147, 264, 349, 386 
 
 McConike v. Sawyer, 714 
 
 McConnell v. Brillharte, 134 
 
 V. McConnell, 646 
 
 McCool V. Jacobus, 548 
 
 McCormick v. Malin, 276 
 
 V. Wheeler, 767 
 
INDEX TO CASES CITED OR INTRODUCED. 
 
 cxxv 
 
 McCown V. Jones, 
 
 
 675 
 
 M'Cracken v. Sanders, 
 
 287, 
 
 747 
 
 M'Crady v. Brisbane, 
 
 
 577 
 
 McCi-aw V. Davis, 
 
 
 275 
 
 McCrea v. Longstreet, 
 
 
 324 
 
 V. Marsh, 
 
 
 124 
 
 ii.'Purmont, 
 
 611 
 
 645 
 
 M'Cready v. Thomson, 
 
 
 491 
 
 McCreight v. Foster, 
 
 175 
 
 177 
 
 McCubbin v. Cromwell, 
 
 
 700 
 
 M'Culloch V. Cotbach, 
 
 
 118 
 
 L-. Girard, 
 
 
 168 
 
 V. Gregory, 101, 114, 
 
 120, 
 
 
 iU, 
 
 551 
 
 V. Gregory (3 
 
 K. & 
 
 
 J.), 
 
 440 
 
 549 
 
 V. Scott, 
 
 
 252 
 
 V. Sender, 
 
 
 462 
 
 M'Daniel v. Moody, 
 
 
 33 
 
 M'Dermed v. M'Cortland, 
 
 
 213 
 
 McDole V. Purdy, 
 
 
 671 
 
 M'Donald v. Hanson, 
 
 69 
 
 377 
 
 V. M'Donald, 
 
 
 700 
 
 u. McLeod, 
 
 
 174 
 
 u. Neilson, 
 
 
 253 
 
 V. Sims, 
 
 484 
 
 486 
 
 V. Walker, 
 
 386,405 n. 
 
 M'Donnell v. Dunlap, 
 
 
 361 
 
 V. Harding, 
 
 
 667 
 
 V. M'Keaty, 
 
 
 479 
 
 V. M'Kinty, 
 
 476 n. 
 
 McDonough v. Murdock, 
 
 
 701 
 
 McDowell V. Chambers, 
 
 
 142 
 
 V. Goldsmith, 
 
 
 484 
 
 V. Heath, 
 
 
 484 
 
 V. Simms, 
 
 
 10 
 
 M'Elwee v. Sutton, 
 
 
 714 
 
 M'Fadden v. Jenkyns, 
 
 
 .719 
 
 M'Fall V. Sherrard, 
 
 
 728 
 
 McFarland v. Stone, 
 
 
 482 
 
 M'Farlane v. Griffith, 
 
 
 378 
 
 M'Farson's Appeal, 
 
 
 129 
 
 M'Ferran v. Taylor, 
 
 3 
 
 233 
 
 McGahee w. Sneed, 
 
 
 789 
 
 McGavock V. Woodlief, 
 
 
 47 
 
 M'Gee v. Beall, 
 
 
 679 
 
 M'Ghee v. Morgan, 
 
 
 275 
 
 McGibbeny v. Burmaster, 
 
 
 155 
 
 M'Gill, in re, 
 
 
 683 
 
 M'Ginn v. ShaefFer, 
 
 
 688 
 
 McGonigal v. Plummer, 
 
 
 676 
 
 McGovern «. Hoesback, 5 
 
 66, 569 
 
 572 
 
 MoGowan v. MoGowah, 
 
 
 701 
 
 Mo Gown V. Sandfbrd, 
 
 
 120 
 
 McGrann v. North Lebanon B. R. 
 
 Co. 158, 165 
 
 M'Gregor, ex parte, ^ 68, 99 
 
 M'Gregor v. Brown, 728, 779 
 
 V. Deal, &c. By. Co. 76 
 
 V. Gardner, 701 
 
 V. McGregor, 758 
 
 M'Guire v. Grant, 59 
 
 V. McGowen, 701, 702 
 
 V. Miller, 713 
 
 V. Ramsey, 701 
 
 Mclntire v. Hughes, 721 
 
 M'Intosh V. G. W. ijy. Co. 443 n., 
 
 445 n. 
 
 MTntyre o. Pai'ks, 133 
 
 M'Jilton V. Commonwealth, 672 
 
 Mack V. Bragg, 122 
 
 McKay v. Carrington, 175, 218, 306 
 
 V. Melvin, 627, 628 
 
 McKechnie v. Sterling, 175, 291 
 
 M'Kean v. Reid, 315 
 
 M'Kee v. Brandon, 361, 611 
 
 V. Phillips, 151, 152 
 
 I'. Wilcox, 762 
 
 V. Young, 691 
 
 McKeen v. Beaupland, 241 
 
 M'Kellip V. M'llhenny, J 24 
 
 McKendrie v. Lexington, 556 
 
 Mackey v. Collins, 610 
 
 M'Kim V. Moody, 254, 747 
 
 McKinley v. Irvine, 688 
 
 M'Kinney v. Pinkard, 273, 275 
 
 u.. Watts, 611 
 
 M'Kinnon v. Sterrett, 628 
 
 V. Stewart, 523 
 
 V. Thompson, 183, 184 
 
 Mackintosh v. Barber, 69 
 
 V. Townsend, 699 n. 
 
 McKinzie v. Perrill, 762 
 
 McKleroy v. Tulane, 232 
 
 Mackley v. Pattenden, 64 
 
 McKnight v. Brady, 671 
 
 V. Bright, 680 
 
 McKown V. Whitmore, 254 
 
 Mackrell v. Hunt, 107, 439, 631 
 
 Mackreth v. Marlar, 267 
 
 V. Symmons, 671, 673, 675, 
 
 676, 676 n., 679, 680, 
 
 682 
 
 MacKubin v. Clarkson, 151 
 
 McLarney v. Pettigrew, '124 
 
 McLarren v. Brewer, 708 
 
 McLaurie v. Thomas, 671, 680 
 
 M'Lean v. Dunn, 147 
 
 V. Nicoll, 134 
 
 McLearn v. McLellan, 195, 671, 680 
 
 McLellan v. Cumberland Bank, 158 
 
 MoLelland v. Creswell, 324 
 
 McLenan v. Sullivan, 701 
 
 M'Leod V. Drummond, 668 
 
CXXVl 
 
 INDEX TO CASES CITED OR INTRODUCED. 
 
 M'Lure v. Ripley, 249 
 
 McMahan v. Stewart, 158 
 
 M'Mahon v. Spangler, 161 
 
 MoMannus v. State, 786 
 
 McMechan v. Griffing, 728, 755, 762 
 McMeekin v. Edmonds, 5 
 
 M'Minn v. M'Connell, 543, 547 
 
 0. Phipps, 11, 118 
 
 McMuUen v. O'Reilly, 669 
 
 V. Riley, 127 
 
 M'Murray v. Spicer, 134, 268, 345 
 
 McNair v. Compton, 358, 361, 611 
 
 V, Schwartz, 179 
 
 MacNamara v. Arthur, 235, 364 
 
 V. Williams, 232 
 
 McNaughton v. Partridge, 252 
 
 McNeal v. Emerson, 1^6 
 
 McNear v. McComber, 605 
 
 M'Neely v. Rucker, 761 
 
 McNeil V. Magee, 211, 727, 737, 761, 
 
 787 
 
 MacNeill v. Cahill, 276 
 
 V. Jones, 151 
 
 M'Neillie v. Acton, 658, 661 
 
 M'Neven v. Livingston, 251, 345 
 
 McNew V. Tobey, 672 
 
 M'Nicol V. Kaj', 650 
 
 McPherson v. Housel, 758 
 
 V. Rathbone, 239 
 
 M'Queen v. Earquhar, 315, 394, 395, 
 
 405 n., 643, 649, 780 
 
 McRae v. London, Brighton, & 
 
 South Coast Railway Co. 233 
 
 McRaven u. McGuire, 727,728 
 
 M'Ree v. Alexander, 481 
 
 M'Tear M. Buttorf, 671 
 
 Mactier v. Frith, 1 33 
 
 M'Wliorter v. Huling, 518 
 
 Maddeford v. Austwick, 275 
 
 Maddera v. Smith, 236 
 
 Maddison v. Andrews, 702, 706 
 
 V. Chapman, 707 
 
 Maddox v. Maddox, 756 
 
 Madeley v. Booth, 29, 31, 300 
 
 Madison v. Chinn, 210 
 
 Magawley's Trust, re, 714 
 
 Magdalen Coll. case, 713, 714 
 
 V. Att.-Gen. 485 
 
 Magee v. Atkinson, 57 
 
 Magennis v. Fallon, 3, 107, 235, 264, 
 265, 266, 330, 332, 347, 350, 354, 
 402, 640, 644 
 Magham v. Coombs, 671 
 
 Magill V. Hinsdale, 57 
 
 Magnay v. Edwards, 582, 583 
 
 Magniac v. Thompson, 715, 719 
 
 Majrrane v. Archbold, 216, 220 
 
 Magruder v. Peter, 
 
 Maguire v. Armstrong, 
 V. Nicholson, 
 Mahan v. Brown, 
 V. Mahan, 
 Mahana v. Blunt, 
 Mahoney v. Horan, 
 Mahorner v. Harrison, 
 Maigley v. Haner, 
 Main v. Melbourn, 
 Mainprice v. Westl'ey, 
 Maitland v. Backhouse, 
 
 V. Wilson, 
 Major V. Dunnavant, 
 V. Gowland, 
 V. Ward, 18i 
 
 671, 676, 680, 
 
 683 
 
 752 
 
 705 n. 
 
 491 
 
 721 
 
 152 
 
 743, 744 
 
 701 
 
 158 
 
 50, 153, 262 
 
 9 
 
 773 
 
 789 
 
 611 
 
 186 
 
 n., 393, 376, 
 
 405 n. 
 
 Majoribanks y. Hovenden,' 756,757 
 
 Malachy v. Soper, 357 
 
 Malcolm v. Charleswortb, 727, 742 
 
 Maiden v. Fyron, 236, 646, 647 
 
 V. Menill, 742 
 
 Malin ;;. Malin, 18^, 276, 701, 702 
 
 Maling v. Hill, 387, 405 n., 649 
 
 Malins v. Brown, 152 
 
 V. Freeman, 11, 22, 215 
 
 Mallory v. Stodder, 727, 753 
 
 Malone v. Harris, 801 
 
 V. O'Connor, 372, 484 
 
 Malpas V. Ackland, 775 
 
 Maltby !'. Christie, 45 
 
 V. Russell, 670 
 
 Man V. Ricketts, 103 
 
 Manby v. Bewicke, 785 
 
 Manchester v. Mathewson, 484 
 
 M'anchester, &c. Ry. Co. in re, 89, 91, 
 
 190 
 Manchester, &c. Ry. Co. v. Gt. 
 
 North. Ry. Co. 386 
 
 Mandeno v. Mandeno, 94 
 
 Maney v. Porter, 549 
 
 Mangles v. Dixon, 378 n., 381 
 
 Manhattan Co. v. Evertson, 790 
 
 Manly v. Slason, 671, 672, 675,. 676, 
 
 680 
 
 Mann «. Dunn, 263 
 
 V. Falcon, 174 
 
 V. Mann, 169 
 
 V. Pearson, 324 
 
 V. Stephens, 577, 596, 804 
 
 Manners v. Furze, 115 
 
 Manning, ex parte, 628, 631 
 
 V. Albee, 2 
 
 V. Bailey, 33 
 
 V. Brown, 239, 240 
 
 ^v. Fitzgerald, 324 
 
INDEX TO CASES CITED OE INTRODUCED. 
 
 CXXVll 
 
 Manning v. Phelps, 390, 477 
 
 Manningford v. Toleman, 683, 708 
 
 Manser's case, 614 n. 
 Manser v. Back, 15, 26, 45, 161 
 
 V. Dix, 67, 785 
 
 Mansfield v. Mansfield, 50, 563 
 
 Mansfield, Lord, v. Ogle, 478 
 
 Manton v. Titsworth, 484 
 
 Maple V. Kussart, 743 
 
 Mapps V. Sharpe, 67 
 
 Mara v. Pierce, 755, 762 
 
 Marbury v. Stonestreet, 324 
 
 March v. Eastern Railroad, 288 
 
 V. Ludlum, 786 
 
 Marcly v. Shultz, 493 
 
 Marcon v. Bloxam, 196 n. 
 
 Marcy v. Beekman Iron Co. 57 
 
 Marfell v. Rudge, 103 
 
 Margareson v. Saxton, 723 n. 
 Marine Fire Insurance Co. v. 
 
 Early, 671,681 
 
 Mark v. Clark, 71ff 
 
 Markby, in re, 182 
 
 Marker v. Marker, 696 
 
 Markham v. Merrett, 458 
 
 Markland v. Crump, 577 
 
 Marks K. Pell, 171,174,486 
 
 «.• Robinson, 168 
 
 Marlott 17. Warwick, 116 
 
 Marlow o. Orgill, 706 n. 
 
 V. Smith, 386, 397 
 
 Marple J). Scott, 612 
 
 Marriage v. East. C. Ry. Co. 73 
 
 Marsden v. Moore, 241 
 
 Marsh v. Austin, 525 
 
 V. Burt, 26 
 
 V. Howe, 786 
 
 V. Hyde, 129 
 
 V. Lee, 196 
 
 V. Oliver, 484 
 
 U.Turner, 671,680 
 
 Marshe, ea; ^arte, 689 
 
 Marshall v. Baker, 158, 165 
 
 V. Booker, 714 
 
 V. Christmas, '671, 676 
 
 I'. CoUett, 742 
 
 V. Davies, 225 
 
 V. Ferguson, 125 
 
 V. Fisk, 727 
 
 V. Frank, 787 
 
 V. Haney, 361 
 
 V. LynnJ 164, 260 
 
 V. Pierce, 743 
 
 V. Powell, 257 
 
 V. Sladden, 63, 70 
 
 V. Stevens, 688 
 
 V. Watson, 229 
 
 Marson v. London, Chatham, & 
 
 Dover Ry. Co. 73 
 
 Marsteller u.![M'Clean, 481 
 
 Marston v. Bnickett, 7, 743, 744 
 
 V. Gale, 124 
 
 V. Hobbs, 573, 577, 599, 610, 
 
 611 
 
 V. Marston, 714 
 
 V. Roe, 145, 183, 463 
 
 Martin, in re, 84 
 
 V. Baker, 577, 610 
 
 V. Black, ] 33 
 
 0. Bowker, 486 
 
 V. Cotter, 7, 23, 213, 214, 392, 
 
 393, 405 n., 763, 764 
 
 V. D'Arcy, 522 n. 
 
 V. Gordon, 611 
 
 V. Jackson, 484 
 
 V. Long, 611 
 
 V. McCormick, 251, 549 
 
 r. Martin, 254, 600, 610, 686, 
 
 714 
 
 V. Mitchell, 129, 133, 206, 
 
 211, 213 
 
 V. Pyecroft, 160 
 
 V. Ranlett, li 
 
 V. Sale, 755 
 
 V. Sedgwick, 379 
 
 V. Smith, 241, 363 
 
 V. Thrasher, 56 
 
 V. Wharton, 1, 331 
 
 Martin and Ormsby, in re, 65 
 
 Martindale v. Booth, 706 
 
 1'. Smith, 268 
 
 Martyn v. Clue, 583 
 
 V. Cotter, 304 
 
 V. Macnamara, 008 
 
 V. Williams, 577, 686 
 
 Marvin v. Bennett, 315, 316, 324 
 
 Maryland Savings Bank v. Schroe- 
 
 der, ] 5 1,154 
 
 Maryon v. Carter, 199, 268 
 
 Masen v. Crosby, 24 3 
 
 Mason v. Armitage, 11, 146, 148, 216 
 
 V. Baker, 713, 714 
 
 V. Blair, 161 
 
 V. Bovet, 252 
 
 V. Cole, 25 
 
 V. Corder, 300, 301, 371 
 
 V. Crosby, 2, 2 n , 4, 5 
 
 V. Franklin, 232 
 
 V. Kaine, 358 
 
 V. Mason, 70 
 
 V. Wallace, 268 
 
 Massey u. Batwell, 517 
 
 V. Hackett, 134 
 
 u. M'Jlwain, 151, 155, 749 
 
CXXVIU INDEX 
 
 TO CASES CITED OR INTRODUCED. 
 
 
 Massey v. O'Dell, 
 
 313 
 
 Mead k. DeGolyer, 
 
 158 
 
 V. Travers, 
 
 717 
 
 V. Fox, 
 
 573 
 
 Massie v. Watts, 
 
 201 
 
 V. Merritt, 
 
 201 
 
 Master v. De Croismar, 
 
 685 
 
 V. Norbury, Lord, 
 
 389 n. 
 
 Masters v. Freeman, 
 
 169 
 
 V. Orrery, Lord, 
 
 668, 669 
 
 Masury v. Soutliworth, 
 
 577, 584 n. 
 
 V. Steger, 
 
 158, 169 
 
 Mather v. Eraser, 
 
 33 
 
 Meadows v. Kingston, Duchess of, 790 
 
 V. Norton, 
 
 405 n., 658 
 
 V. Meadows, 
 
 42, 134 
 
 V. Priestman, 
 
 60 
 
 V. Tanner, 
 
 9 
 
 Mathias v. Mathias, 
 
 708, 709 
 
 Meara v. Meara, 
 
 371 n. 
 
 Mathison v. Clarke, 
 
 66, 67 
 
 Mears v. Best, 
 
 94 
 
 Matson v. Denis, 
 
 755 
 
 V. Morrison, 
 
 57 
 
 Matthew V. Bowler, 
 
 676, 676 n. 
 
 Mease v. Mease, 
 
 158 
 
 V. Osborne, 
 
 189 
 
 Meason v. Kaine, 259, 358 
 
 361, 743 
 
 Matthews v. Bliss, 
 
 56 
 
 Mechanics' Bank v. Lynn, 
 
 268 
 
 V. l)ana, 
 
 351 
 
 Mechanics' Bank of Alexandria v. 
 
 V. De Merritt, 
 
 523, 762 
 
 Seton, 
 
 210 
 
 V. Dragand, 
 
 687 
 
 Mechelem v. Wallace, 
 
 127 
 
 V. Goodday, 
 
 682 
 
 Mecklcni v. Blake, 
 
 649 
 
 V. HoUings, 
 
 549, 550' 
 
 Medbury v. Watson, 
 
 2,4 
 
 V. Jones, 
 
 656, 781 
 
 Meder v. Birt, 
 
 790 
 
 V. Stubbs, 
 
 100 
 
 Medley v. Davis, 
 
 671 
 
 V. Wallwyn, 
 
 197 
 
 V. Horton, 
 
 748 
 
 Matthie v. Edwards, 
 
 63, 396 
 
 Medlicot v. O'Donel, 253, 276 
 
 ,696,793 
 
 Mattix V. Weand, 
 
 675 
 
 Medomak Bank v. Curtis, 
 
 165 
 
 Mattock V. Hunt, 
 
 298 
 
 Meecli V. Bennett, 
 
 11 
 
 V. Kinglake, 
 
 240, 241 
 
 V. Smith, 
 
 44 
 
 Maule V. Weaver, 
 
 577 
 
 -Meek v. Kettlewell, 
 
 719 
 
 Maulsby, ex parte, 
 
 785 
 
 Meeker v. Evans, 
 
 99 
 
 Maundrell v. Maundrell, 
 
 624 
 
 Megargel v. Saul, 
 
 671 
 
 Maunsell v. White, 
 
 137 
 
 Meigs V. Dimock, 
 
 671, 680 
 
 Maupin v. McCormick, 
 
 671 
 
 Melery v. Cooper, 
 
 683 
 
 Mauri v. Heffernan, 
 
 53 
 
 Mellersh v. Keen, 
 
 67 
 
 Maurice v. Wainwright, 
 
 103 
 
 Melling v. Bird, 
 
 84 
 
 Maw V. Topham, 
 
 309 
 
 V. Leake, 
 
 478 
 
 Mawson v. Fletcher, 
 
 20 
 
 Mellish f. Brooks, 
 
 477, 488 
 
 Maxfield v. Bierbauer, 
 
 549 
 
 V. Mellish, 
 
 171 n. 
 
 Maxwell's case, 
 
 704 
 
 V. Motteux, 
 
 333 
 
 Maxwell v. Port Tennant, &c. Co. 75 n. 
 
 V. Seney, 460 
 
 May V. Eastin, 1 74 
 
 V. Hanks, 743 
 
 V. Le Claire, 720, 7 75, 788 
 
 Mayfield v. Wadsley, 125, 126, 127 
 
 Mayham v. Coombs, 675, 676 
 
 Maynard's case, 548, 549 
 
 Maynard v. Esher, 491 
 
 V, Hoskins, 701 
 
 V. Johnson, 569, 572 
 
 Mayne v. Macartney, 115 
 
 Mayo V. Cunningham, 683 
 
 V. Giles, 378 
 
 V. Purcell, 252, 386, 555, 627 
 
 V. Swope, 264 
 
 Mayor v. Steward, 592 
 
 11. Williams, 765 
 
 May wood v. Lubhock, 714 
 
 V. Vallins, 195 
 Melross v. Scott, 680 
 Melvin v. Locks & Canals on Mer- 
 rimack River, 482, 483 
 Meni v. Eathbone, 727 
 Mercer v. Blain, 749 
 V. Selden, 482 
 V. Stark, 702 
 Merceron v. Dowson, 598 
 Meredith v. Naish, 1 52 
 V. Saunders, 275 
 Meres v. Ansell, 158, 161 
 Merle v. Mathews, 158 
 Merrill v. Ithaca & Oswego R. R. 
 
 Co. 158 
 
 I'. Meachum, 720 
 
 Merritt r. Brown, 260 
 
 r. Clason, 140, 142 
 
 V. Lambert, 690, 753 
 
INDEX TO CASES CITED OR INTRODUCED. 
 
 CXXlX 
 
 Merritt v. "Wells, 
 
 G80 
 
 V. Wiles, 
 
 671 
 
 Merry r. Abney, / 
 
 756 
 
 Mertens v. Adcock, 
 
 39 
 
 Mertins v. Joliffe, 
 
 753, 775 
 
 Mertz V. Dorney, 
 
 493 
 
 Merwin v. Smith, 
 
 97, 99 
 
 Messer v. Boyle, 
 
 . 94 
 
 Metcalf V. Clough, 
 
 50 
 
 V. Putnam, 
 
 151 
 
 V. Scholey, 
 
 518 
 
 Metcalfe v. Dallam, 
 
 363 
 
 V. Pulvertoft, 
 
 720, 721, 759 
 
 Metherell, ex parte, 
 
 84 
 
 Meihodist Church v. Remington, 685 
 
 Method. Epis. Church v. Jaques, 206, 
 
 646, 701, 706, 708 
 
 Meux V. Boll, 379, 380 
 
 V. Maltby, 762 
 
 V. Smith, 541 
 
 Mews V. Carr, 42 
 
 Meynell v. Garraway, 753 
 
 V. Sartees, 137, 151, 154, 330, 
 
 744 
 
 Meyrick's Estate, in re, 398 
 
 Michaud v. Girod, 253, 687, 688, 
 
 696 
 Michelson v. Wallace, 123 
 
 Micklethwait, in re, 556 
 
 Micklethvvaite v. Nightingale, 160 
 
 Middlemore o. Goodale, 677, 578 
 
 Middleton v. Kenyon, Lord, 719 
 
 V. Magnay, 68, 234 
 
 V. Perry, 169 
 
 V. Spicer, 177 
 
 Middleton, Lord, v. Eyre, 135 n. 
 
 V. Wilson, 135 
 
 Mid Kent Eailway, in re, 87 
 
 Midland Counties B,y. Co. in re, 84 
 V. Oswin, 85 
 U.Rice, 91 
 V. West- 
 comb, 91 
 Mildmay v. Hungerford, 331 
 
 V. Mildmay, 789 
 
 Miles V. Dawson, 445 n. 
 
 V. Durnford, 669 
 
 V. Ervin, 690 
 
 V. Langley, 765 
 
 V. Roberts, 158, 165 
 
 V. Stevens, 171, 400 
 
 Milfield, in re, 202 
 
 Mill V. Hill, 728, 729 
 
 V. New Forest, Commissioners 
 of, 492 
 
 Millard's case, 741, 789, 791 
 
 Millard v. Baldwin, 158 
 
 VOL,. I. i 
 
 Millard v. Harvey, 154 
 
 V. Hathaway, 701 
 Milldam Foundry v. Hovey, 158, 730 
 
 Miller v. Argyle, 264 
 V. Auburn & Syr. R. R. Co. 123, 
 124 
 
 V. Bagwell, 158 
 
 V. Baker, 125 
 
 1-. Blandist, 152 
 
 V. Chetwood, 211 
 
 V. Gotten, 155 
 
 V. Craig, 2 
 
 V. Estell, 727 
 
 u. Estill, 727 
 
 V. Fraley, 755, 756, 775 
 
 V. Goodwin, 645 
 
 V. Henderson, 160, 171 
 
 V. Kershaw, 758 
 
 V, Larmon, 569 
 
 u. Long, 549, 686 
 
 V. Mclntyre, 253 
 
 V. Miller, 458, 743 
 
 V. Morrow, 569 
 
 V. Plumb, 33 
 
 V. Porter, 685 
 
 V. Pridden, 551 
 
 V. Sherry, 758 
 
 V. Stokely, 702 
 
 V. Stump, 457 
 
 V. Thompson, 714 
 
 V. Tobie, 124 
 
 V. Whittier, 241 
 
 V. Williamson, 661, 668, 669 
 
 0. Wilson, 702 
 Millican t. Vanderplank, 101, 105, 109, 
 
 121 
 
 Milligan v. Cooke, 306 
 
 Milliken v. Thorndike, 5 
 
 Millington v. Fox, 646 
 
 Mills V. Auriol, 612 
 
 U.Bell, 611 
 
 V. Catlin, f 573, 577, 605 
 
 V. Good sell, 687 
 
 V. Harris, 38 
 
 V. Howeth, 714 
 
 V. Hunt, 53 
 
 V. Oddy, 30, 31, 49 
 
 V. Osborne, 659 
 
 Millspaugh v. McBride, 120 
 
 Milne V. Mar wood, 5 
 
 Milner v. Horton, 608 
 
 V. Mills, 183, 192 
 
 Milnes v. Branch, 590, 591, 691 n. 
 
 V. Gery, 135, 140, 288 
 
 Milnor v. Willard, 268 
 
 Milward v. Thanet, Earl of, 260, 266 
 
 Mims «;. Lockett, 671, 676 
 
cxxx 
 
 INDEX TO CASES CITED OR INTEODUCED. 
 
 Mims V. Macon & Western Kail- 
 road, 671,675,676,679,680 
 
 Minard v. Mead, 57 
 
 MincMn v. Nance, 644 
 
 Miner v. Clark, 612 
 Mines Koyal Society v. Magnay, 222 
 
 Minet, ex parte, 129 
 V. Leman, 374, 375, 405 n. 
 
 Minns v. Morse, 153 
 
 Minor, ex parte, 101,292 
 
 V. Willoughby, 761 
 
 MinshuU V. Oakes, 589 n. 
 
 Minturn v. Baylis, 213 
 
 V. Main, 53 
 V. Seymour, 211, 212, 721 
 
 Minuse v. Cox, 60 
 
 Miranville v. Silverthorn, 154 
 
 Mirehouse v. Scaife, 656 
 
 Mirell v. Burnett, 129 
 
 Mirfin, in re, 473 
 Mitchell V. Berry, 98, 117, 714 
 
 V. Bunch, 201 
 
 V. Haren, 611 
 
 V. Hayne, 51 
 
 V. Hazen, 610 
 
 V. Mitchell, 195, 563 
 
 V. Neale, 386 
 
 V. Newell, 90 
 
 V. Peters, 762 
 
 V. Pettee, 556 
 
 V. Puckett, 789 
 
 V. Stewart, 596 
 
 V. Warner, 577, 591 n., 600, 
 610 
 
 V. Winslow, 681 
 
 V. Zimmerman, 1, 5 
 
 Mitford V. Mitford, 681, 779 
 
 Mittelholzer v. Pullarton, 565 
 
 Moale V. Baltimore, 25 
 V. Buchanan, 138, 155, 160 
 
 Mocatta v. Murgatroyd, 781 
 
 Modisett v. Johnson, 211 
 
 Modlen v. Snowball, 23, 638 
 
 Moers v. White, 482 
 
 Moffatt V. McDonald, 708 
 
 Moggridge v. Jones, 240 
 
 Mohawk Bank v. Atwater, 99 
 
 Mole V. Smith, 405 n. 
 
 Moles worth v. Opie, 118 
 
 V. Bobbins, 434 
 
 Molineux, ex parte, 90, 691 
 
 Mollet V. Brayne, 123 
 
 Mollett V. Wackarbarth, 159 
 
 MoUoy V. French, 378 
 
 V. Sterne, 16, 337 
 
 Molony v. Kernan, 789 
 
 u. L'Estrange, 693 
 
 Molton V. Camroux, 208, 686 
 
 Monck V. Huskisson, 390 n., 405 n., 634, 
 
 635 
 
 Moncrieff v. Goldsborough, 10 
 
 Money v. Jorden, 4 
 
 Monell V. Lawrence, 761 n. 
 
 Monmouth Canal Co. v. Harford, 492 
 
 Monro V. Allaire, ' 688 
 
 V. Taylor, 19, 168, 169, 170, 271, 
 
 303, 304, 627, 647, 650 
 
 Monroe v. Graves, 701 
 
 Montague v. Dawes, 62, 65, 66, 67, 68, 
 
 98, 99, 117, 118 
 
 V. Jefferies, 186 
 
 Montesquieu v. Sandys, 693 
 
 Montford, Lord, v. Cadogan, Lord, 746 
 
 Montgomery, ex parte, 63 
 
 Montifiore v. Browne, 755, 773, 777, 
 
 783 
 
 Montmorency v. Devereux, 253' 
 
 Monypenny v. Bristow, 184 
 
 u. Monypenny, 251, 419 
 
 Moody V. Vandyke, 687, 688 
 
 V. Walters, 388, 405 n. 
 
 V. Wells, Dean and Chap. 
 
 of, 735 n. 
 
 Mooney v. Miller, 2, 3, 4, 243 
 
 Moor V. Mayhow, ' • 789 
 
 v. Raisbeck, 190,192 
 
 V. Roberts, 47, 238, 361 
 
 481 
 
 V. Beasley, 151 
 
 V. Bennett, 775 
 
 V. Blondham, 714 
 
 V. Bowman, 743, 744 
 
 V. Bray, 786 
 
 V. Burrows, 175 
 
 V. Cable, 486, 747 
 
 V. Campbell, 165 
 
 V. Creed, 357 
 
 V. Culverhouse, 727 
 
 V. Edwards, 149 
 
 V. Foley, 169 
 
 V. Greg, 38 
 
 V. Green, 703 
 
 u. Hart, 139 
 
 V. Hilton, -253, 687, 688 
 
 V. Holcombe, 681, 682 
 
 V. Mayhew, 753 
 
 V. Meek, 713 
 
 V. Moore, 569, 701, 702 
 
 V. Pierson, 133 
 
 V. Rake, 556 
 
 t'. Rawson, 376 
 
 V. Raymond, 683 
 
 t>. SmuU, 151 
 
 V. Wilson, 44 
 
 Moore v. Armstrong, 
 
INDEX TO CASES CITED OR INTRODUCED. 
 
 CXXXl 
 
 Moorecock v. Dickens, 728 
 
 Moragne v. Le Koy Du Cereveil, 758 
 Moran v. Hiyes, 645, 700 
 
 Morange v. Morris, 347 
 
 More V. Smedburgh, 257, 260, 264, 344, 
 
 347 
 
 Moreland i. Lemasters, 151, 762 
 
 Moreton v. Harrison, 671, 679, 683 
 
 Morewood v. Southport Ry. Co. 720 
 
 Morgan, ex parte, 688 n., 694 
 
 V. Bittenberger, 126 
 
 V. Boone, 555 
 
 V. Davis, - 486 
 
 V. Gurley, 269 
 
 V. Holford, 131, 193, 194 
 
 I'. McLaren, 126 
 
 V. Mason, 46 
 
 V. Milman, 74, 78, 134, 135, 
 
 140, 209, 287, 288 
 
 V. Moore, - 25 
 
 V. Morgan, 232, 268, 386, 486 
 
 V. Pike, 566 
 
 V. Kainsford, 217 
 
 V. Shaw, 229, 352 
 
 V. Stell, 563 
 
 V. Tedcastle, 327 
 
 Moriarty t7. Grey, 370 
 
 Morice v. Durham, Bishop of, 116 
 
 Morison v. Tumour, 142, 144 
 
 Morland v. Cook, 24 u., 58, 762 
 
 Morley v. Attenborough, 337 n. 
 
 V. Clavering, 37, 214, 297 
 
 V. Cook, 21, 22, 423 
 
 Mornington, Lady, v. Keane, 708, 711 
 
 Morony v. O'Dea, 286 
 
 Morphett v. Jones, ~ 151 
 
 Morrell, ex parte, 681 n. 
 
 Morret v. Paske, ^ 555 
 
 Morrill v. Wallace, 2 
 
 Morris v. Barrett, 698 
 
 V. Clarkson, 397 
 
 V. Davis, 421 
 
 V. Edgington, 610 
 
 V. Ellis, 485 
 
 V. Ford, 727 
 
 V. Herbert, . 479 
 
 V. Kearsley, 16, 17, 19, 377, 428 
 
 V. McMorris, 566, 56S 
 
 V. M'Neil, 241 
 
 V. Morris, 462 
 
 V. Mowatt, 106 
 
 V. Nixon, * 174, 702 
 
 V. Phelps, 610, 611 
 
 V. Preston, 311 
 
 V. Eowan, 611 
 
 u. Sliter, 240 
 
 V. Stephenson, 206 
 
 Morris v. Timmins, 252, 289 
 
 V. Wilson, 169 
 
 Morris Canal Co. v. Emmett, 324 
 
 V. Everett, ^ 56 
 
 Morris & Essex Railroad Co. v. 
 
 Sussex Railroad Co. 76 
 
 Morriso v. Philliber, 275 
 
 Morrison v. Caldwell, 549 
 
 V. Ives, 239 
 
 V. McLeod, 212 
 
 ('. March, 762 
 
 V. Underwood, 556 
 
 Morrough v. Power, 487 
 
 Morrow v. Willard, 26 
 
 Morse v. Aldrich, 581, 584 n., 593 
 
 V. Child, 167, 743 
 
 V. Copeland, , 124 
 
 V. Faulkener, 355, 744, 745 
 
 ». Godfrey, 713 
 
 V. Green, 57 
 
 V. Merest, 289 
 
 u. Royal, 252, 253,286, 692, 696 
 
 V. Shattuck, 645 
 
 V. Tucker, 612 
 
 Morshead, Sir John, v. Frederick, 120, 
 
 App. viii., 814 
 
 Morse v. Elmendorf, 233, 247, 306, 
 
 316, 326 
 
 Mortal V. Lyons, 155 
 
 Mortimer v. Bell, 9, 10 
 
 u. Capper, 273, 294, 296 
 
 V. Cornwell, 145 
 
 V. Ireland, 665 
 
 V. Orchard, 151,154, 155, 160 
 
 V. Shortall, 172 
 
 Mortloek v. Buller, 71, 108, 145, 209, 
 
 216, 217, 244, 273, 27-.5, 307, 308 
 
 V. Kentish, 374 
 
 Morton v. Dean, 42, 138, 139, 147 
 
 V. Ridgeway, 287, 747 
 
 V. Southgate, 70 
 
 Moseley v. Moseley, 714 
 
 Moses V. M'Farlan, 236 
 
 Moshier v. Knox College, 713 
 
 Mosley v. Garrett, 671 
 
 V. Hide, 36 
 
 Moss V. Gallimore, 181 
 
 V. Barter, 172 
 
 V. Matthews, 39, 55, 351 
 
 Mostellen v. Bost, 378 
 
 Moth V. Atwood, 211, 212, 275, 286 
 
 Mott V. Clark, 727, 738 
 
 V. Clarke, 753 
 
 u. Harrington, 690' 
 
 V. Mott, 40 
 
 Moulton v. Edmonds, 365,417,419, 
 
 422, 436, 437, 438 
 
CXXXU INDEX 
 
 TO CASES CI 
 
 Moultdn V. Faught, 
 
 
 124 
 
 Moultrie v. Jennings, 
 
 
 714 
 
 Mounce v. Byars, 
 
 
 671, 680 
 
 Mountcashell, Lord, v. 
 
 O'Neill, 
 
 Lord, 
 
 
 235 
 
 Mountford v. Scot, 
 
 
 755 
 
 Movan v. Hays, 
 
 
 159 
 
 Mower v. Orr, 
 
 
 463 
 
 Mowry v. Bishop, 
 
 
 640 
 
 V. Todd, 
 
 
 378 
 
 Moxliay I!. Inderwick, 3' 
 
 ,38, 
 
 596, 805 
 
 Moyer v. Schick, 
 
 
 728 
 
 Moyl V. Home, 
 
 
 153 
 
 Moyse v. Gyles, 
 
 
 697 
 
 Muggleton v. Barnett, 
 
 
 461 
 
 Muir V. Cross, 
 
 
 671 
 
 V. Jolly, 
 
 
 674 
 
 Muldrow V. Muldrow, 
 
 
 175, 177 
 
 Mulholland v. Belfast, Mayor 
 
 of, 216, 
 
 
 367 n., 382 
 
 Mullen V. Wilson, 
 
 
 714 
 
 Mullikia v. Mullikin, 
 
 
 102, 679 
 
 MuUins V. Townsend, 
 
 
 110 
 
 V. Trinder, 
 
 
 386 
 
 Mullins' Settled Est., in 
 
 re, 
 
 499 
 
 Mumford v. Whitney, 
 
 124 
 
 125, 126 
 
 Mumma v. Mumma, 
 
 
 703, 704 
 
 Mummery v. Paul, 
 
 
 248 
 
 Mundine v. Pitts, 
 
 
 738 
 
 Mundy v. JolifFe, 
 
 154 
 
 156, 160 
 
 V. Vawter, 
 
 
 755, 762 
 
 Munn V. Commission Co 
 
 
 642 
 
 Munroe v. Newry, &c. Ry. 'Co. 79 
 
 V. Perkins, 
 
 
 158 
 
 Munsell v. Loree, 
 
 
 213 
 
 Munson v. Hallowell, 
 
 
 253 
 
 Munt V. Shrewsbury, &o 
 
 By. 
 
 Co. 76 
 
 Murchie v. Black, 
 
 
 59 
 
 Murdock's case. 
 
 
 689 
 
 Murdock V. Anderson, 
 
 
 134 
 
 V. Beal, 
 
 
 324 
 
 V. Hughes, 
 
 
 484, 701 
 
 Murless «.. Franklin, 
 
 
 704 
 
 Murley v. M'Derniott, 
 
 
 26 
 
 Murphy V. Barefield, 
 
 
 199 
 
 V. Clark, 
 
 
 210 
 
 u. Ford, 
 
 
 577 n. 
 
 V. Leader, 
 
 
 730 n. 
 
 V. Nathans, 
 
 
 703 
 
 V. O'Shea, 
 
 
 689 
 
 V. Tripp, 
 
 
 174 
 
 Murray v. Able, 
 
 
 683 
 
 V. Ballon, 378, 
 
 695, 
 
 740, 749, 
 
 753, 757, 
 
 758 
 
 789, 790 
 
 V. Currie, 
 
 
 46 
 
 V. Finster, 
 
 749 
 
 789, 790 
 
 Murray v. Lylburn, 378, 381, 708, 758, 
 
 759 
 
 V. Palmer, 253, 254, 275, 287, 
 
 696 
 
 Murrell v. Goodyear, 218, 349, 355 
 
 Muscatine v. Sterneman, ' 566, 569 
 
 Muscot V. Ballet, 610 
 
 Musgrave v. Dashwood, 205 
 
 V. McCullagh, 369 
 
 Muskerry, in re, 47 d 
 
 D..Chinnery, 752 
 
 Mussell V. Cooke, 139 
 
 Musselman v. Eshleman, 253, 687 
 
 Muston V. Bradshaw, 232 
 
 Mutts V. Kancie, 668 
 
 Mut. Ins. Co. V. Deal, 704 
 
 Myddleton v. Kenyon, Lord, 719 
 
 Myers v. Aikman, 400 
 
 V. Gemmel, 491 
 
 V. Myers, 702 
 
 V. Peck, 753 
 
 V. Kaymond, 106 
 
 V. Sanders, 720 
 
 V. Smith, 133, 566, 572 
 
 V. Un. Guar. &c. Co. 357 
 
 V. Watson, 25, 160, 215 
 
 Mynn v. JolifEe, 48, 786 
 
 N. 
 
 Nagle V. Ahern, 571 
 
 V. Baylor, 212 
 
 Naglee v. IngersoU, 600 
 
 Nairn v. Prowse, 675, 682, 716 
 
 Naish, in re, 88 
 
 Nantz V. Loben, . 628 
 
 V. M'Pherson, 762, 789 
 
 Napier v. Bulwinkle, 59, 491 
 
 ii. Staples, 710 
 
 Napper v. Allington, Lord, 613 
 
 Nash, in re, 88 
 
 ( . Armstrong, 167 
 
 V. Aston, , 601, 610, 613 
 
 I'. Browne, 16 
 
 V. Coates, 389 n. 
 
 V. Hodgson, 482 
 
 V. Palmer, 600 
 
 V. SpofEord, 556 
 
 V. Turner, 439, 439 n. 
 
 V. Worcester Improvement 
 
 Commissioners, 80 
 
 ISTason v. Grant, 167 
 
 National Exchange Co. v. Drew, 250, 
 
 250 n. 
 National Fire Insj. Co. v. Loomis, 10, 
 
 129 
 
INDEX TO CASES CITED OE INTEODUCED. 
 
 CXXXUl 
 
 National Fuel Co. re, , 250 
 
 Nay lor v. Wright, 172 
 
 Nazareth, &c. v. Lowe, 680 
 
 Neal V. Day, 714 
 
 V. Kerrs, 728 
 
 V. Morris, 199 
 
 «. Viney, , 127 
 
 U.Williams, 720 
 
 Neale v. Hagthorpe, 701 
 
 V. Mackenzie, 216 
 
 V. Parkin, 324 
 
 Neap V. Abbott, 215, 314 
 
 Neate v. Marlborough, Duke of, 521 
 Needham u. Beaumont, 713 
 
 Needier v. Wright, 747 
 
 Needles v. Needles, 276 
 
 Neely v. Steele, 6 1 
 
 U.Wood, 713 
 
 Neesom v. Clarkson, 254, 445, 708, 776 
 Neevesi). Burrage, 401, 670 
 
 Negley v. Lindsay, 252, 253 
 
 Neil V. Cheves, 158 
 
 J'. Kinney, 671,680 
 
 V. Tillman, 158 
 
 Neill V. Keese, 701 
 
 Nellis I'. Clark, 211 
 
 Nelson v. Aldridge, 44 
 
 V. Booth, 688 
 
 V. Bridges, 233 
 
 V. Callow, 405 n. 
 
 V. Carrington, 238, 324 
 
 V. McGiffort, 464 
 
 V. Matthews, 324, 573, 611 
 
 W.Nelson, 126,172,326 
 
 v. Stooker, 209 
 
 V. Wade, 762 
 
 .u. Worrall, 701 
 
 Nelson, Earl, v. Bridport, Lord, 646 
 Nelthorpe v. Holgate, 21, 182, 218, 
 232, 310, 749, 765 
 V. Pennyman, 120 
 
 Nepean u. Doe, 476 
 
 Nervin v. Munns, 599, 605 
 
 Nesbit V. Nesbit, 577 
 
 Ness, ex parte, 523 
 
 Nettleton v. Sikes, 126 
 
 Nevius V. Dunlap, 160 
 
 Newall V. Smith, 649 
 
 New Barbadoes Toll Bridge v. 
 
 Vreeland, 573 
 
 New Berlin v. Norwich, 161 
 
 Newbold v. Roadknight, ■ 192 
 
 Newborn v. Bronson, 201 
 
 New Brunswick, &c. Co. v. Mugge- 
 
 ridge, 216 
 
 New Brunswick & Canada Bail- 
 way & Land Co. v. Conybeare, 244 
 
 Newby v. Paynter, 
 
 21, 37, 
 
 306 
 
 Newcomb v. Brackett, 
 
 
 241 
 
 Newell V. Horn, 
 
 4, 
 
 248 
 
 V. Morgan, 
 
 701, 
 
 706 
 
 V. Ward, 
 
 
 660 
 
 New Eng. Marine Ins. Co. v. De 
 
 Wolf, 57 
 
 Newhall v. Iveson, 26 
 
 V. Piercfe, 762 
 
 Newham v. May, 235, 549 
 
 New Hampshire Bank v. Willard, 728 
 
 Newland v. 539 
 
 Newlands 1'. Holmes, 476 
 
 Newman, in re, 467 
 
 V. Chapman, 758 
 
 u. Kent, 551 
 
 u. Meek, 11,273 
 
 V. Payne, 689, 690 
 
 V. Rogers, 268 
 
 V. Warner, ' 666 
 
 Newport's, Andrew, case, 720 
 
 Newsom u. Bufferlow, 160 
 
 V. Harris, 361 
 
 Newson v. Smythies, ' 258 
 
 Newstead u. Searles, 715, 717, 756 
 Newton, ex parte, 90 
 
 V. Beck, 434 
 
 V. Bronson, 136 
 
 V. Fay, 1 74 
 
 V. Hunt, 277, 283, 285 
 
 V. Metropl. Ry. Co. 668 
 
 V. Preston, 701, 701 n., 702 
 V. Swazey, 130, 149, 151, 201, 
 213 
 New York Central Ins. Co. v. Na- 
 tional Protection Ins. Co. 757 
 New York Corporation v. Cush- 
 
 man, 602 
 
 New York Life Ins. &c. Co. v. 
 
 Smith, 197, 727 
 
 Nias V. The Nor. & East. Ry. Co. 785 
 
 Nichol V. Dupree, 460 
 
 Nicholas v. Ward, 714 
 
 Nicholls V. Corbett, 17, 337 
 
 V. Gayford, 59 
 
 v. How, 544 
 
 Nichols I'. Cooper, 324 
 
 u. Freeman, 241,358,361 
 
 V. Hawkes, 405 n. 
 
 V. Johnson, 134, 159 
 
 V. Thornton, 701 
 
 ■u. Walter, 611 
 
 0. Williams, 211, 213 
 
 Nicholson u. Halsey, 617 
 
 V. Hooper, 743 
 
 V. Knapp, 229 
 
 V. Wright, 405 n. 
 
CXXXIY 
 
 INDEX TO CASES CITED OR INTRODUCED. 
 
 NickoU's case, 75 
 
 Nickols V. Gould, 277, 286 
 
 Nicloson V. Wordsworth, 347, 851, 
 38D n., 405 n., 646, 664 
 
 Nicol's case, 250 
 
 Nicoll V. Chambers, 19, 28, 324 
 
 V. Huntington, 649 
 
 NightinMle v. Burrell, 464 u. 
 
 Niles u. Board of Coirfm. Sink. 
 
 Fund, 640 
 
 Niramo v. Davis, 276 
 
 Kind V. Marshall, 606 
 
 Nixon, ex parte, 65 
 
 V. Hamilton, 286, 757 
 
 V. Mayoh, 445 n. 
 
 V. Robinson, 775 
 
 Noble V. Bosworth, 33 
 
 V. Brett, 379 
 
 V. Cass, 612 
 
 V. Googins, 324 
 
 V. King, 605 
 
 V. Ward, ' 165 
 
 Nodine v. Greenfield, 264 
 
 Noel V. Bewley, ' 399, 745 
 
 V. Hoy, 21 7, 350 
 
 V. Jevon, 456 
 
 V. Noel, 701 
 
 V. Ward, 444 
 
 V. Weston, 397, 563 
 
 Noke V. Awder, 577 
 
 Nokes V. Gibbin, 750 
 
 V. Kilmorey, Lord, 262, 266 
 
 Noonan v. Ilsley, 611 
 
 V. Lee, 6, 549 
 
 V. Orton, 297 
 
 Norcross v. Widgery, 728, 755, 762 
 
 Norfolk, Duke of, v. Worthy, 23, 28, 
 
 53, 57, 237, 325, 331 
 
 Norman v. Foster, ' 608 
 
 V. Stiby, 612 
 
 V. Wells, 577, 582, 593 
 
 Normanby, Marquis of, v. Devon, 
 
 Duke of, 142, 220 
 
 Norris v. Cooke, 130 
 
 V. Jackson, 55, 234 
 
 V. Le Neve, 696, 756 
 
 V. Ld. D. Stuart, 761 
 
 V. Norris, 713 
 V. School District in Win- 
 
 sor, 257 
 
 V. Wait, 743 
 
 Nortclifie i'. Warburton, 759 
 
 North V. Barnum, 484 
 
 V. Langton, 625 
 
 , V. Pepper, 241 
 
 Northampton Gas Light Co. v. 
 
 Parnell, 287 
 
 North Brit. Ins. Co. v. Hallett, 380 
 North Brit. Ey. Co. v. Tod, 25 
 
 North Eastern Ry. Co. u. Elliot^ 59 
 North of England Banking Co. 
 
 in re, 376 
 
 North River Bank w. Aquee, 57 
 
 North River Ins. Co. u. Holmes, 114 
 
 North Shields, &c. Co. in re, 250 
 
 Northrup v. Brehmer, 727 
 
 North Staflford. Ry. in re, 89, 90 
 
 Northwick, ex parte, 82 
 
 Norton v. Babcock, 611 
 
 V. Hathaway, 331 
 
 V. Herron, 57 
 
 V. Maseall, 220 
 
 V. Norton, 714 
 
 V. Preston, 151 
 
 V. Rose, 378 
 
 V. Steinkopf, 228 
 
 V. Stone, 701 
 
 V. White, 232 
 
 Norvell v. Johnson, 671 
 
 Norwich, Mayor of, v. Norfolk Ry. 
 
 Co. 76 
 
 Nott V. Hill, 276 
 
 V. Riccard, 17, 235, 266 
 
 V. Shirley, 184 
 
 Nouaille v. Flight, 16, 302, 313, 337, 
 
 382, 405 n. 
 
 V. Greenwood, 366, 390 n., 
 
 402, 405 n. 
 
 Nourse v. Yarworth, 616 
 
 Noyes v. Stillman, 58 
 
 Nudd V. Hamblin, 254 
 
 Nuer V. Schenck, 378 
 
 Nugee V. Chapman, 191 
 
 Nugent V. Gifford, 668, 669 
 
 Nulkes V. Day, 519 
 
 Nunn V. Fabian, 152 
 
 V. Truscott, 297 
 
 Nurse v. Seymour, Lord, 221 
 
 Nurton v. Nurton, 668 
 
 Nutting V. Dickinson, 126, 140 
 
 V. Herbert, ' 611 
 
 Nyce V. Clark, 601 
 
 Nye V. Taggart, ' 151 
 
 O. 
 
 Oakham, &c. Schools, Governors 
 
 of, ex parte, , 90 
 
 Oatman v. Cook, 361 
 
 O'Bannon v. Paremiour, 556 
 
 Obee V. Bishop, 484 
 
 Oberlin College v. Fowler, 692 
 
 Obermyer v. Nichols, 258 
 
INDEX TO CASfiS CITED OB INTRODUCED. 
 
 CXXXV 
 
 Obert V. Hanwell, 688 
 
 V. Obert, 253 
 
 O'Brien v. Lewis, 690 
 
 V. Scott, 522 n. 
 
 Ockenden v. Henley, 40, 60 
 
 O'Conner v. Kirwan, 108 
 
 O'Connor v. Richards, 118 
 
 V. Spaight, 164 
 
 Odam V. Beard, 161 
 
 O'Daniel v. Crawford, 714 
 
 Odell V. Cook, 642 
 
 O'Dell V. Wake, 539 
 
 Odiorne v. Mason, 727 
 
 Odlin V. Gove, 744 
 
 O'Donnell v. Leeman, 139 
 
 O'Donovan v. Rogers, 720 
 
 Oelrichs u. Ford, 169 
 
 O'Fay V. Burke, 132 
 
 Offen V. Harman, 63, 436 
 
 Ogden V. Battams, 188 n. 
 Ogilvie V. Foljambe, 16, 132, 134, 140, 
 
 144, 368 
 
 V. JeafEreson, 741, 757, 788 
 
 Ogle V. Earl Vane, 260 
 
 u. Ship, 738 
 
 O'Gorman v. Corayn, 720 
 
 O'Hara v. Chaine, 105 
 
 V. Creagh, 487 
 
 V. O'Neil, 700, 701 
 
 O'Herlihy v. Hedges, 135, 152, 154, 
 
 •• 219 
 
 Ohio Life Ins. Co. v. Ledyard, 728 
 
 V. Ross, 381 
 
 Okeden v. Clifden, 405 n. 
 
 O'Kell V. Whittaker, 303 
 
 O'Kelly V. Bodkin, 488, 489 
 
 Okill V. Whitaker, 246 
 
 Old Colony Railroad Corp. v. 
 
 Evans, 129,217,224,361 
 
 Oldfield V. Round, 10, 328 
 
 Oldham v. Halley, 199 
 
 «. Sale, 122,153,236,458 
 
 Oldhams v. Jones, 687 
 
 Oldin V. Samborne, 692 
 
 O'Linda v. Lothrop, ' 25, 26 
 
 Olive V. Dougherty, 152, 702 
 
 V. Piatt, 749 
 
 Oliver V. Court, 253, 688 
 
 V. Hallam, 629 
 
 V. Lowery, 378 
 
 V. Palmer, , 232 
 
 V. Piatt, 708, 720, 773 
 
 OUerton, in re, 473 
 
 OUiver v. King, 706 n. 
 
 Olmstead v. Niles, 125, 126 
 
 Olney v. Bates, 463 
 
 V. Fenner, 492 
 
 Olympic Theatre, 33 
 
 Oraerod v. Hardman, 163, 658 
 
 O'Neal V. Lodge, 645 
 
 V. Mead, 679 n., 680 
 
 Oneida Manuf. Co. v. Lawrence, 2 
 O'Neil jj. Teague, 171,173 
 
 Onions v. Tyrer, 186 
 
 Onley v. Gardiner, 493 
 
 Onslow V. Londesborough, Lord, 69, 
 451, 453 n. 
 Ontario Bank v. Root, 149 
 
 Orange v. Pickford, 462 
 
 Ord V. Noel, 61, 62, 216 
 
 V. White, 378 
 
 O'Reilly v. Thompson , 152 
 
 Oriental Bank v. Haskins, 719, 720 
 Oriental Inland Steam Co. v. 
 
 Briggs, 210 
 
 Orlebar v. Fletcher, 175, 539 
 
 Ormby v. Hutton, 747 
 
 Orme v. Broughton, 238, 363, 577 
 
 V. Wright, 65 
 
 Ormerod v. Hardman, 264 
 
 Ormes v. Beadel (2 De G., F. & J. 
 
 331), 65, 233, 252 
 
 Ormond, Lord, t). Anderson, 134 
 
 O'Rourke v. Percival, 129, 356 
 
 Orr V. Lacy, 642 
 
 Ortread v. Round, 206 
 
 Osbaldeston v. Askew, 354, 396, 648 
 
 Osborn v. Carr, 196 
 
 V. Lea, 744 
 
 V. Phelps, 160 
 
 Osborne v. Atkins, 577 
 
 V. Bremar, 316 
 
 V. Foreman, 113, 115 
 
 V. Harvey, 16, 34, 344 
 
 V. Smith, 745 
 
 Osgood V. Franklin, 244, 273, 275, 276 
 
 V. Nichols, 743 
 
 V. Strode, 716 
 
 Ossulston, Lord, v. Deverell, 367 n. 
 
 Otis V. Lindsey, 640 
 
 O'Toole V. Browne, 462 
 
 Ottenhouse v. Burleson, .151 
 
 Otter V. Vaux, Lord, 66, 689, 745, 748 
 
 Ottman v. Moak, 686 
 
 Ouseley v. Anstruther, 103, 711 
 
 Outton V. Mitchell, 679 
 
 Overstreet v. Bate, 484 
 
 Overton v. Bannister, 743 
 
 Ovey V. Leighton, 788, 790 
 
 Owen V. Body, 706 n. 
 
 V. Davies, 130, 208, 628, 632 
 
 V. Field, 124 
 
 V. Foulks, 119, 688 
 
 V. Gooch, 53 
 
CXXXVl 
 
 INDEX TO CASES CITED OR INTKODUCED. 
 
 Owen V. Homan, 773 
 
 V. Sharp, 713 
 
 V. Thomas, 134, 135, 139 
 
 Owens V. Miller, 728 
 
 O wings V. Meyers, 758 
 
 V. Owings, 701 
 
 V. Thompson, 549 
 
 Owins V. Baldwin, 155 
 
 Oxenden u. Falmouth, Lord, 637,638, 
 
 650 
 V. Skinner, 389 n., 400 n. 
 Oxenham v. Esdaile, 564, 671 
 
 Oxford V. Provaud, 2 n., 155 
 
 Oxford, Lord, v. Rodney, Lady, 195 
 Oxley V. Lee, 720 
 
 Oxwick V. Brockett, 326 
 
 V. Plumer, 774 
 
 Packer v. Hook, 
 Packhouse v. Middleton, 
 Paddoek v. Strobridge, 
 Padgett V. Lawrence, 
 Page, in re, 
 
 V. Adams, 20, 22, 
 
 V. Arnin, 
 
 V. Bennett, 
 
 V. Bent, 
 
 V. Broom, 
 
 V. Cooper, 
 
 V. Donovan, 
 
 V. Foster, 
 
 V. Hughes, 
 
 V. Lever, 
 
 V. Monks, 
 
 V. Page, 
 
 V. Wight, 
 Paget V. Foley, 
 Paige V. Sherman, 
 Paillon V. Martin, 
 Pain V. Coombs, 
 Paine v. Boston, 
 
 V. Meller, 261, 
 
 V. "Wilcox, 
 Painter v. Henderson, 
 
 V. Newby, 
 Pakenham's case, 
 Palk, Sir L. V. Skinner, 
 Palmer, ex parte, 
 V. Algeo, 
 V. Goren, 
 V. Hendrie, 
 V. Paine, 
 V. Temple, 
 
 158 
 
 594 n. 
 
 1, 3, 334 
 
 713 
 
 638, 654 
 
 342, 660, 661 
 
 744 
 
 291, 371, 501 
 
 2,4 
 
 69 
 
 62, 396 
 
 463 
 
 199 
 
 260, 268 
 
 788 
 
 127 
 
 701, 702, 703 
 
 743 
 
 488 
 
 645 
 
 688 
 
 137, 152, 297 
 
 491 
 
 265, 291, 293, 
 
 294, 365, 382 
 
 702 
 
 253, 687, 688 
 
 37, 306, 326 
 
 586, 588 
 
 492, 493 
 
 87 
 
 487 
 
 291,370, 371 
 
 198 
 
 433, 727 
 
 40, 50, 236 
 
 Palmer, App. 675, 676 
 
 Palmerston, Lord, ex parte, 90 
 
 v. Turner, 637 
 
 Palo Alto, The, 133 
 
 Papillon V. Voice, 445 n. 
 
 Paramore v. Greenslade, 39, 292, 562 
 
 Pare v. Clegg, 484 
 
 Parham i'. Parham, 171 
 
 V. Randolph, 243, 314, 315, 
 
 316, 332, 549, 553 
 
 Paris Chocolate Co. v. Crystal 
 
 Pal. Co.^ 
 
 
 287 
 
 Parish v. Sleoman, 
 
 
 27, 322 
 
 V. Whitney, 
 
 
 59, 577 
 
 Park V. Bates, 
 
 
 611 
 
 V. Cheek, 
 
 
 611 
 
 V. Johnson, 151, 
 
 161, 
 
 206, 273, 
 
 
 275 
 
 305, 386 
 
 Parke v. Leewright, 
 
 
 627 
 
 Parker v. Barker, 
 
 
 743 
 
 V. Bloxam, 
 
 
 253 
 
 V. Blythmore, 
 
 
 792 
 
 V. Bodley, 
 
 
 140 
 
 V. Brooke, 
 
 
 781 
 
 V. Brown, 361 
 
 577 
 
 611, 743 
 
 V. Carter, 
 
 713 
 
 715, 738 
 
 V. Clarke, 
 
 
 683 
 
 V. Farebrother, 
 
 
 45 
 
 ii. Foote, 
 
 
 491, 492 
 
 V. Fraraingham, 
 
 
 25, 26 
 
 V. Fritll* 
 
 
 262 
 
 V. Kelly, 
 
 
 681, 683 
 
 V. Leewright, 
 
 
 175 
 
 V. Locks, &c. Proprietor of, 481 
 
 V. Lowell, 
 
 
 675 
 
 V. Mitchell, 
 
 
 491,492 
 
 V. Nightingale, 
 
 
 596 
 
 V. Osgood, 
 
 728 
 
 755, 762 
 
 V. Parker, 
 
 
 464 n. 
 
 V. Parmlce, 
 
 
 241, 573 
 
 V. Perkins, 
 
 
 241 
 
 V. Proctor, 
 
 
 714 
 
 V. Rolls, 
 
 
 547 
 
 V. Sergeant, 
 
 
 715 
 
 v. Smith, 
 
 
 25, 152 
 
 V. Staniland, 
 
 
 126 
 
 ii. Taswell, 
 
 
 214, 496 
 
 V. Wells, 
 
 
 152 
 
 V. Winslow, 
 
 
 57 
 
 Parker, Jane, in re, 
 
 
 463 
 
 Parkes, enparte, 
 
 
 675 
 
 Parkhurst v. Cory, 
 
 
 120 
 
 V. Dickerson, 
 
 
 378 
 
 V. Lowten, 
 
 
 785 
 
 V. Van Cortlandt, 
 
 56, 140, 
 
 151, 153, 155, 156, 747 
 Parkin v. Thorold, 165, 268, 270 
 
Parkins v. Titus, 562 
 
 Parkinson v. Hanbury, 67, 689 
 
 V. Lucas, 485 
 
 Parkist v. Alexander, 728, 738, 761 
 
 Parkman v. Welch, 714 
 
 Parks V. Jackson, 758, 759 
 
 V. Kucker, 484 
 
 V. White, 687 
 
 I'. Wilson, 221 
 
 Parmelee v. Simpson, 761 
 
 Parnther v. Gaitskill, 50 
 
 Parr v. Kliason, 720 
 
 V. Jewell, 246 
 
 ,«. Lovegrove, 227,228,366,407, 
 
 409, 425, 438 
 
 Parrill v. M'Kinsley, 130 
 
 Parrott o. Sweetland, 672, 674 
 
 Parry v. Car warden, 720 
 
 V. Deere, 569, 
 
 V. Frame, 434 
 
 V. Smith, 637, 786 
 
 V. Warrington, 70 
 
 V. Wright, 748 
 
 Parson v. McCracken, 482 
 
 Parsons v. Freeman, 184 
 
 V. Hoyt, 758 
 
 V. MoKnight, 714 
 
 Parteriche v. Powlet, 158 
 
 Partington, ex parte, 65, 116 n. 
 
 V. Woodcock, 181 
 
 Partridge u. Hatch, 577 
 
 V. Havens, 701, 703 
 
 V. Usborne, 4 
 
 Pasley v. Freeman, 4 
 
 Pasmore, ex parte, 82 
 
 Patch V. Ward, 646 
 
 V. Wild, 198 
 
 Patching v. Dubbins, 696 
 
 Pater t'. Baker, 357 
 
 Paterson v. Long, 26, 27, 231, 382, 383, 
 
 384 
 
 Paton V. Brebner, 306, 382 
 
 V. Rogers, , 350, 352, 633 
 
 Patrick v. Adams, 158 
 
 V. Marshall, 747 
 
 Patten v. Gurney, 4 
 
 V. Moore, 749, 753 
 
 V. Stewart, 6, 550 
 
 Pattenden v. Hobson, 62 
 
 Patterson v. Arthurs, 610 
 
 V. Goodrich, 573 
 
 V. Grace, 127, 699 n. 
 
 V. Linder, 671 
 
 V. Mertz, 211 
 
 u. Slaughter, 791 
 
 V. Stoddard, 179 
 
 Pattison's Appeal, 126 
 
 ED OR INTRODUCED. 
 
 CXXXVll 
 
 P-atton V. Hollidaysburg, 
 
 762 
 
 V. M'Clure, 
 
 151 
 
 V. McFarlane, 
 
 600 
 
 Paul u. Carver, 
 
 26 
 
 V. Chouteau, 
 
 701 
 
 V. Fulto^, 
 
 753 
 
 V Squibb, 
 
 688 
 
 !). Wilkins, 
 
 177 
 
 Paul, &c. V. Brown, 
 
 241 
 
 Paul, Sir H. o. Birm. &c. Ey. Co. 
 
 54, 92 
 Pawleu. Gun, 57,126 
 Payne v. Atterbury, 672 
 V. Bettisworth, 258 
 V. Cave, 13 
 V. Compton, 794 
 V. Graves, 212 
 V. Meller, 294 
 V. Mortimer, 381, 720 
 V. Shedden, 492 
 Paynter v. Carew, 66 
 Paysant v. Ware, 169 
 Peabody v. Fenton, 753 
 V. Tarbell, 233, 701 
 Peach, in re, 463 
 Peachy's case, 701 n. 
 Peacock v. Burt, 738 
 u. Evans, 277, 286 
 V. Pearson, 232 
 V. Penson, 25, 213, 305 
 Peake, ex parte, 675 
 Pearce v. Att. Gen. 199 
 V. Gardner, 62, 71 
 V. -House, 482 
 V. Madison & Ind. Rail- 
 road Co. ■ 76 
 V. Newlyn, 780 
 V. Pearce, 119 
 Pearmain v. Twiss, 656 n. 
 Pearsall v. Chapin, 252 
 Pearse v. Pearse, 785 
 Pearson v. Benson, 690 
 V. Davis, 611 
 V. Lane, 388 
 !'. Morgan, 7, 243, 744 
 V. Pearson, 118 
 V. Spencer, 24 n., 743 
 V: Williams, 40 
 Peart v. Bushel), 57, 668 
 Peay v. Peay, 457 
 Pechel, Sir John, v. Fowler, 62 
 Peck V. Cardwell, 699 
 V. Fisher, 698 
 V. Harriott, 667 
 V. Marriott, 48 
 Pedens v. Owens, 324 
 Peebles v. Reading, 701, 702, 703, 749 
 
CXXXVIU 
 
 INDEX TO CASES CITED OE INTRODUCED. 
 
 Peek V. Matthews, 596, 597 
 
 Peele v. Chever, 4 76 
 
 Peer v. Peer, 701, 702, 704, 705 
 
 Peers v. Barnett, 264 
 
 V. Ceeley, 69 
 
 V. Lambert, 316 
 
 V. Sneyd, 405 n. 
 
 Pegg V. Wisden, 187, 188 n., 268, 270 
 
 343, 345, 352 
 
 Peglerw. White, 370 
 
 Peisch V. Dickson, 168, 169 
 
 Peles V. Jervies, 605 
 
 Pell V. De Winton, 663 
 
 V. Stephens, 57 
 
 Pelletreau v. Jackson, 556 
 
 PeUy V. Maddin, 701 
 
 V. Sidney, 47 
 
 V. Wathen, 434, 565 
 
 Pember v. Mathers, 16, 37, 171, 198 
 
 Pembrooke v. AUenstown, 701 
 
 V. Friend, 195 
 
 Pence v. Duval, 577 
 
 Pendleton v. Booth, 486 
 
 V. Eaton, 646 
 
 Pengal, Lord, v. Ross, 153 
 
 Penn v. Baltimore, Lord, 201 
 
 V. Craig, 99 
 
 V. Glover, 600 
 
 V. Hayward, 201 
 
 V. Tolleson, 98 
 
 Pennell u. Millar, 287 n. 
 
 V. Stephens, 725 
 
 Penniall v. Harborne, 300 n., 400 
 
 Pennill v. Hallett, • 710 
 
 Penniman v. Cole, 723 n. 
 
 V. Hartshorn, 129, 142 
 
 Pennington v. Beeohy, 790 
 
 V. Galland, 24 n. 
 
 V. Gittings, 721 
 
 Pennock's Appeal, 10, 688 
 
 Pennsylvania, &c. Railroad Co. v. 
 
 Dandridge, 76 
 
 Penny v. Allen, 483 
 
 V. Penny, . 225 
 
 V. Pretor, ' 203 
 
 V. Watts, 755, 762, 765, 766, 
 
 795, 798 
 
 Penruddock v. Hammond, 785 
 
 Penrudduck's case, 58 
 
 Pentz V. Stanton, 57 
 
 People V- Everest, 484 
 
 V. Gates, 566, 569 
 
 V. Law, 26 
 
 V. New York, Sheriff of, 785 
 
 V. White, 42 
 
 Pepper i>. Barnard, 376 
 
 Peppercorn v. Peacock, 386 
 
 Peppercorn !>. Wayman, 405 n., 664 
 
 Pequamket Bridge v. Mather, 159 
 
 Peques v. Mosby, 239, 549 
 
 Perens v. Johnson, 689 
 
 Perfect v. Lane, 277 
 
 Perkes, ex parte; 688 n. 
 
 Perkins v. Bradley, 757 
 
 V. Cartwell, 253, 484 
 
 V. Coddipgton, 577 
 
 V. Dunham, 492 
 
 V. Ede, 246, 315 
 
 V. Hayes, 703 
 
 V. Nichols, 701, 702, 706 
 
 V. Webster, 324 
 
 V. Wright, 211, 213 
 
 Perk's Estate, in re, 74 
 
 Perrin, in re, 473, 522 
 
 V. Garfield, 493 
 
 V. Reed, 728 
 
 Perry v. Briggs, 464 n. 
 
 V. Edwards, 600 
 
 V. Fitzhowe, 1 24 
 
 V. Head, i 701 
 
 V. HoU, 757, 772 
 
 V. Logan, 460 
 
 V. McHenry, 701 
 
 V. Meddowcroft, 200 
 
 V. Nixon, 687 
 
 V. Phelips, 708 
 
 V. Wheeler, 239 
 
 Perry Herrick v. Attwood, 712, 767, 
 
 768 
 
 Persons v. Jones, 254 
 
 Peru V. Turner, 133 
 
 Peter v. Beverly, 182 
 
 Peters v. Anderson, 554 
 
 V. Goodrich, 171, 761, 762 
 
 V. McKeon, 359, 361 
 
 Peterson v. Elwes, 451, 452 
 
 V. Grover, 171 
 
 V. Hickman, 747 
 
 Peto V. Hammond, 285, 377, 682, 683, 
 
 779 
 
 Petre v. Duncombe, 232 
 
 V. Petre, 478, 484, 485 
 Petre, Lord, v. Eastern Counties 
 
 Ry. Co. 75 
 
 Petrie v. Clark, 668, 669 
 
 V. Dawson, 33 
 
 Pettibone v. Griswold, 728 
 
 Pettingill v. McGregor, 44 
 
 Pettit V. Shepard, 169 
 
 Pettitt V. Mitchell, 324 
 
 Petty V. Mailer, 460 
 
 Pew V. Lividais, 159 
 
 Peyton v. Stith, 253 
 
 Peyton's Settl. in re, 216, 556 
 
INDEX TO CASES CITED OK INTRODUCED. 
 
 CXXXIX 
 
 Phalen v. Clark, 254 
 
 Phayre v. Perce, 708, 710 
 
 Phelps V. Blount, 556 
 
 V. Conover, 675 
 
 V. Prew, 785 
 
 V. ProtherA, 55, 233, 235, 401 
 
 V. Sawyer, 600 
 
 V. Wilson, 324 
 
 Philbrick v. Ewing, 24 n., 58 
 
 Philbrook v. Belknap, 153 
 
 V. Delano, 645, 671, 702 
 
 Philips V. Crammond, 702, 708 
 
 V. Robinson, 434 
 
 Philliraore v. Barry, 144, 147 
 
 Phillipo V. Munnings, 487, 488 
 
 Phillips, in re, 521, 525 
 
 V. Barbareaux, 646 
 
 V. Belden, 687 
 
 V. Berger, 210 
 
 V. Bistolii, 13 
 
 V. Bowers, 26 
 
 V. Buckingham, Duke of, 219 
 
 V. Caldcleugh, 17 
 
 V. Chamberlain, 171 n. 
 
 V. Costley, 762 
 
 V. Crammond, 701 
 
 V. Edwards, 63 
 
 V. Everard, 209 
 
 V. Fielding, 240, 363 
 
 V. Graves, 206 
 
 V. Gjitteridge, 748 
 
 V. Morrison, 271 
 
 V. Phillips, 699 n., 788, 796, 
 
 797 
 
 V. Redhil, 775 
 
 V. Reichert, 611 
 
 V. Rogers, 484 
 
 V. Sargent, 200 
 
 V. Saunderson, 675 
 
 V. Scott, 324 
 
 V. Sinclair, 482, 484, 486 
 
 V. Smith, 611 
 
 V. Thompson, 151, 153, 155, 
 
 156, 233 
 
 V. Vaughan, 555 
 
 Phillips Academy v. King, 685 
 
 Phillpotts V. Phillpotts, 356 
 
 Phippen v. Stickney, 9 n., 11 
 
 Phipps V. Child, 16, 179, 346, 369, 428 
 
 V. Sculthorpe, 123 
 
 V. Tarpley, 611 
 
 Phyfe V. Warden, 151, 155, 160, 173 
 
 Piatt V. Oliver, 11, 701 
 
 V. Vattier, 253 
 
 Picard v. Hine, 686 
 
 V. Mitchell, 88 
 
 Pickard v. Sears, 743 
 
 Pickering v. Dowson, 56, 833 
 
 V. Langdon, 171 n. 
 
 V. Noyes, 445 n. 
 
 V. Pickering, 259, 268 
 
 V. Shelborne, Lord, 367 
 
 V. Stamford, Lord, 253* 
 
 Picket V. Morris, 378 
 
 Pickett V. Barron, 752 
 
 V. Loggon, 275 
 
 Pickles V. Pickles, 394 
 
 Picquet v. Swan, 715 
 
 Pierce v. Faunce, 753 
 
 - V. Gates, 680, 683 
 
 V. Jackson, 601 
 
 V. Johnson, 577 
 
 V. McKeehan, 701 
 
 V. Nichols, 264 
 
 V. Paine, 153 
 
 V. Rowe, 641 
 
 V. Scott, 405 n., 662 
 
 Pierre v. Fernald, 491, 493 
 
 Pierrepont v. Barnard, 125, 126 
 
 Piers u. Piers, 100, 111 
 
 Pierson v. David, 484, 671, 680, 683 
 
 t). Glean, 58 
 
 V. Hooker, 169 
 
 V. Steortz, 785 
 
 Piggott V. Stratton, 4, 553, 596 
 
 V. Waller, 184, 185 
 
 Pike i;. Balch, 11 
 
 V. Galvin, 556, 577 
 
 V. Goodnow, 755, 775 
 
 V. Morey, 151 
 
 V. Stephens, 725 
 
 V. Vigers, 2, 4, 246, 273, 553, 687 
 
 V. Wilson, 45 
 
 Pillow V. Shannon, 789, 790 
 
 Pillsbury v. Mitchell, 577 
 
 V. Moore, 58, 492 
 
 V. Pillsbury, 703 
 
 Pilmore v. Hood, 220, 248 
 
 Pimm V. Insall, 96, 656 
 
 Pinchain v. Collard, 671, 675 
 
 Pinchin v. London & Blackwall 
 
 Ry. Co. 73, 73 n., 80, 86, 597 
 
 Pinekard v. Ponder, 640 
 
 Pineke v. Curteis, 241 n., 265, 321 
 
 Pinckney v. Hagadorn, 48 
 
 Pindall v. Bank of Marietta, 640 
 
 Pindar v. Wadsworth, 393 
 
 Pingree v. Coffin, 201, 233, 234, 361, 
 
 762 
 Pinkston v. Brewster, 484 
 
 V. Huie, 361 
 
 Pinney v. Fellowes, 700, 701, 702, 708 
 Pinnington v. Galland, 743 
 
 Pinnock v. Clough, 646, 700, 701, 703 
 
cxl 
 
 INDEX TO CASES CITED OR INTRQDUCED. 
 
 Piper V. Piper, 
 Pipkin V. James, 
 Pitcairne v. Ogboarne, 
 Pitcher v. Barrows, 
 
 V. Livingston, 
 V. Rawlins, 
 Pitchers v. Edney, 
 Pitkin V. Leavitt, 
 Pitman v. Poor, 
 Pitney i>. Leonard, 
 Pitt V. Cholmpndley, 
 
 V. Donovan, 
 
 V. Pitt, 
 
 V. Williams, 
 Pitts V. Edelph, 
 
 195 
 134 
 165, 173 
 730 
 611 
 762 
 52 
 600, 611, 612 
 124 
 762 
 625 
 357 
 177 
 592 n. 
 753 
 127, 699 n. 
 Pittsburg, &c. Railroad Co. v. 
 
 Barker, ' 661 
 
 Plant V. James, 610 
 
 V. Taylor, 662 
 
 Plasterers' Co. v. Parish Clerk's 
 
 Co. 491 
 
 Piatt V. Squire, 7, 743, 744 
 
 Piatt, Lady, v. Sleap, 617 
 
 Playfair v. Cooper, 480 
 
 Playfbrd v. Hoare, 389 n., 405 n., 647 
 
 Plessinger i\ Depuy, 566, 569 
 
 Plowden v. Hyde, 184 
 
 Plumer v. Lord, 743 
 
 Plummer ti. Harper, 58 
 
 V. Whiteley, 182 
 
 Plumtre u. O'Dell, 108 
 
 Plymouth v. Carter, 59 
 
 V. Carver, 577, 581, 596 
 
 Plymouth, Earl of, v. Hickman, 708 
 
 Pochin V. Duncorabe, 375 
 
 Poindexter v. MoCannon, 199 
 
 Pole V. Leask, 48 
 
 V. Pole, 705 
 
 Pole's Trusts, OT re, 378 
 
 Pollard V. Barnes, 492, 493 
 
 V. Dwiglit, 600, 610 
 
 V. Shaaffer,' 577 
 
 Pollen V. Brewer, 1 79 
 
 Pollexfen v. Moore, 175, 643, 671, 679, 
 
 679 n., 680 
 
 Polloct r. Wilson, 324 
 
 Polyblank v. Hawkins, 617 
 
 Pomeroy, ex parte, 65 
 
 V. Bailey, 158, 714 
 
 ('. Drury, ' 337, 573 
 
 Pomrpy v. Stevens, 523, 728, 75.5, 762 
 
 Ponsford v. Hankey, 188 n. 
 
 Poole, ex parte, 708, 711 
 
 V. Adams, 291 
 
 V. Coates, 184 
 
 V. Hill, 240, 241 
 
 Poole V. Middleton, 210 
 
 V. Rudd, 53 
 
 V. Shergold, 273, 291, 319, 
 
 405 n., 432, 644 
 
 Pooley V. Budd, 210 
 
 i'. Quilter, 688 n. 
 
 Poor V. Hazleton, 276 
 
 V. Robinson, 462 
 
 V. Woodburn, 728 
 
 Pope V. Biggs, 181 
 
 V. Duncannon, Lord, 289 
 
 V. Garland, 7, 16, 24, 27, 312, 
 
 763 
 
 V. Harris, 213 
 
 V. Hay, 124 
 
 V. Pope, 756 
 
 V. Roots, 273, 293, 295 
 
 V. Simpson, 262 
 
 Popham V. Baldwin, 762 
 
 V. Exham, 690 
 
 V. Eyre, 135, 154, 219, 262 
 
 Popple V. Henson, 267 
 
 Popple well V. Hodkinson, 59 
 
 Porclier v. Gardner, 268 
 
 Pordage v. Cole, 50 
 
 Portarlington .Lord, v. Soulby, 788 
 
 Porter v. Bank of Rutland, 708 
 
 V. Bradley, 611 
 
 V. Cole, 728 
 
 V. Dubuque, 676 
 
 V. King, 518 
 
 V. Nelson, 199 
 
 V. Noyes, 573, 601, 610 
 
 V. Porter, 714 
 
 Porter's, Gregory, Estate, in re, 209 
 
 Portland Bank v. Maine Bank, 538 
 
 Portman v. Mill, 313, 324, 352, 634, 
 
 635 
 
 Portmore v. Morris, 158 
 
 Portmore, Lord, v. Bunn, 578 
 
 V. Goring, 445 
 
 V. Morris, '1 73 
 
 V. Taylor, 277, 279 
 
 Post!). Leet, 97, 114, 117 
 
 Postell V. Postell, 187 
 
 Postlethwaite v. Lewthwaite, 597, 751 
 
 Pott V. Todhunter, 720 
 
 Potter V. Crossley, 210, 227 
 
 V. Gardner, 658, 661 
 
 V. McDowell, 714, 728 
 
 V. Potter, 184 
 
 V. Sanders, 133, 183 
 
 V. Sewall, 160 
 
 V. Taylor, 577, 610 
 
 V. Thornton, 685 
 
 Potts V. Blackwell, 713 
 
 V. Curtis, 277, 281 
 
INDEX TO CASES CITED OK INTRODUCED. 
 
 cxli 
 
 Potts V. Surr, 253 
 
 V. Thames Haven Co. 135 
 
 V. Webb, 261 
 
 V. Whitehead, 132, 133, 134 
 
 Poulet V. Johnson, 701 
 
 Poulson V. Ellis, 241 
 
 Poulter 1). Killingbeck, 125 
 
 Poultney v. Holmes, 125 
 
 Pounsett V. Fuller, 358, 359, 360 
 
 Pow V. Davis, * 44 
 
 Powdrell v. Jones, 457, 709 
 
 Powell V. Clark, 324 
 
 V. Dillon, 136, 762 
 
 V. Divett, 159 
 
 V. Doubble, 29 
 
 17. Edmunds, 15, 16, 159 
 
 «. Healey, 762 
 
 V. Jessopp, 127 
 
 V. Lovegrove, 151, 188 n. 
 
 V. Martyr, 628, 649 
 
 V. Matthews, 205, 467 
 
 V. Monson & B. Manuf. Co. 456, 
 
 458, 601, 700, 701 
 
 V. Powell, 398, 405 n., 701 
 
 V. Rich, 173 
 
 V. Smithson, 21 
 
 V. South Wales Ky. Co. 313 
 
 Power V. Kane, 47 
 
 V. Power, 195 
 
 u. Standish, 777 
 
 Powers V. Fowler, 135 
 
 V. Hale, 273, 275 
 
 V. Mayo, 273 
 
 Powis V. Capron, 405 n. 
 
 Poynder v. G. N. Ry. Co. 86 
 
 Poyntell v. Spencer, 600 
 
 Poyntz V. Fortune, 297 
 
 Prance u. Sympson, 482 
 
 Prankerd v. Prankerd, 704 
 
 Pratt V. Ayer, 700 
 
 V. Carroll, 211, 233, 260 
 
 V. Colt, 519 
 
 u. Law, 233, 260, 268, 315 
 
 V. Ogden, 124 
 
 V. Pliilbrook, 244 
 
 x\ Phillips, 556 
 
 V. Pond, 722 n. 
 
 V. Thomas, 571 
 
 V. Thornton, 68=!, 694 
 
 V. Van Wyck, 671, 679 
 
 Pray v. Waterston, 189, 462 
 
 Preble v. Baldwin, L26, 611 
 
 Prendergast «. Eyre, 104, 303, 3] 3, 
 
 315, 316,-382 
 
 V. Turton, 698 
 
 Prentice v. Achorn, 212 
 
 Prentiss v. Kuss, 56 
 
 Presbyterian Corporation v. Wal- 
 lace, 713 
 Prescott V. Carr, 460 
 V. Hobbs, 577 
 V. Nevers, 481 
 ,u. Trueman, 577, 600, 610, 611 
 V. Walker, 456 
 V. Wright, 5 
 Presley v. Davis, 484 
 Presser v. Hildebrand, 206, 268, 305 
 Prestage v. Langford, 692 
 Preston v. Barker, 115 
 V. Carr, 785 
 V. Crofut, 720 
 V. Liverpool, &c. Ry. Co. 75, 76 
 V. Merceau, 158 
 V. Tubbin, 757, 758, 761 n. 
 Pretty v. Solly, 393 
 Prevost V. Gratz, 253, 484, 687, 688, 
 
 696 
 Price V. Asheton, 135 
 
 V. Berrington, 208 n., 246, 686 
 V. Blakemore, 71, 679 
 
 V. Byrn, 691 
 
 V. Carver, 203, 398 
 
 V. Dyer, 163, 164, 165, 331 
 
 V. Griffith, 134, 138, 318 
 
 V. Harrison, 785 
 
 V. Littlewood, 376 
 
 V. Macaulav, 23, 28, 30, 31, 248, 
 303 
 V. Moxon, 118 
 
 V. North, 23, 31, 108, 120, 325 
 U.Price, 119, 617, 790 
 
 V. Salusbury, 155 
 
 V. Strange, 386, 389 n., 405 n. 
 V. Williams, 241 
 
 V. Worwood, 291 
 
 Prickett u. Badger, 47 
 
 Priddy y. Rose, 381 
 
 Prideaux v. Prideaux, 116 
 
 Prideux v. Gibbin, 184 
 
 Priest V. Cummings, 458 
 
 I'. Rice, 523, 728, 76'i 
 
 Primrose, re, 7, 744 
 
 Prince v. Ca.se, 124 
 
 V. Cooper, 94 
 
 Prince of Wales Ins. Co. v. Athe- 
 naeum Ai'S. Soc. 77 
 Pringle v. Samuel, 325, 331 
 V. Spaulding, 361 
 c. Wilten, ■315,610 
 Prior V. Penpraze, 517, 744 
 Pritchard v. Atkinson, 610 
 W.Brown, 518,519,645, 
 701, 762 
 V. Hicks, 169 
 
cxlii 
 
 INDEX TO CASES CITED OR INTRODUCED. 
 
 Pritcliard v. Ovey, 135, 220, 288 
 
 I!. Quinchant, 172 
 
 Pritchill V. Sessions, 757 
 
 Probert, in re, 204, 399 
 
 Procter ti. Cooper, 761 
 
 Proctor V. Johnson, 605 
 
 V. Warren, 706 
 
 Prodgers v. Langham, 720 
 
 Propert v. Parker, 142, 214 
 
 Proseus v. Mclntire, 701, 706 
 
 Prosser v. Edmunds, 356 
 
 V. Rice, 738, 741, 755 
 
 V. Watts, 405 n., 437, 438 
 
 Prothero v. Smith, 337 
 
 Prouty V. Eaton, 786 
 
 Pryce v. Bury, 468 
 
 Prytharch v. Havard, 202 
 
 Pugh, in re, 463 
 
 V. Bell, 701, 747 
 
 V. Chesseldine, 42, 134, 147, 573 
 
 V. Good, 151, 154 
 
 Pugsley V. Murray, 46 
 
 Pullen V. Bell, 33 
 
 PuUiam v. Newberry, 714 
 
 Pulpress V. African Church, " 70 
 
 Pulsford p. Richards, 4 
 
 Pulvertoft V. Pulvertoft, 721 
 
 Purcell V. Blennerhasset, 485 
 
 , V. Gashorn, 206 
 
 V. Kelly, 696, 787 
 
 V. McCleary, 264 
 
 V. Miner, 152, 160 
 
 Purser v. Darby, 92, 646 
 
 Purvis D. Rayer, 367 n., 368, 369 
 
 Putnam v. Ritchie, 747 
 
 V. Westcot, . 298 
 
 Putney v. Day, 123, 125, 126 
 
 Pye, ex parte, 719 
 
 V. Daubuz, 613 
 
 Pyer v. Carter, 24 n., 58, 743 
 
 Pyke V. North-wood, 188 n., 229 
 
 V. Williams, 151 
 
 Pyle V. Pennock, 33 
 
 Pyles V. Reeve, 400 
 
 Pyncent v. Pyncent, 445 n. 
 
 Pyrke v. Waddingham, 386, 405 n. 
 
 Q. 
 
 Quackenbush v. Leonard, 640 
 
 Quaintrell v. Wright, 169 
 
 Queen v. Birmingham, &c. Ry. Co. 
 
 78, 86, 87 
 V. Chorley, 492 
 
 V. Ellis, 521 
 
 570 
 
 Queen v. General Cem'y Co. 84, 376 
 V. G. Western Ry. Co. 86 n., 87 
 V. Houghton, Lord of Ma- 
 nor ofi 562 n. 
 u. Ir. S. East. Ry. Co. 86 
 V. Lan. & York Ry. Co. 86 n. 
 V. Leeds, &c. Ry. Co. 78 
 V. London & Green. Ry. Co. 73 
 V. London & North Western 
 ' Ry. Co. 87 
 V, Manchester, &c. Ry. Co. 
 
 73 n. 
 V. Middlesex, Reg'r of, 729, 
 731 
 0. S. Devon Ry. Co. 87 
 
 .,. S. W. Ry. Co. 81 
 
 V. Wing, 376 
 
 V. York & North Mid. Ry. 
 
 Co. 78, 86 n., 87 
 
 Queen, The, v. Ambergate, &c. Ry. 
 
 Co. 78, 86 n., 87 
 
 V. Corbett, 562 
 
 Quesnel v. Woodlief, 324 
 
 R. 
 
 Rabbett v. Raikes, 32 
 
 Racouillat v. Rene, 727 
 
 Radcliflf V. Brooklyn, Mayor, &c. 
 
 of, 59 
 
 RadcliiFe v. Anderson, 357 
 
 V. Eursman, 785 
 
 V. Warrington, 259, 260, 
 
 261, 367 n. 
 
 Radford v. Wilson, 790 
 
 Radnor, Lady, v. Rotherham, 624 
 
 V. Vendebendy, 624 
 
 Radnor, Lord, v. Shafto, 188 n., 194 
 
 Ragan v. Gaither, 386, 548 
 
 V. Walker, j701 
 
 Railroad Co. v. Ormsby, 168 
 
 Railstone v. York, &c. Ry. Co. 78 
 
 Raines v. Barker, 462 
 
 Rainy v. Vernon, 46 
 
 Rakestraw i: Hamilton, 671, 683 
 
 Raleigh's, Sir Walter, case, 705 
 
 Ralph, ex parte, 39 
 
 Ramsay v. Brailsford, 213, 239, 273, 
 
 342, 386, 627 
 
 Ramsay's Settl. in re, 556 
 
 Ramsbotham v. Gosden, 160, 162 
 
 V. Mortley, 139, 140 
 
 V. Tunbridge, 140 
 
 Ramsden v. Hurst, 393 
 
 V. Hylton, 718 
 
 V. Manch. &c. Ry. Co. 85 
 
INDEX TO CASES CITED OR INTRODUCED, 
 
 cxHii 
 
 Ramsey v. Eaton, 725 
 
 Rancliff v. Parkyns, 253, 781, 787 
 
 Kand v. Mather, 127 
 
 Randall v. Errington, 252, 694, 695 
 
 V. Hall, 25 
 
 V. McLaughlin, 24 n., 58 
 
 V. Morgan, 700, 718 
 
 f. Phillips, 645,698,713 
 
 V. Randall, 699 n. 
 
 V. Rigby, 590 
 
 V. Roper, 612 
 
 V. Stevens, 481 
 
 Randolph v. Kinney, 577 
 
 II. Perry, 161 
 
 V. Rosser, 646 
 
 V. Ware, 253 
 
 Rangely t'.' Spring, 743 
 
 Ranken v. East and West India 
 
 Dock Ry. Co. 73 n., 81 
 
 Rankin v. Harper, 701 
 
 V. Huskisson, 596 
 
 V. Lay, 297 
 
 V. Matthews, 15, 159 
 
 V. Porter, 688 
 
 Rann v. Hughes, 142 
 
 Rantin v. Robertson, 600 
 
 Rappener v. Wright, 566 
 
 Rasdall v. Rasdafl, 151, 702 
 
 Rastel V. Hutchinson, 150, 703 
 
 Ratcliffe v. Bleasly, 445 
 
 Rathbon v. Budlong, 44 
 
 Rathbone V. McConnell, 124 
 
 Rathbun D. Rathbun, 700,702 
 
 Rathmaler v. Myers, 169 
 
 Rawbone, in re, 378, 379 
 
 Rawlins v. Burgis, 184 
 
 V. Timberlake, 649 
 
 V. Wickham, 247 
 
 Rawson, ex parte, 741 
 
 Ray V. Fletcher, 493 
 
 V. Lynes, 491 
 
 V. Young, 153 
 
 Raybold v. Raybold, 708 
 
 Raymond v. Holden, 701 
 
 V. Raymond, 57/, 599, 603 
 
 V. Simonson, 484 
 
 V. Webb, 108 
 
 Rayne v. Baker, 683 
 
 Rayner v. Grote, 237 
 
 V. Julian, 231 
 
 V. Pearsall, 484, 668 
 
 Rea V. Williams, ^ 697, 698, 816 
 
 Read v. Stedman, 467 n. 
 
 Reade v. Livingston, 712, 714, 718 
 
 Reading i;. Weston, 158,174 
 
 Redding v. Wilkes, 151 
 
 Reddy v. Williams, 762 
 
 Redford v. Gibson, 671, 675, 680, 68*1 n. 
 
 Redheimer v. Pyron, 661 
 
 Redington v. Redington, 701, 703, 704 
 
 Reece v. Try, 785 
 
 Reed's Appeal, 756 
 
 Reed v. Brooks, 119, 120 
 
 17. Chambers, 260 
 
 V. Dickey, 749 
 
 V. Hornback, 29 
 
 V. Lukens, 175, 291 
 
 V. Noe, 315, 316, 386 
 
 V. Warner, 687 
 
 V. Whitney, 457 
 
 V. Williams, 781 
 
 Reeves v. Dickey, 264 
 
 V. Gill, 558 
 
 V. Pye, 130 
 
 V. Reeves, 445 n. 
 
 Regent's Canal Co. v. Ware, 74, 81, 
 
 628, 644, 645 
 
 Regina v. Ambersgate, &c. Ry. Co. 
 
 78, 86 n., 87 
 
 V. Birmingham Ry. Co. 78, 86, 
 
 87 
 
 V. Ellis, 521 
 
 V. Great Western Ry. Co. 
 
 86 n., 87 
 V. Ingleton, 470 
 
 V. Irish South Eastern Ry. 
 
 Co. 86 
 
 V. I^ancashire & Yorkshire 
 
 Ry. Co. 86 n. 
 
 V. Leeds, &c. Ry. Co. 78 
 
 V. London & Greenwich 
 
 Ry. Co. 73 
 
 V. London & North Wes- 
 tern Ry. Co. 78, 87 
 V. Manchester, &c. Ry. Co. 
 
 73 n. 
 
 V. South Devon Ry. Co. 87 
 
 V. South Western Ry. Co. 81 
 
 V. York, &c. Ry. Co. 78, 86 n., 
 
 87 
 
 Regney v. Coles, 337, 573 
 
 Reichart v. Castator, 713 
 
 Reichert v. McClure, 728 
 
 Reid's case, 704 
 
 Reid, ex parte, 766 
 
 V. Langlois, 785 
 
 V. Morrison, 457 
 
 V. Reid, 702 
 
 V. Shergold, 742 
 
 Reigal v. Wood, 741 
 
 Reigard v. McNeil, 1 74 
 
 Reilly v. Fitzgerald, 418 
 
 Reimer v. Stuber, 493 
 
 Reinecker v. Smith, 275 
 
cxliv 
 
 INDEX TO CASES CITED OR INTRODUCED. 
 
 Kemington' v. Deverall, 197 
 
 V. Lintliioum, 147, 148 
 
 Rendlesham, Lord, v. Meux, 405 n. 
 Renforth v. Ironside, 738 
 
 Renshaw v. Gans, 158, 173 
 
 Repp u. Repp, 671,681,682 
 
 Requa I'. Rea, 1 9, 1 1 4, 11 7 
 
 Resor V. Resor, 708 
 
 Retallick ». Hawkes, 238 
 
 Reuss V. Picksley, 132 
 
 Reuter v. Elec. Tel. Co. 77 
 
 Revell V. Hussey, 211, 212, 291 
 
 V. Revell, 522 n. 
 
 Rew V. Lane, 547 
 
 Rex i;. Bellringer, 170 
 
 V. Oracrolt, 121 
 
 V. De la Motte, 544 
 
 V. Uunston, 150 
 
 V. Haddenham, Inhabitants of, 685 
 V. Hendon, Lord of Manor ofj 562 
 V. Horndon, Inhabitants of, 123 
 V. Hungerford Market Co. 78 
 
 V. Lamb, 544, 623 
 
 V. Laindon, Inhabitants of, 158 
 V. London Docks, Commission- 
 ers of, 85 
 u. Manchester Commissioners, 78 
 V. Marsh, 9, 1 
 V. Miller, 1 70 
 V. Osbourne, 170 
 V. Oundle, Lord of Manor of, 562 
 II. Preston, Inhabitants of, ' 566 
 V. Scanimonden, Inhabitants 
 
 of, 158 
 
 V. Smith, 548 
 
 u. Snow, 1 7 7 
 
 V. Standon, Inhabitants of, 123 
 
 V. Varjo, 170 
 
 V. Wickham, Inhabitants of, 158 
 
 i-. Withers, 785 
 
 Reynell «. Long, 440 
 
 V. Sprye, 212 
 
 Reynolds, ex parte, 687, 688 n., 694, 
 
 694 
 
 V. Blake, 107 
 
 V. De Chaums, 9 n. 
 
 V. Dunkirk, 126, 149 
 
 V. Magness, 161 
 
 *. Morris, 701 
 
 V. Nelson, 235, 243, 268 
 
 V. Vance, 299, 324 
 
 V. Vilas, 720 
 
 V. Waring, 154, 156 
 
 Rham <. North, ' 691 
 
 Rhoades r. Sflin, 239 
 
 Rhodes w. Maker, 125 
 
 V. Buckland, 62 
 
 Rhodes v. Bullard, 604 
 
 V. Ibbetson, 17, 226, 338 
 
 V. Rhodes, 151, 152, 154 
 
 Rhode Island u. Massachusetts, 160 
 
 Ricard v. Williams, 492 
 
 Riccard v. Blamire, 443 n. 
 
 Rice V. Burt, 254 
 
 V. Dwight Manuf. Co. 247 
 
 V. Goddard, 549 
 
 V. Gordon, 275 
 
 V. Gove, 57 
 
 n. O'Connor, 155, 156, 728 
 
 V. Peet, 236 
 
 V. Rice, 167, 199, 682 
 
 V. Spottiswood, 577 
 
 V. White, 254 
 
 v. Woods, 169 
 
 V. Worcester, County of, 26 
 
 Rich V. Jackson, 158, 164, 173 
 
 V. Rich, 609, 625 
 
 Richards u. Allen, 153,236 
 
 V. Att. Gen. 85 
 
 (/.Barton, 362,423,517,563 
 
 V. Edick, 361 
 
 V. Fry, 491 
 
 V. Hayward, 130 
 
 V. Jackson, 785 
 
 V. Learning, 683 
 
 V. Porter, 134 
 
 V. Rose, 59 
 
 Richardson v. Baker, 671, 679 
 
 u. Bleight, 171 
 
 V. Boright, 686 
 
 V. Cooper, 158, 163, 165 
 
 V. Dorr, 577, 601, 610, 611 
 
 V. Eyton, 155 
 
 V. Godwin, 169 
 
 V. Horton, 656 
 
 V. Jones, 102, 687 
 
 V. Keerly, 611 
 
 V. M'Causland, 676, 676 n. 
 
 V. M'Kinson, 287, 747 
 
 v. Mitchell, 787 
 
 V. Richardson, 482 
 
 V. Ridgely, 675 
 
 V. Smith, 288, 728, 755 
 
 V. StillingQr, 679 
 
 V. Thompson, 159 
 
 V. Vermont Central 
 
 Railroad, 59 
 
 V. Ward, 105 
 
 V. Whitffield, 482 
 
 V. Woodbury, 174 
 
 Riehart ?i. Scott, 59 
 
 Richmond's case, 76 
 
 Richmond u. Grav, 7,176,262,264, 
 
 268, 344, 386, 396, 402 
 
INDEX TO CASES CITED OR INTEODUCED. 
 
 cxlv 
 
 Kichmond v. North London Rail- 
 way Co. 81 
 Richmond, Duke of, v. Miln, 685 
 Richter v. Selin, 175 
 Rickard v. Barrett, 656 
 Rickards v. Gledstanes, 378 
 Ricker v. Ham, ^ 714 
 V. Kelly, 124 
 Rickert u. Snyder, 600,611 
 Riddell v. Riddell, 579, 593 
 Riddle v. Emerson, 700 
 Rider v. Prion, 481 
 V. Kidder, 701, 702 
 Ridgeley v. McLaughlin, 464 n. 
 Ridgway v. Gray, 31, 311, 382 
 V. Morrison, 743 
 V. Newstead, 253 
 V. Sneyd, 247,333 
 U.Wharton, 129,136,138, 
 141, 145, 149, 151 
 Ridler v. Ridler, 686 
 Ridley v. Hetman, 484 
 V. M'Nairy, 151 
 Rifener v. Bowman, 476 
 Rigby V. MacNamara, 100, 118, 119 
 Rigg V. Swan, 701 
 Riggs V. Dooley, 481 
 V. Murray, 721 
 . V. Sally, 464 n. 
 Right V. Bawden, 703 
 u. Beard, 179 
 V. Bucknell, 558, 739, 739 n. 
 Rightger v. Stall, 646 
 Rigs V. Cage, 563 
 Riley v. Rochester, 685 
 Rimington v. Cannon, 483 
 Ring V. Gray, 728 
 V. McCoun, 702 
 Ringgold V. Bryan, 682 
 V. Ringgold, 63, 640 
 Ripley v. Waterworth, 187 
 Rippingall v. Lloyd, 22, 260, 431 
 Risney v. Selby, 4 
 Rist u. Hobson, 130 
 Ritter v. Brendlinger, 569 
 Rittson V. Stordy, 685 
 Roach V. Martin, 464 n. 
 V. Rutherford, 342, 345, 386 
 V. Wadham, 579, 580, 581, 690, 
 594, 595 
 Roake v. Kidd, 386, 389, 389 n., 405 n. 
 Roat V. Puff, 559 
 Robb JJ. Butterwick, 172,561 
 V. Mann, 291 
 Robbins v. Eaton, 209, 686 
 Roberts v. Berry, 257, 260, 261, 268, 
 
 270 
 
 VOL. I. * 
 
 Roberts v. Beatty, 
 
 271 
 
 V. Brett, 
 
 239 
 
 V. Crofts, 
 
 767, 768 
 
 V. Haines, 
 
 59, 743 
 
 V. Jackson, 
 
 617 
 
 V. Marchant, 
 
 232 
 
 V. Marston, 
 
 258 
 
 V. Massey, 
 
 54, 6 .'8 
 
 0. Roberts, 
 
 117 
 
 V. Rose, 
 
 081, 682 
 
 V. Rowlands, 
 
 238 
 
 V. Salisbury, 
 
 682 
 
 V. Snell, 
 
 383 
 
 V. Stanton, 
 
 742 
 
 u. Tunstall, 
 
 253, 696 
 
 V. Wiggin, 
 
 686 
 
 V. Williams, 
 
 713 
 
 V. Wyatt, 22, 341, 342, 428 
 
 Robertson, in re, 90 
 
 fc. Gt. West. Ry. Co. 232 
 
 V. Kennedy, 495 
 
 V. Lemon, 6 1 1 
 
 V. Lockie, 67 
 
 V. Norris, 67 
 
 V. Robertson, 151 
 
 V. Skelton, 101, 102, 105, 
 
 292, 632, 635 
 
 V. Wilson, 556 
 
 Robeson v. Harwell, 160 
 
 u. Pittenger> 491 
 
 Robinson v. Anderson, 548 n. 
 
 V. Batchelder, 165 
 
 V. Briggs, 6, 70, 690, 756, 
 
 757, 776 
 
 V. Boyd, 720 
 
 V. Crops 3y, • 199, 209 
 
 V. Davison, 738 
 
 V. Fife, 486 
 
 c. Garth, 147, 148 
 
 V. Green, 42, 45 
 
 V. Harman, 369, 361, 640 
 
 V. Heard, 240, 361 
 
 u. Hedge or Hedger, 519, 
 
 523, 540 
 
 V. Hook, 484 
 
 V. Lowater, 658, 660, 662 n. 
 
 V. Macdonnell, 569, 
 
 V. Martel, 714 
 
 V. Miller, 457 
 
 V. Milner, 364 
 
 t'. Musgrove, 25, 31, 63 
 
 V. New York Ins. Co. 45 
 
 V. Page, 163, 167 
 
 V. Prestpn, 697, 698 
 
 V. Rutter (3 Com. L. R.), 50 
 
 u. Rutter (4 El. & BL), 50 
 
 V. Stewart, 713, 714 
 
cxlvi 
 
 INDEX TO CASES CITED OB INTRODUCED. 
 
 Kobinson v. Stowell, 
 
 259 
 
 V. Sykes, 
 
 711 
 
 V. Trofitter, 
 
 63 
 
 V. Wall, 
 
 9 
 
 V. Williams, 
 
 728 
 
 V. Wood, 
 
 398 
 
 V. Woodward, 
 
 537, 761 
 
 Robison V. Codman, 
 
 456 
 
 Robson V. Kemp, 
 
 785, 786 
 
 V. Whittingham, 
 
 236 
 
 Rochard v. Fulton, 
 
 380 
 
 Roche V. Cullen, 
 
 488 
 
 V. O'Brien, 252, 253, 286, 696 
 
 Rochelle u. Harrison, 713 
 
 Rochfort V. Belvidere, Lord, 195 
 
 Rockwell V. Lawrence, 213 
 
 Roddy V. Williams, 720 
 
 Rodgers v. Parker, 25 
 
 Rodman'U. Zilley, 211 
 
 Rod well V. Phillips, 1 25, 1 26 
 
 Roe V. Lidwell, 24 
 
 V. Mitton, 716, 716 n., 719 
 
 u. Neal, 727 
 
 V. Popham, 702 
 
 V. Soley, 196 
 
 Roebuck v. Dupuy, 608 
 
 Roff'ey V. Henderson, 124 
 
 V. Shallcross, 316 
 
 Rogers, ex parte, 379 
 
 U.Atkinson, . 158, 171 
 
 V. Challis, 55, 210, 234 
 
 V. Earl, 172 
 
 V. Garnett, 326 
 
 V. Hull, 718 
 
 V. Humphreys, 181 
 
 V. Jones, 728, 755, 762, 779 
 
 1-. Mort, 227 
 
 V. Murray, 701 
 
 V. Rogers, 661, 687, 688, 689, 
 
 691 
 
 V. Saunders, 260, 262,r268 
 
 V. Searle, 792 
 
 V. Skillicorne, 658, 660 
 
 V. Taylor, 59 
 
 V. Tudor, 297 
 
 V. Ward, 686 
 
 J'. Waterhouse, 386, 405 n. 
 
 V. Wiggs, 179 
 
 Roland v. Miller, 251 
 
 Rolfe V. Chester, 65G 
 
 K. Gregory, 485 
 
 Roll V. Osborne, 585 
 
 Rolleston u. Morton, 111,527 
 
 !7. New, 188 n. 
 
 Rolls V. Graham, 727 
 
 Rolt V. Hopkinson, 728, 739 
 
 Rome v.. Young, 267, 681 
 
 Romily v. James, 400 n. 
 
 Rondeau v. Wyatt, 147, 149 
 
 Rooke V. Kensington, Lord, 1 71 
 
 V. Kensington, Lord (Bea.), 746 
 
 Rooper !>. Coombes, 259, 367 n. 
 
 V. Harrison, 380, 619 
 
 Roper V. McCook, 671, 679, 683 
 
 Root V. Blake, 177, 701 
 
 V. French, 713 
 
 Roots u. Dormer, Lord, 319 
 
 Rorke v. Errington, 522 n. 
 
 Rosamond v. Melsington, Lord, 1 73 
 
 Rose V. Calland, 321, 386, 389 n., 
 
 405 n., 647 
 
 V. Cunynghame, 134, 139, 184, 
 
 193 
 
 V. Daniel, 482 
 
 V. Mead, 61 
 
 V. "Watson, 25 
 
 Rosevelt v. Fulton, 3, 243 
 
 Ross V. Adams, 556 
 
 V. Boards, 307, 382, 383 
 
 V. Hegeman, 701 
 
 V. Heintzen, 683 
 
 V. Hole, 728 
 
 V. Houston, 756 
 
 V. Norvell, 486 
 
 V. Ross, 462 
 
 V. Toms, 464 n. 
 
 u. Turner, 577, 581 
 
 V. AVhitson, 671, 675, 680 
 
 Rosse, Lord, v. Stirling, 263 
 
 Rosseel v. Wickham, 559 
 
 Roswell V. Vaughan, 356, 367 n., 550 
 
 Rotheram v. Rotheram, 656 n. 
 
 Rotherham v. Flynn, 748 
 
 Rothwell V. Dewees, 701 
 
 Rouehe v. Williamson, 685 
 
 Round V. Bell, 489 
 
 Rouse V. Southard, 254 
 
 Routledge v. Grant, 13, 132, 133 
 
 Rowbotham v. Wilson, 59 
 
 Rowe V. Hamilton, • 458 
 
 V. May, 52 
 
 V. Roach, 357 
 
 11. Teed, 149 
 
 Rowell, Matter of, 523 
 
 Rowland v. Witherden, 71 
 
 Rowlands v. Evans, 188 n. 
 
 Rowley V. Adams, 636, 699 n. 
 
 Kowntree v. Jacob, 681 n. 
 
 Rowton V. Rowton, 156, 457 
 
 Royal Briiish Bank, ?n 7-e, 250 
 
 Royce V. Allen, 44 
 
 Royou , . Paul, 269, 641 
 
 Royster v. Shackelford, 252 
 
 Rucker v. Abell, 706 
 
INDEX TO CASES CITED OR INTRODUCED. 
 
 cxlvii 
 
 Kucker v. Cammeyer, 145, 147 
 
 V. Lowther, 573 
 
 RufF V. Bull, 482 
 
 Ruffins; V. Tilton, 714 
 
 Ruffn^r V. MuConnell, 160 
 
 Rugge V. Ellis,- 273 
 
 Ruggles r. Lesure, 123, 124 
 
 Rumbokl V. Forteath, 445 n. 
 
 Rummeiis v. Robins, 122, 132, 133, 149 
 
 Rumsey v. Ruinsey, 95 
 
 Rundal v. Everest, 40 
 
 Runkle V. Johnson, 241 
 
 Runlet r. Otis, 743 
 
 Runnels v. Jackson, 268, 701 
 
 Runyan c. Coster, 685 
 
 Rushbrook v. Hood, 570, 571 
 
 Rushout V. Turner, 667 
 
 Rushton I'. Craven, 390 n., 405 n. 
 
 Rushworth's case, 324 
 
 Russ V. Mebius, 702, 704 
 
 «. Steele, 610 
 
 Russell V. Allen, ' 701 
 
 V. Branham, 331 
 
 V. Clark, 4, 233 
 
 V. Copeland, 361 
 
 V. Eastern Railroad Co. 169, 
 
 188 n. 
 
 V. Harford, 24 n., 58 
 
 V. Hoar, 458 
 
 V. Kearney, 714 
 
 V. Lode, 701 
 
 V. Pellegrini, 290 
 
 V. Plaice, 396, 405 n., 670 
 
 V. Richards, 126 
 
 V. Todd, 679 
 
 V. Watt, 671 
 
 Rutgers v. Kingsland, 738 
 
 Rutherford v. Green, 177 
 
 V. Ruff, 212 
 
 Rutland's!, Countess of, case, 161, 167 
 
 Rutlcdge V. Lawrence, 3til 
 
 V. Rutledge, 182 
 
 ' r. Smith, 627, 629, 661, 700 
 
 Rutley V. Gill, 103 
 
 Rutter u. Marriott, 103 
 
 Ryall ^. Ryall, 702, 708 
 
 Ryden v. Jones, 688 
 
 Ryder c. (iower, 118 
 
 V. Wager, 186 
 
 Rylanil v Smith, 707 
 
 Rylu V. Brown, 277 
 
 V. Swindells, 274, 277 
 
 Ryno V. Darby, 155, 165 
 
 S. 
 Sabin v. Heape, 388, 661, 662 n. 
 
 Sachevcrel c. Bagnol, 440 
 
 Sacia v. Berthoud, 661 
 
 Sadd 0. Maiden, &c. Ry. Co. 77 n. 
 
 Sadler v. Robinson, 252 
 
 Sadlier !'. Biggs, 438 
 
 Sage V. M'Guire, 155 
 
 V. Ranney, 246 
 
 Sagory v. Dubois, 646 
 
 Sain ('. Dulin, 233 
 
 Sainsbury v. Jones, 232, 233, 237 
 
 V. Matthews, 126 
 
 St. Alban's, Duke of, v. Shore, 221, 239, 
 
 241, 363 
 St. Albin V. Harding, 286 
 
 St. Andrews Church v. Tompkins, 728, 
 
 ' 738 
 St. Bartholomew's Hosp. Trustee 
 
 of, m re, 90 
 
 Sainter v. Ferguson, 221 
 
 St. George's Packet Co. in re, 656 
 
 St. John w. Benedict, 211,213 
 
 u. Palmer, 610 
 
 0. Winton, Bishop of, 183 
 
 St. John, Lord, v. Boughton, 482, 487 
 
 V. St. John, Lady, 719 
 
 St. Mary's Church v. Stockton, 658, 
 
 661 
 St. Paul V. Birmingham, &c. Ry. Co. 92 
 St. Paul, Sir H. v. Birmingham 
 
 K} . Co. 54 
 
 St. Paul Division v. Brown, 241 
 
 St. 'J'homas Hosp. Governors of, v. 
 
 Char. Cross Ry. Co. 73 
 
 Sale c. Crompton, 540 
 
 Salisbury r. Hatcher, 217 
 
 Salisbury's, Lord, case, 79 n. 
 
 Salisbury, Lord, v. G. N. Ry. Co. 26, 
 
 79, 86 
 
 V. Wilkinson, 639 
 
 Salkeld !•. Johnston, 490, 491 
 
 V. Vernon, 253 
 
 Sallee v. Croft, 708 
 
 Salmon v. Bennett, 712, 714 
 
 V. Bradshaw, 610 
 
 !•. Cutis, 252, 253, 690, 696 
 
 V. Randall, 77 
 
 Salmon Falls Manuf. Co. ». God- 
 
 dard, 134 
 
 Salomon v. Laing, 76 
 
 Saloway v. Sirawbridge, 66, 405 n., 666 
 Salter V. Bi-adshaw, 278, 286 
 
 V. Cavanagh, 484 
 
 Salter's Company v. Jay, 491 
 
 Saimuirfh v. Beeue, 687, 688, P89 
 
 Saliouu, Lady, c. Philips, 367 ii. 
 
 Sample v. Frost, 786 
 
 Sampson i. Burnside, 124 
 
 u.4Casterby, . 592 n. 
 
cxlviii 
 
 INDEX TO CASES CITED OE INTRODUCED. 
 
 Sampson v. Swettenham, 445 n. 
 
 Sanborn v. Chamberlin, 126, 147, 148 
 
 V. Little, 381 
 
 V. Sanborn, 140, 142, 151, 152 
 
 V. Stetson, 253 
 
 Sandeman v. Mackenzie, 252, 716 
 
 Sanders v. Bolton, 762 
 
 V. Deligne, 625 
 
 'V. Guy, 102 n. 
 
 V. Hyatt, 464 n. 
 
 V. Richards, 389 n., 396,405 n. 
 
 V. Wakefield, 129 
 
 Sanderson v. Cockermouth Ry. Co. 74, 
 
 155, 213 
 
 V. Walker, 691, 695 
 
 Sands v. Codwise, 286 
 
 V. Hildreth, > 720 
 
 Sandys v. Hodgson, 743 
 
 Sanford v. Emory, 259 
 
 San Francisco v. Lawton, 556 
 
 Sanger v. Jiastwood, 714 
 
 Sanquirico v. Benedetti, 210 
 
 Sansom v. Rhodes, 259 
 
 Sargent v. Adams, 169, 241, 573 
 
 Sari V. Bourdillon, 129, 146 
 
 Sarter v. Gordon, 210, 273 
 
 Satterlee v. Bliss, 786 
 
 Saunders v. Annesley, Lord, 245, 355 
 
 V. Boroughs, 691 n. 
 
 V. Cramer, 190 
 
 V. Dehew, 740 
 
 V. Frost, 646 
 
 u. Gray, 102 
 
 V. Hatterman, 2 
 
 V. Musgrave, 180 
 
 V. Robinson, 7, 743 
 
 <,-. Terrill, 718 
 
 Saunderson i\ Jackson, 137, 142, 143 
 
 Savage v. Carroll, 152, 154, 156, 192, 
 
 193, 708 
 
 V. Foster, 743 
 
 V. Humble, 668 
 
 V. Murphy, 714 
 
 V. Taylorj 186, 747 
 
 V. Whitbread, 573 
 
 Savery v. King, 252, 263, 397, 693, 696 
 
 V. Spence, 210 
 
 !). Underwood, 424 
 
 Saville r. Saville, 119, 273 
 
 Savings Bank w. Davis, 730 
 
 Sawyer v. Birchmore, 786 
 
 V. Hammatt, 259, 271, 776 
 
 V. Hovey, 160 
 
 V. Norris, 538 
 
 0. Parker, 569 
 
 Saxon V. Blake, 48 
 
 Say V. Barwiek, » 212 
 
 Say and Seal's, Lord, case, 
 
 
 786 
 
 Sayles v. Blane, 
 
 210 
 
 376 
 
 Say re w. Craig, 
 
 
 240 
 
 V. Townsend, 
 
 
 701 
 
 Scales V. Baker, 
 
 
 707 
 
 V. Maude, 
 
 
 721 
 
 Scanlan v. Turner, 
 
 
 458 
 
 V. Wright, 
 
 
 433 
 
 Scargill v. H.irry, 
 
 
 368 
 
 Scarlett v. Gorham, 
 
 
 758 
 
 V. Hunter, 
 
 
 175 
 
 Scawiri V. Scawin, 
 
 
 704 
 
 Schenck v. Conover, 
 
 
 103 
 
 Schermerhorn v. Barhydt, 
 
 
 683 
 
 V. Burgess, 
 
 569 
 
 572 
 
 V. Niblo, 386, 396, 402 
 V. Vanderheyden, 158 
 Schettiger v. Hopple, 160 
 
 Schettler v. Brunettes, 714 
 
 Sehillinger v. McCann, 645 
 
 Schmaling v. Thomlinson, 44 
 
 Schmalz v. Avery, 169 
 
 Schmidt v. Livingston, 211, 263 
 
 Schnebly v. Ragan, 671, 680, 683 
 
 Schneider v. Heath, 5, 23, 333 
 
 V. Norris, 142 
 
 Schnell v. Schroder, 518 
 
 Scholefield v. Templer, 2 
 
 School Dist. u. Macloon, 151 
 
 V. Rogers, 240 
 
 Schotsmans v. Lancashire & York- 
 shire Railway Co. 233 
 Schreiber r. Creed; 25, 597, 799 
 Schroder v. Schroder, 1 84, 1 85 
 Schutt V. Large, 753, 766, 761 
 Schuyler v. Russ, 332 
 Schwarz v. Stein, 676, 681, 682 
 Schwinge u. London & Blackwall 
 
 Ry. Co. 81 
 
 Scoby V. Blanchard, 645, 701 
 
 Scoones v. Morrell, 375, 405 n., 651 
 
 Scorbrough v. Burton, 646 
 
 Scorell V. Boxall, 125 
 
 Scott V. Avery, 140, 289 
 
 0. Bell, 718 
 
 V. Billgerry, ' 233 
 
 V. Davis, 253 
 
 V. Dunbar, 277, 279, 280, 285, 
 
 669, 749 
 
 V. Duncan, 172 
 
 V. Fenhoullet, 625 
 
 V. Fields, 260, 262, 268 
 
 V. Freeland, 253, 687, 688, 689, 
 
 692, 694 
 
 V. Gallagher, 755, 762 
 
 V. Haddock, 482 
 
 V. Hanson, 3, 330 
 
INDEX TO CASES CITED OK INTRODUCED. 
 
 cxlix 
 
 Scott V. Hastings, Lord, 
 
 380, 536 n. 
 
 V. Henry, 
 
 174 
 
 V. Jackman, 
 
 34 
 
 V. Knox, 
 
 625 
 
 V. Langstaffe, 
 
 219 
 
 V. Littledale, 
 
 314 
 
 i;. Liverpool, Corp. of, 140, 288, 
 
 289 
 
 V. Miller, 357 
 
 I?. Nesbit, 115,116 
 
 W.Nixon, 389, 405 n., 417, 475, 
 
 476, 481 
 
 V. Orbinson, 671, 675, 681 
 
 V. Kayment, 234 
 
 V. Sclioley, 518 
 
 V. Scott, 484 
 
 V. Sykes, 221, 328 
 
 V. Tyler, 668 
 
 V. Walker, 420 n. 
 
 V. Wharton, 229 
 
 Scrafton v. Quincey, 727 
 
 Scripture o. Johnson, 738 
 
 Scroggins v. McDougald, 687 
 
 Scroope v. Seroope, 706 
 
 Scully V. Delany, 357 
 
 Seabourne V. Powell, 612 
 
 Seabury v. Stewart, 179 
 
 Seaforth, Lord, ex parte, 41 
 
 Seagood v. Meale, 134, 139, 153, 154 
 
 Seaman v. Cook, 701, 708 
 
 V. Hicks, 97, 106 
 
 V. Price, 125 
 
 V. Van Rensselaer, 211 
 
 V. Vawdrey, 312, 392, 393, 
 
 405 n. 
 
 V. Woods, 183 
 
 Seamore v. Harlan, 611 
 
 Searle v. Colt, 479 
 
 Sears v. Boston, 210, 213, 361 
 
 V. Munsoh, 762 
 
 V. Smith, 671, 676 
 
 Seaton v. Booth, 179, 181, 319 
 
 V. Mapp, 17, 263, 268, 337 
 
 Sebring v. Mersereau, 386 
 
 Secrest ». Turner, 199 
 
 Seerist v. Twittv, 148 
 
 Seddon v. Senate, 600, 605 
 
 Sedgwick v. Hargrave, 206 
 
 V. HoUenback, 600, 610 
 
 Seeley v. Howard, 241 
 
 Segur V. Tingley, 245 
 
 Seidensparger v. Spear, 123, 124 
 
 Selby w. Alston, 617 
 
 V. Cooling, 67, 405 n. 
 
 V. Pomfret, 739, 747, 748 
 
 17. Selby, 144, 680 
 
 V. Stanley, 675, 681 
 
 Selden v. Delaware & Hudson Ca- 
 nal Co. ^ 1 24 
 V. James, 628, 629 
 V. Williams, 326 
 Selkrig v. Davies, 699 n. 
 Sellers v. Stalcup, 174 
 Sellick u. Trevor, 17,369 
 Sells V. Sells, 171 
 Selsey, Lord, v. Rhoades, 689 
 Semple D. Burd, 671 
 Senhouse v. Christian, 698 
 V. Earle, 720, 781 
 Servis v. Beatty, 671 
 Sessions v. Barfield, 169 
 Seton V. Slade, 102, 129, f82, 241 n., 
 261, 264, 265, 268 
 Sevier ». Greenway, 199 
 Sewall V. Glidden, 719 
 Seward v. Jackson, 714 
 V. Willock, 241, 259, 364, 561 
 Sewel V. Johnson, 120 
 V. Walker, 277 
 Sewell V. Baxter, 702 
 Sexton V. Wheaton, 712, 714 
 Seymour v. Delancey, 4, 211, 212, 244, 
 264i 273, 275, 286, 366, 
 386, 389 
 V. Lewis, 24 n., 58 
 u. Nosworth, 789, 791 
 Shackleford v. Hadley, 5 
 V. Helm, 646 
 Shackleton v. Sutcliffe, 30, 31, 312, 316, 
 331, 405 n. 
 Shadworth v. Temple, 188 
 Shaftesbury, Lord, v. Arrowsmith, 
 
 445 n. 
 Shales V. Shales, 703, 704 
 
 Shall V. Biscoe, 671, 683 
 
 Shallcross v. Weaver, 445 
 
 Shankland's Appeal, 209 
 
 Shann v. Jones, 109 
 
 Shannon v. Bradstreet, 71,' 156, 209 
 V. Comstock, 361 
 
 V. White, 253 
 
 Shapland v. Smith, 386, 387, 389 n., 
 
 405 n. 
 
 Shapley v. Garey, 25 7 
 
 V. Bangeley, 743 
 
 Sharland v. Leifchild, 16, 427 
 
 Sharp 1). Adock, 389 n., 405 n. 
 
 V. Baker, 240 
 
 V. Leach, 253 
 
 V. Milligan, 33, 266 
 
 V. Page, 430 
 
 Sharpe v. Foy, 756 
 
 V. Roahde, 539, 649 
 
 Sharpies v. Adams, 740 
 
cl 
 
 INDEX TO CASES CITED OE INTRODUCED. 
 
 Shaver v. Shoemaker, 
 
 134 
 
 Shaw, ex parte, 
 
 82 
 
 V. Boref, 
 
 660 
 
 V. Botley, 
 
 724 
 
 V. Bunny, 
 
 689 
 
 V. Fisher, 
 
 210, 376 
 
 V. Jakeman, 
 
 172 
 
 V. Jeffery, 
 
 199 
 
 V. Johnson, 
 
 478, 497, 622 
 
 J,. Levy, 
 
 714, 719 
 
 V. Nea e. 
 
 531, 532 
 
 V. Nudd, 
 
 145 
 
 V. Poor, 
 
 727, 728, 761 
 
 V. Read, 
 
 703 
 
 V. lluss. 
 
 458 
 
 o. Shaw, 
 
 122, 153 
 
 V. Stenton, 
 
 59 
 
 V. Stone, 
 
 161 
 
 V. Thackray, 
 
 212 
 
 V. 1'urnpike Co. 
 
 239 
 
 V. Wilkins, 238, 257, 3S1, 611 
 
 u. Wright, 397 
 
 Shay u. Pettes, 160 
 
 Sheard v. Venables, 213 
 
 Shearer v. Fowler, 251 
 
 V. Ranger, 601, 610 
 
 V. Shearer, 698, 699 n., 701 
 
 Sliearin v. Eaton, 253 
 
 Shears, ex parte, 83 
 
 Shedden, in re, 404 n., 462 
 
 V. Att. Gen. 404 n. 
 
 V. Patrick, 404 n., 418, 462 
 
 Sheehan v. Davis, 730 
 
 Sheerness Well Co. OflSoial Man. 
 
 of, V. Poison, 35, 337 
 
 Sheets v. Andrews, 358 
 
 Sheffield v. Mulgrave, Lord, 264,, 386, 
 
 389 n., 405 n. 
 
 Shell V. Incor. Society, 476, 490 
 
 Shelburne v. Inchiquin, 169, 171, 173 
 
 Shelby v. Hearne, 577 
 
 V. Perrin, 675 
 
 V. Shelby, 462 
 
 Sheldon v. Cox, 728, 755, 756 
 
 Shelley's case, 405 n. 
 
 Shelly V. Nash, 285 
 
 Shelmardine v. Harrop, 197 
 
 Shelton v. Darling, 57 
 
 V. Homer, 687, 688, 689, 691, 
 
 692, 695 
 
 V. Livius, 15 
 
 V. Pease, 577 
 
 Shenton v. Jordan,' 221 
 
 Shepard v. Shepard, 686 
 
 Shepherd v. Bevin, 273, 721 
 
 V. Hall, 569 
 
 V. Eain, 333 
 
 Shepherd v. Keatley, 17, 337, 369, 427 
 V. Little, 1 26, 645 
 
 u. M'Evers, 749 
 
 V. White, 706 
 
 Sheppard v. Doolan, 107, 389 
 
 V. Duke, 488 
 
 V. Gosnold, 170 
 
 V. Wilson, 659 
 
 Shepperd v. Murdock, 486 
 
 Sheiatz u. Nicodemus, 675, 679, 680, 
 681 n., 683 
 Sherburne u. Fuller, 151 
 
 V. Shaw, 134 
 
 Sherk V. Endress, 713 
 
 Sherly v. Fagg, 741, 792 
 
 Sherry v. Oke, 237 
 
 V. Picken, 125 
 
 Sherwin v. Shakespeare, 424, 427, 632, 
 637, 645, 647, 650 
 Sherwood v. Beveridge or Bur- 
 ridge, 108, 114 
 V. Marwick, 714 
 V. Robins, 31, 285 
 V. Salmon, 243, 328 
 V. Sutton, 254, 484 
 Sheutze v. Baily, 169 
 Shields v. Mitchell, 727 
 Shillibeer v. Jarvis, 151, 152 
 Shine v. Gough, 624, 738, 747 
 Shipman v. Briggs, 324 
 V. Thompson, 563 
 Shippey );. Derrison, 136,141,144 
 Shirley, ex parte, 560 
 V. Davies, 330 
 V. Shirley, 129, 239, 672 
 V. Spencer, 151 
 V. Stratton, 2, 215, 273, 335 
 V. Watts, 520 
 Shirley, Ann, ex parte, 473 
 Shirly v. Sugar Refinery, k671, 681, 
 
 682 
 Shirras v. Caig, 728 
 
 Shiveley v. Jones, 758 
 
 Shoemaker v. Walker, 457 
 
 Shore v. CoUett, 436, 443 
 
 Short V. Kalloway, 612 
 
 Shotwell V. Murray, 742 
 
 Shovel, Sir Cloudesley, v. Bogan, 324 
 Shreek v. Pierce, 298 
 
 Shrewsbury, Lord, v. Gould, 604 
 
 V. Shrewsbury, 
 Lady, 54, 194 
 Shrewsbury, &c. Ry. Co. v. Lon- 
 don, &c. By. Co. 75, 76, 76 n. 
 Shuffleton v. Jenkins, 257, 262, 268 
 Shultz V. Moore, 727, 761 
 Shumway v. Holbrook, 481, 727 
 
INDEX TO CASES CITED OB INTRODUCED. 
 
 cli 
 
 Shute V. Taylor, 40 
 
 Sibbald V. Lowrie, 343 
 
 Sibbering v. Balcarras, Lord, 285, 286, 
 
 485 
 Sibley v. Ellis, 492 
 
 V. Holden, 26 
 
 V. Leffingwell, 728, 755, 762 
 Sibson V. Fletcher, 741 
 
 Sibtliorp V. Brunei, 240 
 
 Sicard v. Davis, 727 
 
 Siddell V. Sims, 239 
 
 Siddon v. Charnells, 741 
 
 Sidebotham, ex parte, 7, 343, 350, 353 
 V. Barrington, 264, 350, 
 405 n., 425, 649 
 Sidmouth v. Sidmouth, 704 
 
 Sidny v. Kanger, 688 
 
 Sieman v. Austin, ■ 702 
 
 Siemon v. Schurck, 701 
 
 Siggers v. Evans, 706 n. 
 
 Sigourney v. Larned, 727, 761 
 
 Sikes V. Lister, 177 
 
 V. Wild, • 358, 360 
 
 Simmons i\ Cornelius, 152 
 
 u. Heseltine, 362, 388, 400, 
 400 n. 
 U.Hill, 151,155,211 
 
 V. Tongue, 102 
 
 Simms v. Killian, 125 
 
 V. Marryat, 400 n. 
 
 Simon v. Broi^n, 761 
 
 , V. Gibson, 749 
 
 V. Motives, 53, 147, 148 
 
 Simonds v. Catlin, 42, 1^8 
 
 Simons v. Patchett, 44, 237, 358, 361 
 Simpkins u. Rogers, 124 
 
 Simpson v. Clayton, 589 n. 
 
 V. Dendy, 26, 375 
 
 V. Gutteridge, 405 n. 
 
 ij. Hawkins, 315, 316, 600 
 V. Howden, Lord, 75 
 
 V. Lamb, 47, 693 
 
 V. Lancaster, &c. Ry. Co. 78 
 V. Margitson, 46, 170, 257 
 V. Morley, 536 
 
 V. Munder, 671 
 
 V. Pettus, 148 
 
 V. Sadd, 343, 367 n. 
 
 Sims V. Boaz, 236, 239 
 
 V. Eastland, 476 
 
 V. Hutchins, 122, 153, 236 
 
 V. Lewis, 233 
 
 V. Lively, 658 
 
 K McBwen, 153 
 
 V. Richardson, 753 
 
 Sinard v. Patterson, 158 
 
 Sinclair v. Jackson, 71, 487, 556, 645 
 
 Singleton v. Lewis, 
 Siree v. Kirwan, 
 Siter's Appeal, 
 Siter V. M'Clanachan, 
 Sites V. Keller, 
 Sitwell V. Bernard, 
 
 641 
 14 
 175 
 755 
 153 
 70 
 
 Skarf u. Soulby, 706, 706 n., 712, 714 
 
 Skeats v. Skeats, 703 
 
 Skeels v. Shearly, 521 
 
 Skeggs V. Nelson, 683 
 
 Skelton's case, 352 
 
 Skelton v. Cole, 134, 136, 140 
 
 Skerratt v. Nor. Staf. Ry. Co. 78 
 
 Skettjf- Whitmore, 702 
 
 Skidmore v. Bradford, 703, 706 
 
 Skinner, in re, 64 
 
 V. Dayton, 57, 221 
 V. M'Douall, 135, 140, 149 
 
 V. Miller, 199 
 
 V. Stacy, 196 
 
 V. Stouse, 743 
 
 Skipwith V. Shirley, 437 
 
 Skottowe V. Williams, 252, 253, 696 
 
 Skull V. Glenister, 16 
 
 Slack V. McLagan, 211, 676 
 
 V. Sharpe, 37 
 
 Slaney v. Wade, 419 
 
 Slater v. Dangerfield, 467 
 
 V. Dudley, 721 
 
 V. Hill, 151 
 
 V. Maxwell, 11, 273 
 V. Rawson, 573, 577, 599, 600 
 
 Slaymaker v. St. John, ' 701 
 
 Sleddon i'. Cruikshank, 127 
 
 Slee V. Manhattan Bank, 486 
 
 V. Manhattan Co. 199, 486 
 
 Sleeman, in re, 497 
 
 Slim V. Croucher, 744 
 
 Slingluff V. Eckel, 11 
 
 Sloane v. Cadogan, 719, 816 
 
 Slocum V. Marshall, 275, 701 
 
 Slomanu. Heme, 785 
 
 V. Walter, 221 
 
 Sloo V. Law, 271 
 
 Sloper, in re, 85 
 V. Fish, 386, 389 n., 405 n., 539, 
 654 
 
 Slothower v. Gordon, 324 
 Small V. Attwood,4, 215, 253, 255, 266, 
 275, 344, 553, 641, 655, 696 
 
 ' V. Mar wood, 664 
 
 Smart v. Harding, 125 
 
 V. Morton, 743 
 
 V. Prujean, 185 
 
 V. Sanders, 563 
 
 Smartle v. Penhallow, 703 
 
 Smedley v. Varley, 688 
 
clii 
 
 INDEX TO CASES CITED OR INTRODUCED, 
 
 Smiley v. Wi'ight, 
 
 457 
 
 £mith, ex parte, 
 
 84 
 
 r. Ai'ton, 
 
 484, 485 
 
 11. Adams, 
 
 457 
 
 v.- Allen, 
 
 715, 719 
 
 V. Arnold, 
 
 42, 130, 134, 138, 
 
 147, 148 
 V. Babeock, 3, 5, 243 
 
 V. Baker, 701, 745 
 
 V. Bearmer, 184 
 
 u. Beatty, 5 
 
 V. Beiufort, Duke of, 445 n. 
 V. Bell, 169 
 
 V. Benson, 126 
 
 V. Bishop, 254 
 
 V. Boston, C. & M. Rail- 
 road, 288 
 V. Brotherline, 690 
 V. Burnam, 261, 265 
 V. Burnham, 127, 6^9 n., 701, 
 703, 708 
 V. Calloway, 484 
 V. Camelford, Lord, 701 
 V. Cannell, 601 
 V. Capron, 214, 232, 345, 371 
 V. Carney, 220 
 V. Chaney, 326, 549 
 V. Cherrill, 714, 716 
 V. Chichester, 434 
 i>. Child, 386 
 V. Clarke, 9, 10 
 V. Clay, 253 
 V. Compton, 608, 612 
 V. Constant, 225 
 V. Cooke, 445 n. 
 V. Daniel, 749 
 V. Deacon, 710 
 V. Death, 390 n., 403, 405 n. 
 t.. Dolman, Sir T. 265,629 
 V. Dublin & Bray B.y. Co. 81 
 V. Edrington, 462 
 V. Ellis, 18, 338 
 i;. Eustis, 457 
 V. Evans, 324, 680, 767 
 V. Fly, 253, 254, 324 
 V. Garland, 720, 720 n. 
 V. Greeley, 160 
 V. Greenlee, 11 
 V. Greer, 718 
 V. Guyon, 658, 660 
 V. Harrison, 247 
 V. Haynes, 573 
 V. Henry, 241 
 V. Hibbard, 177, 439, 643, 671 
 V. Howell, 702 
 ti. Hughes, 2, 3, 5 
 V. Jackson, 229 
 
 Smith V. Jeffreys, 189 
 
 V. Jones, 147, 184, 462 
 
 V. Kay, 253 
 
 V. Lambeth, 755 
 
 V. Leigh, 648 
 V. Lewis, /1 58, 236, 239, 241 
 
 V. Lipscomb, 239 
 V. Lloyd, 52, 229, 230, 321, 476 n. 
 
 V. Low, . 762 
 
 V. Mackin, 160, 245, 742 
 
 u. Matthews, 700 
 
 D.Maxwell, 172 
 
 V. Michell, 482 
 
 V. Mitchell, 4, 5 
 
 u. Neale, 132 
 
 V. Nelson, 107 
 
 V. Osborne, 746 
 
 V. Patten, 1 75 
 
 V. Pearson, ] 74 
 
 u. People's Bank, 199 
 
 V. Phillips, 748 
 
 V. Price, 1 73 
 
 V. KicHards, 56 
 
 V. Rose well, 741 
 
 V. Sackett, 701 
 
 V. Shane, 762 
 
 V. Shephard, 600 
 
 V. Skelton, 629 
 
 V. Slocomb, 26 
 
 V. Smeltzer, 241 
 V. Smith, 127, 15J, 152, 154,241, 
 326, 379, 714 
 
 t>. Smith (Ir.), 195,478 
 
 V. Smith (Jur.), . 195 
 
 V. Smith (4 Wend.), 40 
 
 V. Spencer, 457 
 
 u. Sprague, 611 
 
 V. Spooner, 357 
 
 V. Stewart, 179 
 
 V. Strong, ■ 577, 611 
 
 u. Surman, 125, 126, 127, 132 
 
 V. Talbot, 253 
 
 V. Thomas, , 482 
 
 V. Thompson, 253 
 
 t/. Toleher, 321,322 
 
 V. Tombs, 128 
 
 V. Trowsdale, 168 
 
 V. Turner, 152 
 
 V. Underdunck, . 154 
 
 V. Ward, 688 n. 
 
 V. Watson, 139 
 V. Watts (4 Drew.), 18, 27, 29 
 V. Watts (2 L. J. N. S.), 18 
 
 V. W^ilkinson, 701 
 
 V. Woodhouse, 239 
 
 V. Wooding, 179 
 
 V. Wyley, - 572 
 
INDEX TO CASES CITED OR INTRODUCED. 
 
 cliii 
 
 Smith V. Yell, 
 
 714 
 
 V. Yule, 
 
 762 
 
 Smith, Sir W. v. Wheeler, 
 
 664 
 
 Smithson v. Powell, 
 
 31 
 
 Smithwick v. Jordan, 
 
 462 
 
 Smoot V. Eea, 
 
 241, 762 
 
 Smout V. Ilberry, 
 
 44 
 
 Smull V. Jones (Watts & S.), 
 
 V. Jones (6 Watts & S.), 
 Smyth V. Carlisle, 714, 719 
 
 V. Craig, ' 563 
 
 Smythe, in re, 466 
 
 Snag's case, 789, 791 
 
 Snead v. Green, 149 
 
 Snedaker v. Moore, 215 
 
 Sneesby v. Thorne, 216, 668 
 
 Snelgrovew. Snelgrove, 788, 789, 790, 
 
 791 
 Snell V. Bickley, 33 
 
 Snelling v. Squint, 761 
 
 Snoddy v. Kreutch, 476 
 
 Snow V. Booth, 478 
 
 Snowden v. Wilas, 124, 765 
 
 Snyder v. Griswold, 56 
 
 V. Sponable, 756 
 
 Soames v. Edge, 55, 234 
 
 Soar V. Foster, 703, 706, 707 
 
 Sober v. Kemp, 747 
 
 Sohier v. Williams, 386, 405 n. 
 
 Solinger v. Jewett, 215, 324 
 
 Solms I'. McCuUock ■ 728 
 
 Solomon v. Turner, 174 
 
 V. Vintners' Co. 59 
 
 Somerville v. Trueman, 130 
 
 Somes V. Brewer, 720, 753 
 
 V. Skinner, 556 
 
 Soper V. Stevens, 251 , 549 
 
 Sorrell v. Carpenter, 758, 759 
 
 Soule V. Heerman, 299 
 
 Souter V. Drake, 16, 337, 368 
 
 South V. Hoy, 577 
 
 V. Thomas, 481, 482 
 
 Southby u. Hutt, 7,19,34,346,353, 
 
 430 
 V. Stonehouse, 445 n. 
 
 South Collingham, Kector of, ex 
 
 parte, 90 n., 354 
 
 Southcomb v. Exeter, Bishop of, 55, 
 
 266, 347 
 South East. Ey. Co. in re, 92 
 
 South Eastern Ry. Co. v. Knott, 79, 
 
 216 
 
 Southerin v. Mendum, 457 
 
 South Wales Ky. Co. ex parte, 86 
 
 re, 91 
 
 w. Wythes, 78 n., 
 
 213, 288 
 
 South Yorkshire, &c. Ry. Co. in re, 87 
 
 Souzer v. De Meyer, 787 
 
 Sowarsby v. Lacy, 659 
 
 Sowden v. Sowden, 709 
 
 Sowerby v. Brooks, 762 
 
 Sowle V. Champion, 120 
 
 Spackman's case, 252, 253 
 
 Spackman v. Gt. Western Ry. Co. 73 
 
 V. Timbrell, 612 
 
 Spader v. Lawler, 728 
 
 Spalding v. Conzelman, 152 
 
 V. Shalmer, 658, 660 
 
 Spangler v. Springer, 158 
 
 Sparks v. Garrigues, 640 
 
 V. Hess, 671 
 
 «. State Bank, 728 
 
 V. White, 742 
 
 Sparrow v. Cooper, 188 n. 
 
 c. Oxford, &c. Ry. Co. 16, 73, 
 
 78 
 
 Spartati v. Benecke, 158, 240 
 
 Spaulding v. Scanland, 727 
 
 Speake v. Sheppard, 239 
 
 Speakman v. Eorepaugh, 386 
 
 Spedding v. Nevell, 44 
 
 Speer v. Speer, 645 
 
 Speise V. McCoy, 714 
 
 Speldt V. Lechmere, 746 
 
 Spence v. Hogg, 183 
 
 V. Robbins, 462 
 
 Spenceley v. Sehulenburgh, 786 
 
 Spencer's case, 577, 581, 583, 585, 
 
 589 n., 596 
 
 Spencer v. Boyes, 593 
 
 V. Field, 57 
 
 V. Marriott, 602 
 
 V. Pearson, 738 
 
 V. Topham, 402, 405 n., 693, 
 
 756, 757 
 
 Sperling v. Trevor, 396 
 
 Spicer u. Cooper, 134 
 
 Spickernell v. Hotham, 482 
 
 Spiller V. Scribner, 743 
 
 V. Spiller, 229 
 
 V. Westlake, 240 
 
 Spirett V. Willows, 714 
 
 Spittle V. Lavender, 57 
 
 Spofford V. Manning, 762 
 
 V. Weston, 728, 755, 761, 
 
 762 
 
 Sponable v. Snyder, 728 
 
 Spooner's Est. in re, 87, 88 
 
 Sprague v. Baker, 577, 600, 611 
 
 Spratley v. Griffiths, 275 
 
 Spratt V. Hobhouse, 725 
 
 V. Jeffery, 16, 337, 368 
 
 Spring V. Chase, 611 
 
cliv 
 
 INDEX TO CASES CITED OE INTEODUCED. 
 
 Spring V. Gray, 484 
 
 V. Parkman, 727 
 
 V. Pride, 692 
 
 V. Sandford, 106, 386 
 
 V. South Car. Ins. Co. 378 
 
 Springer v. Walters, 671 
 
 Sproule V. Prior, 679, 680 
 
 Sprye v. Hyatt, 458 
 
 V. Porter, ' 357 
 
 Spunner v. Walsh, 7, 299, 762 
 
 Spurgeon v. Collier, 718 
 
 Spurru. Benedict, 215, 243, 248, 251, 
 
 314,326, 549 
 
 Spurrier v. Elderton, 50, 639 
 
 V. Fitzgerald, 149 
 
 V. Hancock, 262, 294 
 
 V. Mayoss, 642 
 
 Squire v. Baker, 273 
 
 V. Campbell, 25 
 
 V. Ford, 748 
 
 V. Harder, 702 
 
 V. Tod, 236, 238, 363 
 
 Staats r. Ten Eyck, 611 
 
 Stabback v. Leatt, 396 
 
 Stacey v. Elph, 687, 692 
 
 Stackhouse v. Jersey, Lady, 738, 767, 
 
 794, 798 
 
 Stackpole v. Arnold, 158, 169 
 
 ' V. Curtis, 493 
 
 V. Robins, 645 
 
 Stackpoole v. Arnold, 57 
 
 V. Curtis, 111 
 
 I'. Stackpoole, 720 
 
 Stadt V. Lill, 129 
 
 StaiTord «. Van Rensselaer, 671, 680 
 
 Stainbank v. Fernley, 249 
 
 Staines v. Morris, 37, 561, 646, 649, 653 
 
 V. Shore, 10 
 
 Staley v. Kneeland, 642 
 
 Stall V. Cincinnati, 701 
 
 Stalling V. Farmer, 169 
 
 Stallings v. Foreman, 688 
 
 V. Freeman, 688 
 
 Stamford, Lord, v. Dunbar, 490, 491 
 
 Stammers v. Dixon, 1 70 
 
 Stamp Duty, in re, 568 
 
 Stamps V. Birmingham, &c. Ry. Co. 78 
 
 Standifer v. Davis, 241 
 
 Standley v. Hemington, 241 
 
 Stanhope v. Verney, Lord, ' 682 
 
 Stanhope's, Lord, case, 252, 253, 321 
 
 Stanhouse v. Gaskell, 405 n. 
 
 Stanley v. Brannon, 703 
 
 V. Chester & Birkenhead 
 
 Ry. Co. 75 
 
 V. Hayes, 603 
 
 V. Perley, 728, 756 
 
 Stanley v. Robinson, 
 
 
 211 
 
 Stannard v. Forbes, 
 
 605 
 
 606 
 
 V. Ullithorne, 
 
 
 573 
 
 Stansell v. Roberts, 
 
 
 683 
 
 Stansfield v. Johnson, 
 
 147, 
 
 148 
 
 Stanton v. Camp, 
 
 
 57 
 
 V. Green, 
 
 
 713 
 
 V. Tattersall, 
 
 16, 24, 
 
 335 
 
 Staples V. Spring, 
 
 
 58 
 
 Stapylton v. Scott, 321, 351, 389 n., 
 
 402, 405 n. 
 
 Stark V. Canady, 701 
 
 Starkie, in re, 467 
 
 Starr v. Starr, 701 
 
 State V. Elliot, 33 
 
 V. Mansfield, Commis. of, 685 
 
 V. Newark, 685 
 
 State Bank of Indiana v. Harrow, 715 
 
 Staynrode v. Locoek, 614 
 
 Stead V. Course, 99 
 
 V. Dawber, 164, 167, 260 
 
 V. Liddard, 239 
 
 V. Nelson, 206 
 
 Steadman v. Galloway, Lord, 267 
 
 Stearns v. Hall, 165 
 
 V. Hubbard, 149, 151 
 
 V. Swift, 458 
 
 Stebbins v. Eddy, 56, 324, 325 
 
 Stedwell V. Anderson, 160 
 
 Steed «. Whitaker, 757 
 
 Steel V. Cook, 462 
 
 V. Prickett, 375 
 
 Steele v. Ellmaker, 9 n. 
 
 V. McElroy, 44 
 
 V. Midland Ry. Co. 73 
 
 V. Mitchell, 751 
 
 V. Pliilips, 111, 519 
 
 V. Waller, 395 
 
 V. Worthington, 273, 645 
 
 Steere v. Steere, 159, 700, 701, 702 
 
 Stein V. Burden, 492 
 
 Steiner v. Baughman, 600 
 
 Stoinhauer v. Witman, 251, 549 
 
 Step V. Alkine, 306 
 
 Stephen v. Yandle, 484 
 
 Stephens v. Bateman, 276 
 
 K Benson, 124 
 
 V. Brydges, 619 
 
 V. Hotham, 69, 209 
 
 V. Mattox, 786 
 
 V. Medina, 241 
 
 V. Olive, 719 
 
 Stephens's Appeal, 671 
 
 Stephenson v. Davis, 201 
 
 V. Dunlap, 239 
 
 t. Harrison, 361 
 
 V. Maxwell, 628 
 
INDEX TO CASES CITED OR INTRODUCED. 
 
 clv 
 
 Stephenson v. Royce, 767 
 
 Sterling v. Baldwin, 126 
 
 V. Peet, 600, 611 
 
 Sterry v. Arden, 714, 715, 719, 720, 
 
 762 
 
 Stetson V. O'Sullivan, 686 
 
 Stevens, ex parte, 86, 88 
 
 V. Adanison, 331 
 
 V. Austen, 401, 405 n., 665 
 
 V. Baily, 201 
 
 V. Bomar, 482 
 
 V. Cooper, 159, 160, 167, 680 
 
 V. Dobell, 56 
 
 V. Fuller, 3 
 
 V. Griffith, 158 
 
 V. Guppy, 8, 179, 233, 843, 
 
 439 
 
 U.Harrow, 713 
 
 V. Legh, 51 
 
 V. Morse, ,712, 714, 727, 761 
 
 V. Owen, 458 
 
 V. Stevens, 123, 124, 743 
 
 V. Wilson, 701 
 
 V. Winship, 480 
 
 Stevenson v. Lambard, 598 
 
 V. McReary, 482 
 
 U.Maxwell, 257,627,628, 
 
 629, 630 
 
 Steward v. Allen, 518 
 
 V. Blakeway, 699, 699 n. 
 
 Stewart's case, 252 
 
 in re, 85 
 
 1,. Alliston, 28, 213, 348 
 
 V. Andrews, 330 
 
 V. Brown, ' 701 
 
 !;. Careless, 149, 149 n. 
 
 V. Conyngham, Lord, 7, 235, 
 
 315,350,389, 392,405 n. 
 
 764, 775 
 
 V. Dailey, 713 
 
 V. Doughty, 125 
 
 V. Drake, 577, 610, 611 
 
 u. Ferguson, 672 
 
 V. Hutchins, 174 
 
 V. Button, 671 
 
 V. Iglehart, 713 
 
 U.Ives, 671,680,681 
 
 V. McSweeney, 762 
 
 V. Rogers, 714 
 
 V. State, 1 61 
 
 V. Stewart, 245, 355 
 
 Stikeman v. Dawson, 209 
 
 Stile u. Griffin, 671 
 
 Stileman v. Ashdown, 705, 718 
 
 Stillwell V. McDonald, 728 
 
 Stilwell V. Mellersh, 106 
 
 V. Wilking, 275 
 
 Stimson u. Meade, 109 
 
 Stinchfield v. Little, 57, 730 
 
 Stirnermaun v. Cowing, 563 
 
 Stitzell V. Kopp, 257 
 
 Stock V. Aylward, 613 
 Stockbridge Iron Co. v. Hudson 
 
 Iron Co. 160 
 
 Stocker v. Dean, 188 n. 
 
 V. Wedderburn, 217, 221 
 
 Stockman v. Hampton, 440, 441 
 
 Stocks V. Van Leonard, 254 
 
 Stockton V. Cooke, 252 
 
 Stoddart v. S*nith, 316, 319 
 
 Stoever v. Whitman, 462 
 
 Stokeman v. Dawson, 743 
 
 Stokes V. Moore, 135, 142, 144 
 
 V. Russell, 583, 592 
 
 Stokoe u. Robson, 197 
 
 0. Singers, 492, 494 
 
 Stone V. Bennett, 640, 641 
 
 V. Bucknor, 233 
 
 V. Clark, 169 
 
 V. Commercial Ry. Co. 81 
 
 V. Denny, 3, 5, 244 
 
 i). Godfrey, 484, 485 
 
 V. Gwillim, 367 n. 
 
 V. Hooker, 600 
 
 c. Locke, 641, 646 
 
 V. Parker, 195 
 
 V. Smoot, 762 
 
 V. Sprague, . 158, 165, 179 
 
 V. State, The, 44 
 
 t;. Van Heythuysen, 719 
 
 V. Whiting, 123 
 
 V. Yea, 598 
 
 Storer v. Freeman, 169 
 
 Storey v. Lennox, Lord George, 785 
 
 Storrs V. Barker, 7, 742, 743, 744 
 
 Storry v. Walsh, 635, 658 
 
 Story V. Conger, 573 
 
 V. Odin, 26, 491 
 
 V. Windsor, Lord, 753, 788, 789 
 
 Stouffer V. Coleman, 671 
 
 Stoughton I). Pasco, 728 
 
 Stourton, Lord, v. Meers, Sir 
 
 Thomas, 264 
 
 Stout V. Jackson, 611 
 
 Stow V. Meserve, 728 
 
 o. Russell, 268 
 
 V. Stevens, 573 
 
 V. Tifft, 520 
 
 Stowell V. Bennett, 577, 611 
 
 V. Robinson, 165, 257, 258, 259, 
 
 260 
 
 Strachan's Estate, in re, 90 
 
 Stradcr v. Lambeth, 161 
 
 Strangways v. Bishop, 3, 7, 764 
 
clvi 
 
 INDEX TO CASES CITED OR INTRODUCED. 
 
 Stratford v. Bosworth, 132, 141 
 
 V. Twynam, 689 
 
 Strathmore, Lady, v. Bowes, 184 
 
 Stratton v. Dialogue, 701 
 
 V. Pettit, 495 
 
 Stray u. Russell, 210,371 
 
 Streatfield, in re, 699 n. 
 
 Street v. Brown, s 238, 445 
 
 Stretton v. , 103 
 
 Strickland v. McCormiek, 495 
 
 V. Strickland, 459 
 
 ■V. Turner, 102, 247. 274, 
 296 
 Strickler v. Todd, 492 
 
 Strimpfler v. Roberts, 702 
 
 Strode v. Blackburne, 444, 445 n., 
 453 n., 793, 794 
 «. Falkland, Lady, 169 
 
 Strohecker v. Farmers' Bank, 161 
 
 Strong B. Perkins, 727 
 
 V. Sliumway, 611 
 
 V. Stewart, 174 
 
 t. Strong, 98, 451 
 
 Stronge v. Hawkes, 5, 558, 742, 746 
 Stroud V. Lockhart, 728 
 
 Stroughill V. Anstey, 62, 396, 6G0, 661 
 V. Gulliver, 152, 718 
 
 Stryker v. Vanderbilt, 158, 165 
 
 Stuart, ex parte, 452 
 
 u. Ferguson, 672 
 
 V. Kissam, . 687, 688 
 
 V. London & Northwestern 
 Railway Co. 210 
 
 Stuart, Ld. J. «. London & North- 
 western Ry. Co. 76, 217 
 Stubbs V. Sargon, 107, 437 
 Stuckey v. Drewe, 723 n. 
 StuU V. Hurtt, 324 
 Stump V. Gaby, 253, 286, 689 
 Sturge V. Starr, 742 
 V. Sturge, 275 
 Sturgis V. Champneys, 560 
 I'. Morse, 484, 485 
 Sturtevant v. Jaques, 386 
 Stuyvesant v. Hall, 758, 761 
 V. New York, 210,236,577 
 Styles V. Wardle, 257 
 Sublette V. Tinney, 484 
 Suffield V. Brown, 24 n., 58, 743 
 Suiter V. Turner, 753, 762 
 Sullivan o. Bayley, 115 
 V. Ferguson, 671 
 V. Jacob, 212 
 u. Sullivan, 112 
 V. Tuck, 210 
 Summers v. Griffiths, 275 
 Sumner v. Murphey, 713 
 
 Sumner v. Williams, 69, 606, 60! 
 
 Sumpter v. Cooper, 721 
 
 Sunderland u. Sunderland, 701, 702 
 
 70( 
 
 Sunderland, Freemen of, ex parte, 8; 
 
 Surcombe v. Pinniger, 151, 71i 
 
 Sutherland v. Briggs, 15] 
 
 V. Sutherland, 44{ 
 
 Sutphen V. Fowler, 201 
 
 Sutter V. Ling, 17; 
 
 Sutton V. Chetwynd, 716, 71 ; 
 
 V. Cole, 68J 
 
 V. Dillaye, 75e 
 
 V. Montfort, Lord, 37( 
 
 U.Page, 61] 
 
 V. Sears, 12( 
 
 Suydam v. Jones, 158, 57 1 
 
 SwafFord v. Whipple, 61] 
 
 Swain V. Fidelity Ins. Co. 33; 
 
 Swaisland u. Dearsley, 11, 14, 161, 21< 
 
 Swan, ex parte, 549, 550, 735 
 
 V. Cox, 24( 
 
 0. Drury, 239, 241, 575 
 
 Swanborough v. Coventry, 2( 
 
 Swann v. Phillips, ' 
 
 Swannock v. Lyford, 624 
 
 Swartwout v. Burr, _ 175, 201, 20{ 
 
 Swartz V. Swartz, . ' 124 
 
 Swasey v. Brooks, 573, 577, 600, 61( 
 
 V. Little, 65J 
 
 Swayne v. Lyon, 337, 38( 
 
 Sween v. Steele, 358, 36] 
 
 Sweet V. Brown, 60J 
 
 V. Colgate, i 
 
 V. Jacocks, 701, 70i 
 
 V. Lee, 144 
 
 V. Meredith, 255, 353, 35: 
 
 )'. Southcote, 75i 
 
 Sweeting v. Pearce, 4i 
 
 Sweetland v. Smith, ' 259, 63] 
 
 Sweitzer v. Hummell, 24] 
 
 Swetland v. Swetland, n< 
 
 Swett V. Patrick, 61! 
 
 Swift V. Davis, 703, 70^ 
 
 Swinburne v. Swinburne, 70! 
 
 Swinford, in re, 25' 
 
 V. Rogers, 71' 
 
 Swisher v. Swisher, 64J 
 
 Switzer v. Skiles, 11, 117 n 
 
 Sykes v. Bond, 75i 
 
 I'. Giles, 48, 41 
 
 V. Sheard, 6; 
 
 Symms v. Smith, Lady, 56 
 
 Symonds v. Ball, 141 
 
 Symondson v. Tweed, 149, 154, 15 
 
 Symons v. James, 33 
 
 Syron v. Blakeman, 12 
 
IflDEX TO CASES CITED OB INTEODUCED. 
 
 clvii 
 
 Tabb V. Archer, 1 72 
 
 Taber v. Perrott, 53 
 
 Taft V. Harrison, 76 n. 
 
 V. Kessel, 573 
 
 Taggart v. Stanbery, 645 
 
 Tail V. Korthwick, Lord, 118 
 
 Talbot V. Bedford, 611 
 
 V. Bowen, 145 
 
 I'. Stanifortb, 277, 279, 285, 286 
 
 V. Warfield, 642 
 
 Talbott V. Minnett, 110 
 
 Taliaferro v. Taliaferro, 701, 703 
 
 Talliaferro v. Kin^, 640, 641 
 
 Tallmadge v. WaUis, 549 
 
 Tallman v. Franklin, 42, 139 
 
 Tanner v. Christian, 57 
 
 V. Florence, 775 
 
 t>. Hicks, 6 71 
 
 V. Livingston, 611 
 
 V. Radford, 102 
 
 ('. Smart, 137 
 
 V. Smith, 22, 252, 252 n. 
 
 Tapley v. Butterfield, 57 
 
 V. Labeaume, 610, 611 
 
 Taplin v. Florence, 124 
 
 Tapp V. Lee, 4, 744 n. 
 
 Tappenden v. Randall, 237 
 
 Tarback v. Marbury, 721 
 
 Tarbell v. Bowman, 324 
 
 Tardiff v. Scrughan, 675, 676, 676 n. 
 
 Tarleton v. Liddell, 716, 719 
 
 Tarte v. Darby, 1 78 
 
 Tarwater v. Davis, 259, 264 
 
 Tasker v. Small (3 My. & Cra.), 232, 
 
 291 
 
 V. Small (6 Sim.), 232 
 
 Tassell v. Smith, 196 
 
 Tate V. Liggat, 714 
 
 V. Tate, 253, 713 
 
 Tatem v. Chaplin, 577, 585 
 
 Tawney v. Crowther, 137 
 
 V. Lynn & Ely Railway Co. 78 
 
 Tayler v. Great Ind. Pen. Ry. Co. 377 
 
 V. Waters, . 123 
 
 Tayloe v. Adams, 675 
 
 V. Benham, 701 
 
 V. Merchants' Fire Ins. Co. 133 
 
 Taylor's Settlement, in re, 85 
 
 Taylor, ex parte, 209 
 
 in re, 88 
 
 V. Alston, 702 
 
 V. Ashton, 5 
 
 V. Baker, 762, 766 
 
 V. Baldwin, 161 
 
 V. Beech, 151 
 
 Taylor v. Benham, 
 
 484 
 
 V. Blacklow, 
 
 6, 786 
 
 V. Brown, 
 
 269, 651 
 
 V. BuUen, 
 
 333 
 
 V. Colegate, 
 
 104 
 
 V. Cox, 
 
 481 
 
 V. Debar, 
 
 612 
 
 V. Fleet, 243, 244, 330, 335 
 V. Ford, 671 
 V. Gallup, 239 
 V. Gilbertson, 26, 596 
 V. Green, 56 
 u. Hawkins, 669 
 V. Heriot, 713 
 V. Hunter, 671, 675, 681 
 V. James, 721 
 V. Johnston, , 240 
 B.Kelly, 175 
 V. Longworth, 213, 241, 260, 
 268 
 V. Luther, 151, 174 
 V. McKinney, 671 
 I'. Martindale, 16, 337, 382, 383 
 V. Midland R. Co. 549, 550 
 V. Nussbaum, 48 
 V. Owen, 581, 596 
 V. Perry, 241 
 V. Porter, 747 
 V. Portington, 134, 214 
 t'. Radd, 171, 173 
 V. Rowland, 358 
 V. Salmon, 48 
 V. Shelton, 44 
 V. Shum, 38 
 V. Steamboat Robert Camp- 
 bell, 130 
 V. Stibbert, 749, 750, 751, 763, 
 775 
 t'. Stile, 714 
 V. Stray, 210 
 V. Tabrum, 62, 216 
 V. Taylor, 703, 704 
 V. Wheeler, 744 
 Taymon v. Mitchell, 2 n., 252 
 Teaffe v. Simmons, 50, 51, 53, 639 
 Teakle v. Bailey, 68.7 
 Teall V. Auty, 125, 126 
 Teasdale v. Atkinson, 714, 719 
 V. Teasdale, 744 
 Tebbetts v. Tilton, 701 
 Tebbott V. Vowles, 186 
 Teed v. Carruthers, 676 
 Teede v. Johnson, 167,-401 
 Tempest's case, 581 
 Temple v. Brown, 36 7 n., 406 
 V. Palmer, 260 
 Templer v. M'Lachlan, 547 
 
clviii 
 
 INDEX TO CASES CITED OR INTRODUCED. 
 
 Templer v. Sweet, 
 
 121 
 
 Thomas 
 
 V. Perry, 
 
 32. 
 
 Tenant v. Goldwin, 
 
 58 
 
 
 V. Poole, 
 
 2i 
 
 Ten Broeck v. Livingston, 
 
 212 
 
 
 I). Powell, . 
 
 649, 55: 
 
 Tendrintj v. London, 
 
 217 
 
 
 i). Shattuck, 
 
 57' 
 
 Ten Eyck v. Holmes, 
 
 646 
 
 
 v. Thomas, 
 
 16! 
 
 V. Simpson, 
 
 175 
 
 
 V. Thomas (Bea.), 
 
 65: 
 
 Tennant v. Trenchard, 
 
 99 
 
 
 V. Townscnd, 
 
 61, 64i 
 
 Tennent v. Robinson, 
 
 241 
 
 
 V. Van KapfF, 
 
 57; 
 
 Terrible, in re, 
 
 463 
 
 
 V. Walker, 
 
 70] 
 
 Terrie's case, 
 
 619 
 
 
 V. White, 
 
 484 
 
 Terry v. George, 
 
 240 
 
 Thomas 
 
 s Appeal, 
 
 196 
 
 1'. Williams, 
 
 363 
 
 Thomason c. Andersons, 
 
 464 n 
 
 Terson v. Hawkins, 
 
 115 
 
 Thomaslon Bank v. Stimpson, 
 
 17-^ 
 
 Tetley, ex parte, 
 
 90 
 
 Thomlinson v. Dixon, 
 
 23'c 
 
 Tevis V. Richardson, 213, 220, 343 
 
 Tew V. Harris, 288 
 
 !i. Jones, 180 
 
 Tewart v. Lawson, 637 
 Tewkesbury, Bailiffs, &c. of, v. 
 
 Bricknell, 170 
 
 Thaeher c. Phinney, 495, 714 
 
 Tbarin v. Ficklin, 241, 573 
 
 Thayer v. Hacon, 743 
 
 ' V. Clenience, 237, 577, 611 
 
 V. Kramer, 761 
 
 r. J\lnnn, 486 
 
 V. Niles, 126 
 
 ti. Payne, 24 n., 58 
 
 r. Ruck, 127 
 
 V. Smith, 722 n. 
 
 Thellupson i\ Woodford, 185 
 
 Thibanlt c. Gibson, 724 
 
 Thickncssu i). Lancas. Canal Co. 77 n. 
 
 V. Vernon, 697 
 
 Thirlle r. Vanghan, 187 
 
 Thistluwood, <-x parte, 275, 277, 279 
 
 Thomas, ex jxirte, 542 
 
 V. Beebe, 325 
 
 L. Blackman, 132 
 
 ..Brinsfleld, 484 
 
 V. Cook, ^ 123 
 
 i: Davenport, 627 
 
 r. Diivis, 172,174 
 
 t: De Baum, 103 
 
 V Decring, 70, 141, 216, 308, 
 
 749 
 
 r. Dickinson, 126,361 
 
 , . Fredericks, 288 
 
 c. Fred. So. School, 646 
 
 I . Gaiiimel, 458 
 
 r. Goodwin, 71D 
 
 V. Grand Gulf Bank, 730 
 
 ,. Gwyi.ne, 202 
 
 ,. Il;itcli, 481 
 
 V. Lanier, 241 
 
 V l.ioyd, 35 7 
 v. McCormick, 160, 174 
 
 V. Smith, 669, 745 
 
 Thompson, in re, 464 
 
 V. Blackstone, 216 
 
 V. Blair, 77,i 
 
 V. Branch, 703 
 
 V. Christian, 326, 337, 548 
 V. Davies, 11 
 
 V. Dawson, 675 
 
 V. Dimond, 102 
 
 V. Finch, 63 
 
 V. Gailland, , 481 
 
 V. Gould, 151, 152, 1,53, 
 236, 247, 291 
 V. Guthrie, 358 
 
 V. Jackson, 275 
 
 V. Kelly, 39, 40, 41 n., 50, 
 
 159 
 V. Ketchum, 165 
 
 V. Lapworth, 27 
 
 v. McGaw, 458 
 
 V. Mason, 287, 747 
 
 V. Morgan, 559 
 
 v\ Murray, 456 
 
 V. O'Sullivan, 686 
 
 V. Pyland, 671 
 
 V. Sanborn, 743 
 
 V. Shattuck, 577 
 
 V. Simpson, 484, 485, 729, 
 743, 745 
 V. Spiers, 379 
 
 V. Teuton, 443 n. 
 
 u. Thompson, 195,457, 705, 
 
 721 
 
 V. Tod, 149 
 
 V. Tomkins, 378 
 
 V. Towne, 177 
 
 V. Webster, 706 n., 714 
 
 V. Wheatley, 687 
 
 V. Wbitmore, 172 
 
 Thompson's Appeal, 708 
 
 Settled Est. in re, 110, 
 
 498, 499 
 
 Trusts, in re, ■ 685 
 
INDEX TO CASES CITED OB INTRODUCED. 
 
 clix 
 
 Thomson v. Christie, 
 V. Miles, 
 t;. Wilson, 
 Thorn v. Newman, 
 V. Thorn, 
 ». Wilson, 
 Thornbury v. Bevill, 
 Thorndike v. Hunt, 
 Thornett r. Haines, 
 Thornhill v. Glover, 
 
 V. Thornhill, 
 Thornton u. Court, 
 V. Dixon, 
 V. Henry, 
 
 39 
 
 259, 298, 439 
 
 123 
 
 617 
 
 127 
 
 671,680 
 
 133, 144 
 
 738 
 
 9, 10 
 
 110 
 
 118 
 
 233, 611 
 
 699 n. 
 
 149, 151 
 
 V. Knox, 671, 675, 680, 681, 
 
 681 n. 
 
 Thoroton, ex parte, 90 
 
 Thorp V. Freer, 643, 649 
 
 V. McCulIum, 687, 688 
 
 Thorpe v. Plowden, 490 
 
 Thrale v. Cornwall, 583 
 
 Threlkeld ». Fitzhugh, 611 
 
 Thring ij. Edgar, 790 
 
 Thruston v. Anstey, 485 
 
 Thruxton v. Att. Gen. 616 
 
 Thursby i'. Plant, 583 
 
 Thurston v. Franklin College, 241 
 
 V. Hancock, 59 
 
 Th-waitea, ex parte, 687 
 
 Tibbets v. Phillips, 699 n. 
 
 Tibbs !). Barker, 151 
 
 Tibeau D. Tibeau, 174 
 
 Tiee v. Annin, 518 
 
 Tickle V. Brown, 492 
 
 Tickner i>. Tickner, 184 
 
 Tiernan v. Bean, 671, 683 
 
 V. Rascaniere, 484 
 
 u. Koland, 257 
 
 V. Thurman, 676, 680, 681 
 
 V. Wilson, 99, 100 
 
 Tierney v. Wood, 700 
 
 Tiffin V. Tiffin, 616, 625 
 
 Tildlesley v. Clavkson, 2 n. 
 
 r.Lodge, 753 
 
 Tillett V. Char. Cross Ry. Co. 140, 288 
 
 V. Chester Bridge Co. 211 
 
 Tillev V. Register, 714 
 
 ' u. Thomas, 257,258,260,26), 
 
 ' 266, 268, 271 
 
 Tillman v. Cowand, 761 
 
 Tillotson V. Grapes, 549 
 
 Tilsley, ex parte, 1 1 9 
 
 Tilton V. Hunter, 761 
 
 V. Tilton, 151, 155, 159, 160, 171 
 
 Timber! ake w. Parish, 159 
 
 Tims V. Shannon, 549 
 
 Timson u. Ramsbottom, 379 
 
 Tindal v. Cobham, 
 'I'indall v. Conover, 
 Tingley v. Cutter, 
 Tinnen v. McCane, 
 Tinney v. Ashley, 
 
 0. Tinney, 
 Tipping V. Gartside, 
 
 V. Power, 
 Tison V. Smith, 
 Titcomb o. Morrill, 
 Titley v. Davis, 
 
 231 
 573 
 158 
 484 
 239, 241, 573 
 158 
 106 
 108 
 257 
 702 
 196 
 
 Tiverton Market Act, in re, 90 
 
 Tobey K. Bristol Co. 211,288 
 
 V. Chipman, 566, 569 
 
 Toby V. McAllister, 671, 675 
 
 Todd V. Dowd, 102 
 
 V. Flight, 58 
 
 V. Gee, 233, 322, 633, 648 
 
 V. Hartley, 714 
 
 f. Hoggart, 238, 363 
 
 u. Rivers, 174 
 
 V. Studliolme, 103, 659, 659 n., 768 
 
 V. Taft, 210 
 
 Toe V. Toe, 155 
 
 Toft V. Stephenson, 175, 482, 487, 4^8, 
 
 639, 679, 684 
 
 Toft's Estate, 88 
 
 Tolar V. Tolar, 721 
 
 Tollettu. Tollett, 171 n. 
 
 Tomkins, ex/iar/e, 64,120 
 
 V. White, 26, 319 
 
 Tomlin r. M'CJiord, 386 
 
 Tonilinson v. Savage, ' 9, 10 
 
 V. Ward, 646 
 
 Tommey v. W^hite, 111 
 
 Tompkins v. Elliot, 258 
 
 U.Mitchell, 671,675,680, 
 
 683, 698 
 
 I'. Powell, 738 
 
 Tompsett u. Wickens, 119 
 
 Tomson v. Judge, 690 
 
 Toug V. Matthews, 611 
 
 Tongue v. Morton, ' 758 
 
 Toole V. Medlicott, 151 
 
 Tooley v. Kane, lOl 
 
 Toomer v. Dawson, 138 
 
 V. Lucas, 159 
 
 Topham v. Constantine, 671 
 
 Toppin V. Lomes, 127 
 
 Tori-ey v. Bank of Orleans, 687, 688, 
 
 689 
 
 V. Buck, 214 
 
 Tottenham y. B) rne, 476 n. 
 
 V. Townsend, 211 
 
 Totton's case, 465 
 
 Toulmin v. Buchanan, 719 
 
 V. Steere, 747, 756, 757 
 
clx 
 
 INDEX TO CASES CITED OR INTRODUCED. 
 
 Tourle v. Eand, 
 
 444 
 
 Tourville v. Naish, 
 
 378, 552, 753 
 
 Towgood, ex parte, 
 
 82 
 
 Towle V. Leavitt, 
 
 9, 10 
 
 Town, ex parte, 
 
 688 
 
 V. Needham, 
 
 151 
 
 Townend v. Toker, 
 
 158, 713, 720 
 
 Townley v. Bedwell, 
 
 187, 633 
 
 Townsend v. Champernown, 405 n., 
 425, 644, 647, 648, 650, 
 808 
 V. Cowing, 57 
 
 V. Houston, 152 
 
 V. Hubbard, 57 
 
 V. M'Donald, 492 
 
 V. Morris, 577 
 
 V. Warren, 111, 112 
 
 V. Weld, 573 
 
 V. Westacott, 706 n. 
 
 Townsend, Lord, v. Granger, 27 
 
 Townshend v. Askew, 521 
 
 !>. Stangrooni, 160, 171, 324 
 V. Townshend, 231, 633 
 Townshend, Marquis of, v. Nor- 
 wich, Bishop of, 141, 144 
 Townsley v. Chapin, 206 
 Townson v. Tickell,, 664 
 Traeey v. Lawrence, 67, 405 n. 
 Tracy v. Atherton, 492 
 Traill v. Baring, 246 
 Trash v. White, 486 
 Trask V. Vinson, 355 n., 361, 549 
 Traver v. Halsted, 573 
 Travis v. Bishop, 775 
 V. Waters, 646 
 Trecothick u. Austin, 484 
 Trefusis u. Clinton, 119,632 
 Tremain u. Liming, 573 
 Tremper v. Burton, 703, 704 
 Trench v. Harrison, 701, 709, 710 
 Trenchard v. Hoskins, 608 
 Trenery, Ann, ex parte, 473 
 Trent v. Hanning, 386 
 V. Hunt, 181 
 Tress v. Savage, 496 
 Tressilian v. Caniffe, 746 
 Trevanian v. Mosse, 788 
 Trevelyan v. Charter, , 253, 694 
 U.White, ' 694, 759 
 Trevor v. Wood, 133 
 Tribble v. Oldham, 681 n. 
 Tribourg v. Pomfret, Lord, 196 
 Trimble v. Boothby, 758, 759 
 Trimmer v. Bayne, 679, 679 n., 680 
 Trimuel's, Commissioner, case, 183 
 Trinity House, in re, 88 
 Tripe v. Marcy, 761 
 
 Triplett V. Gill, 577,59 
 
 Tripp u. Bishop, 361,56 
 
 V. Cook, 115,117, 119, 12 
 
 V. Tripp, 27 
 
 Trollope v. lloutledge, 616 i 
 
 Trotman v. Flesher, 134, 156, 30 
 
 Trotter u. Irwin, 671, 67 
 
 V. Watson, ' 71 
 
 Troup V. Haight, 76 
 
 V. Smith, 25^ 
 
 V. Wood, l: 
 
 Trowbridge v. Wetherbee, 126, 12: 
 
 Trower v. Newcombe, 3, 28, 331 
 
 Trucks V. Lindsey, 174 
 
 Truebody o. Jacobson, 671, 67c 
 
 Truesdale v. Ford, 76S 
 
 Truesdell v. Calloway, 749 
 
 Trull u. Bigelow, 720, 75S 
 
 V. Eastman, 276, 556, 577 
 
 (/•. Skinner, 167 
 
 Trulock 0. Peeples, 753 
 
 Truscott V. Mer. Tailors' Co. 491 
 
 Trust V. Delaplaine, 10, 11 
 
 Trustees v. Wright, 671 
 
 Trye v. Aldboro', Lord, 517 
 
 V. Gloucester, Corporation of, 719 
 
 Tubbs V. Broadwood, 709 
 
 Tuck V. Silver, 55, 233 
 
 Tucker v. Barrow, 704, 706 
 
 V. Clarke, 235 
 
 V. Gordon, 550 
 
 V. Henzill, 756 
 
 V. Madden, 160 
 
 V. Tucker, 484 
 
 V. Wood, 7 
 
 Tuer V. Turner, 473 
 
 Tufts u. Adams, 577,610,611 
 
 V. Charlestown, 25 
 
 Tulk V. Moxhay, 596, 804 
 
 TuU V. Parlett, 158 
 
 Tunc V. Keetor, 549 
 
 Tunno v. Flood, 315, 316 
 
 Tunstall V. Trappes, 519, 521, 728, 756, 
 
 . 761 
 
 Tupper V. Foulkes, ■ 123 
 
 Tupple i>. Viers, 671 
 
 TurnbuU v. Judsden, 4 
 
 Turner, ex parte, 658, 660 
 
 in re, ' 476, 477 
 
 V. Back, 741 
 
 V. Beaurain, 312, 362 
 
 w.Clav, 273 
 
 V. Coffin, 743 
 
 V. Crebill, 761 n. 
 
 V. Harvey, 5, 62, 64, 216, 243, 
 
 254, 274, 299 
 
 i.'. Marriott, 68 
 
INDEX TO CASES CITED OE INTEODUCED. 
 
 clxi 
 
 V. Parrj', 
 
 241 
 
 V. Pettigrew, 
 
 708 
 
 V. Richardson, 
 
 64 
 
 V. Tresevant, 
 
 715 
 
 V. Waldo, 
 
 748 
 
 V. Wight, 
 -1 ^:_„j. TIT .. 
 
 229 
 
 Turpin v. Chambers, 20, 23, 42 
 
 Turquand v. Vanderplank, 724 
 
 Turrill V. Murray, . 484 
 
 Turton V. Benson, 381 
 
 Tuthill V. Babcock, 3, 243 
 
 V. Rogers, 390, 405 n., 477 
 
 Tuttle V. Jackson, 765, 758, 762 
 
 V. Robinson, 33 
 
 Twambly v. Henley, 57-7, 600 
 
 Tweddell v. Tweddell, 195, 276 
 
 Tweed I'. Mills, 17,337 
 
 Tweedale v. Tweedale, 196 
 
 Twigg V. Fifield, 104, 632 
 
 Twining v. Morris, 9, 11, 215, 275, 303 
 
 Twisleton v. Griffith, 276, 286 
 
 Twycross v. Moore, 757 
 
 Twyford v. Warcup, 324 
 
 Twynam v. Pickard, 598 
 
 Twyne's case, 706 n. 
 
 Tyford v. Thurston, 701 
 
 Tylee v. Webb, 549, 667, 757, 780 
 
 Tyler i'. Beversham, 326 
 
 V. Black, 5 
 
 V. Carlton, 645 
 
 V. Drayton, 445 
 
 V. Freeman, 50 
 
 V. Hammond, 761 
 
 V. Thomas, 760 
 
 V. Webb, 233 
 
 V. Young, 400 
 
 Tyndale v. Warre, 118 
 
 Tynte v. BuUer, 225 
 
 Tyrconnel, Earl of, v. Ancaster, 
 
 Duke of, 28 
 
 Tyree v. Williams, 264 
 
 Tyrer v. Artingstall or Bailey, 271 
 
 U.King, 358 
 
 Tyson V. Hardesty; 324 
 
 V. Mickle, 60 
 
 V. Passmore, 355 n. 
 
 V. Smith, 264 
 
 U. 
 
 Udall V. Kenney, 275 
 
 Udell V. Atherton, 250 
 
 Underbill v. Allen, 152 
 
 V. Horwood, 275 
 
 V. Van Cortlapdt, 287 
 
 VOL. I. I 
 
 Underwood v. Bedford and Camb. 
 
 Ry. Co. 73 
 
 V. Courtown, Lord, 253, 752 
 
 V. Hithcox, 273 
 
 V. 0|den, 761 
 
 Union Bank v. Baker, 701 
 
 V. Emerson 33 
 
 Union Bank, &c. v. Edwards, 728 
 
 Unitarian Society v. Woodbury, 700, 
 
 701 
 
 United States u. Daniel, 742 
 
 V. Hooe, 728 
 
 V. Jarvis, 47 
 
 V. Sturges, 378' 
 
 Unity Joint Stock, &c. Assoc. 
 
 ex parte, 209 
 
 Unity Joint Stock, &c. Assoc, v. 
 
 King, 743 
 
 Unthank v. Gabbett, 748 
 
 Uppington v. Tarrant, 488 
 
 u|)shaw V. Hargraye, 671, 680 
 
 Upton V. Bassett, 713 
 
 V. Ferrers, Lord, 115, 118 
 
 V. Townend, 496 
 
 V. Vail, 4 
 
 Urch V. Walker, 664 
 
 Urmston v. Pate, 550 
 
 Uxbridge, Lord, v. Staniland, 589 
 
 Uzzell V. Mack, 671 
 
 V. 
 
 Vail V. Nelson, 252 
 
 Vale V. Davenport, 1 00 
 
 Valentine v. Dickenson, 273 
 
 V. Piper, 48, 563, 727 
 
 V. Wetherell, 460 
 
 Valle V. Keese, 708 
 
 Van«. Corpe, 166, 214 
 
 Van Allen v. Humphrey, 206 
 
 Van Alstine v. Wimple, 127 
 
 Van Buren v. Olmstead, 174 
 
 Van Buskirk v. Day, 56 
 
 Vanbussum v. Maloney, 98, 99 
 
 Vance v. M'Nairy, 727 
 
 Vancourt v. Moore, 577 
 
 Vancouver v. Bliss, 7, 312, 321, 353, 
 
 646, 647 
 Vandeleur v. Blagrave, 667 
 
 Vanderheuvel v. Storrs, 1 79 
 
 Vanderkarr v. Vanderkarr, 496, 600, 
 
 608 
 Vanderkemp 17. Shelton, 727 
 
 Vandever's Appeal, 664 
 
 Vandever v. Freeman, 702 
 
 Vandoren v. Everett, 686 
 
clxi 
 
 Xll 
 
 INDEX TO CASES CITED OR INTEODUCED. 
 
 Vandoren v. Robinson, 
 
 777 
 
 Vernon v. Stephens, 
 
 
 5i 
 
 V. Todd, 
 
 671, 675 
 
 Verplank v. Arden, 
 
 
 71i 
 
 Vanduyne v. Vanduyne, 
 
 98, 99 
 
 V. Caines, 
 
 268 
 
 70: 
 
 Van Duyne v. Vreeland, 
 
 149 
 
 V. Sterry, 
 
 714, 
 
 71i 
 
 Vane v. Barnard, Lord, 548, 
 
 549, 610, 
 
 Verry v. Richardson, 
 
 
 51f 
 
 
 756 
 
 Vesey v. Elwood, 
 
 101 
 
 lOi 
 
 Van Epps v. Van Epps, 687, 
 
 688, 689 
 
 Vicary v. Moore, 
 
 
 151 
 
 Van Eps v. Schenectady, 42, 
 
 319, 320, 
 
 Vick V. Edwards, 
 
 405 n 
 
 
 673 
 
 Vickers v. Cowell, 
 
 
 69! 
 
 Van Ernan v. Stanchfield, 
 
 161 
 
 V. Hand, 
 
 628, 
 
 63; 
 
 Van Horn v. Fonda, 
 
 687, 747 
 
 V. Scott, 
 
 
 7( 
 
 Van Home v. Grain, 
 
 577, 598 
 
 V. Vickers, 
 
 140 
 
 28i 
 
 Vanmeter v. McFaddin, 
 
 715 
 
 Vidal V. Girard, 
 
 
 68i 
 
 Vannerson v. Cord, 
 
 102 
 
 Viele V. Troy & Boston Raiboad, 
 
 27i 
 
 Van Ness v. Hyatt, 
 
 518 
 
 Vigers v. Pike, 
 
 
 244 
 
 Van Rensselaer v. Bradley, 
 
 577 
 
 Vignolles v. Bowen, 7, 30, 298 
 
 764 
 
 V. Clark, 
 
 727, 728 
 
 Villard v. Robert, 
 
 730, 
 
 76] 
 
 u. Kearney, 
 
 464 n.. 
 
 Villiers v. Villiers, 
 
 
 61f 
 
 549 
 
 556, 577 
 
 Vincent v. Going, 100, 
 
 101, 105, 
 
 48f 
 
 Vansagnew v. Stewart, 
 
 111 
 
 V. Thwaites, 
 
 
 IK 
 
 Vansant v. Davies, 
 
 714, 761 
 
 V. Willington, 
 
 
 48; 
 
 Vansittart v. Barber, 
 
 445 n. 
 
 Viney v. Chaplin, 
 
 563, 
 
 66; 
 
 V. Collier, 
 
 101 
 
 Vining v. Leeman, 
 
 
 64i 
 
 V. James, 
 
 119 
 
 Vint V. Padgett, 
 
 
 19; 
 
 Van Slyck v. Kimball, 
 
 600, 610 
 
 Volant V. Soyer, 
 
 
 78; 
 
 Van Vronker v. Eastman, 
 
 457 
 
 VoU V. Smith, 
 
 
 15i 
 
 Van Wyck v. Alliger, 
 
 175 
 
 Von Hemert v. Porter, 
 
 641, 
 
 64; 
 
 V. Seward, 
 
 714 
 
 Voorhees v. De Meyer, 
 
 213, 218, 
 
 260 
 
 Varick v. Briggs, 
 
 738, 753 
 
 306, 
 
 316, 324, 
 
 38( 
 
 V. Edwards, 
 
 276 
 
 Voorhis V. Freeman, 
 
 
 31 
 
 Varnum v. Abbot, 
 
 5o6 
 
 Vorebeck v. Roe, 
 
 
 56£ 
 
 V. Meserve, 
 
 66 
 
 Vorley v. Cooke, 
 
 
 19; 
 
 Vassar v. Camp, 
 
 133 
 
 Vouillon V. States, 
 
 
 16( 
 
 Vasser v. Vasser, 
 
 174 
 
 Vyvyan v. Arthur, 
 
 583, 
 
 58S 
 
 Vattier v. Hinde, 737 
 
 753, 787 
 
 
 
 
 Vaughan u. Hancock, 
 
 127 
 
 
 
 
 V. Magill, 
 
 7, 764 
 
 w. 
 
 
 
 V. O'Brien, 
 
 569 
 
 
 
 
 V. Tracey, 
 
 762 
 
 Wack V. Sorber, 
 
 
 151 
 
 V. Vanderstigen, 
 
 743 
 
 Waddilove v. Barnett, 
 
 
 181 
 
 Vaughton v. Noble, 
 
 711 
 
 Waddington v. Banks, 
 
 175 
 
 67! 
 
 Vaupell V. Woodward, 
 
 127, 149 
 
 V. Bristow, 
 
 
 121 
 
 Vauxhall Bridge Co. v. Spencer, 
 
 Wade V. Comstock, 
 
 
 61: 
 
 Earl, 
 
 75 
 
 V. Dowling, 
 
 
 281 
 
 Vawser v. Jeffrey, 
 
 186 
 
 V. Greenwood, 
 
 679 
 
 68< 
 
 Veal V. NichoUs, 
 
 571 
 
 V. Harper, 
 
 688 
 
 68! 
 
 Veazie v. Williams, 9, 10, 63 
 
 , 120, 250, 
 
 V. Johnson, 
 
 
 48: 
 
 
 253, 688 
 
 V. Paget, 
 
 613 
 
 6r 
 
 Veeder v. Fonda, 
 
 97 
 
 V. Pettibone, 
 
 253 
 
 68' 
 
 Venable v. Thompson, 
 
 161 
 
 Wadham v. Rigg, 
 
 98 n. 
 
 701 
 
 Vernander v. Codd, 
 
 140 
 
 Wadleigh v. Glines, 
 
 
 65i 
 
 Verner v. Winstanley, 
 
 199, 275 
 
 Wadsworth v. Havens, 
 
 
 71. 
 
 Verney, Lord, v. Carding, 
 
 749 
 
 V. Loranger, 
 
 
 17. 
 
 Vernon, ex parte, 
 
 701 
 
 V. Warden, 
 
 
 17, 
 
 ■V. Henry, 
 
 1G9 
 
 V. Williams, 
 
 
 71 
 
 V. Keys, 
 
 5 
 
 Waggener v. Waggener, 
 
 
 38 
 
 V. Smith, 
 
 689 
 
 Waggoner v. Jermaine, 
 
 
 5 
 
INDEX TO CASES CITED OR INTRODUCED. 
 
 clxiii 
 
 Wagner ti. Baird, 253 
 
 Wagstaff" V. Read, 789 
 
 Wain B. Warlters, 120 
 
 Wainewright, in re, 467 
 
 Wainscott v. Silvers, 291 
 
 Wainwrifrht v. Read, 159, 322, 324 
 
 Wait V. Day, 700 
 
 Wake 1'. Wake, 203 
 
 Wakefield v. Brown, 584 n. 
 
 V. Buccleuch, Duke of, 59 
 
 V. Gibbon, 276, 706 n., 719 
 
 V. Lithgow, 49 
 
 V. Newton, 434 
 
 V. Stedman, 161 
 
 Wakeman v. Bailey, 785 
 
 V. Rutland, Duchess of, 106, 
 
 439, 549, 574 
 
 Walcott V. Condon, 748 
 
 V. Lynch, 182, 518 
 
 Waldron v Forester, 631, 643 
 
 V. M'Carty, 600, 610 
 
 V. Sloper, 772 
 
 Wales V. Newbould, 703 
 
 Walford v. Adie, 253 
 
 Walker's case, 376, 582 
 
 Walker, ex parte, 85 
 
 in re (8 Jur. N. S.), 463 
 
 in re (15 Jur.), 88 
 
 V. Aston, 203 
 
 V. Barnes, 199, 382 
 
 V. Bartlett, 38, 376 
 
 V. Beauchamp, Lady, 418 
 
 V. Bentley, 405 n. 
 
 V. Brungard, 703 
 
 V. Burngood, 701 
 
 V. Burrows, 705 n. 
 
 V. Constable, 147, 148, 237 
 
 J). .Cox, 175 
 
 V. Eastern Counties Ey. 
 
 Co. 79, 82, 224, 287 
 
 r. Emerson, 253 
 
 V. Flamstead, 658, 758 
 
 V. Griswold, 457 
 
 V. Hill, 758 
 
 V. Jeffreys, 262 
 
 V. Julinson, 611 
 V. London & Blackwall 
 
 Ry. Co. 73 
 
 V. Moore, 358, 360, 482 
 
 V. Prestwiek, 680 
 
 V. Siirgent, 381 
 
 V. Sedgwick, 671, 675 
 
 V. Sherman, 33 
 
 V. Sbore, 62 
 
 V. Siiiallwood, 63, 660, 758 
 
 V. Taylor, 661, 669 
 
 I'. Walker, 160, 484 
 
 Walker v. Walker (2 De G., F. 
 
 & J.) 186 
 
 V. Ware, &c. Railway Co. 255 
 
 V. Wililman, 785 
 
 V. Williams, 683 
 
 V. Worcester, 25 
 
 Wall V. Bridit, 187 
 
 V. Cockerell, 252, 253, 690 
 
 V. Stubbs, 274 
 
 Wallace v. Bowens, 706 
 
 V. Brown, 151, 155 
 
 V. Cooke, 563 
 
 V. Craps, 755 
 
 V. Donegal, Lord, 728, 741, 
 
 746, 761 
 
 V. Duffield, 708 
 
 V. Fletcher, 492, 493 
 
 V. Marshall, 701 
 
 V. Wallace, 276 
 
 Waller v. Hendon, 145 
 
 V. Horsfall, 239 
 
 Walling V. Aiken, 728 
 
 V. Kinnard, 241 
 
 Wallinger v. Hilbcrt, 321, 352 
 
 Wallingfbrd lu Allen, 686 
 
 t). .Hearl, 480 
 
 Wallis V. Bastard, 179, 347, 629, 649 
 
 V. Harrison, 124 
 
 V. Loubat, 690 
 
 V. Sarel, 105, 631, 635 
 
 V. Woodyear, 343 
 
 Wallwyn v. Lea, 444 
 
 V. Lee, 741, 787, 788, 794, 
 
 795, 797 
 
 Walmsley v. Jowett, 4U5 n. 
 
 V. Milne, 33 
 
 Walond v. Walond, 115 
 
 Walpole, Lord, v. Cholmondeley, 
 
 Lord, 169 
 
 Walsb, in re, 406 
 
 t'. Whitcomb, 563 
 
 Walsingham, Lord, v. Goodricke, 785, 
 
 786 
 
 Walter v. Crake, 714 
 
 V. Locke, 122, 149 
 
 V. Maunde, 7, 383, 384 
 
 Walters v. Morgan, 149, 160, 211 
 
 Waltham's, Lord, case, 397, 398 
 
 Walton V. Stanford, 752 
 
 u. Walton, 462, 463 
 
 Wambaugh v. Gates, 108 
 
 Wamble u. Battle, 671 
 
 VVamburzeo v. Kennedy, 4«4 
 
 Wanhy i'. Sawliridge, 149 
 
 Warburton v. Hill, 379, 380 
 
 V. Loveland, 713, 728 
 
 V. Mattox, 656 
 
clxiv 
 
 INDEX TO CASES CITED OR INTRODUCED. 
 
 Warburton v. Parke, 
 
 493 
 
 V. Sandys, 
 
 217, 666 
 
 Ward V. Arredondo, 
 
 201 
 
 V. Cooke, 
 
 116, 118 
 
 V. Davidson, 
 
 646 
 
 V. Garnons, 
 
 437 
 
 V. Hartpole, 
 
 693 
 
 V. Hollins, 
 
 108, 714 
 
 V. Ledbetter, 
 
 160 
 
 V. Moore, 
 
 184 
 
 V. Morrison, 
 
 378 
 
 ^•. Neal, 
 
 491 
 
 V. Smith, 688, 694, 696 
 
 V. Trathem, 107 
 
 V. Ward, 381 
 
 V. Ward (Exch.), 492 
 
 V. Wiman, 5 
 
 Ward, Lord, v. Oxford, &c. Ky. Co. 49, 
 
 76, 92 
 
 Ward's Legacy, in re, 64, 105 
 
 Warde, in re, 504 
 
 V. Dixon, 20, 21, 228, 394 
 
 V. Jeffery, 261, 265, 268 
 
 K Warde, 711,786 
 
 Warden v. Adams, 728, 779 
 
 V. Jones, 718 
 
 Wardle v. Carter, 277, 284, 285 
 
 Wardsworth v. Wendell, 749 
 
 Ware v. Bickerton, 611 
 
 II. Egmont, Lord, 735, 755, 773, 
 
 782, 783 
 
 D.Watson, 116,117 
 
 V. Weatbnall, 611 
 
 Waring v. Hoggart, 23, 26 
 
 V. Jackson, 462 
 
 V. Manchester, &c. Ry. Co. 214 
 
 V. Ward, 195 
 
 Wark V. Willard, 556, 745 
 
 Warlow V. Harrison, 9, 11, 12, 42, 43 
 
 Warn v. Bickford, 613 
 
 Warner's ease, 685 
 
 Warner v. Daniels, 2 n., 3, 4 n., 5, 214, 
 
 233, 243, 245, 250, 253, 273, 
 
 335 
 
 u. Hatfield, 241, 573 
 
 V. Mower, 730 
 
 V. Van Alstyne, 671, 680 
 
 V. Willington, 132, 137, 138, 
 
 140 
 
 V. Win slow, 753 
 
 Warnesford v. Thompson, 390 n., 405 n. 
 
 Warnock v. Wightman, 728 
 
 Warren v. Bateman, 382, 383 
 
 V. Childs, 518 
 
 V. Fenn, 671 
 
 V. Howe, 571 
 
 V. Leland, 126 
 
 Warren v. Richardson, 342, 345, 34 
 
 V. Rudall, 445 i 
 
 V. Sweet, 76 
 
 V. Wheeler, 165, 239, 35 
 
 Warrick v. Warrick, 757, 78 
 
 Warwick v, Bruce, 12 
 
 V. Noakes, 4 
 
 Washabaugh v. Entriken, 55 
 
 Washburn v. Bank of Bellows 
 
 Falls, 64 
 
 V. Merrills, 1 7. 
 
 Washington v. Trousdale, 72i 
 
 Watchman v. Crook, 151 
 
 Waterfall v. Penistone, 3: 
 
 Waterhouse v. Wilkinson, 111 
 
 Waterloo Bridge case, 29! 
 
 Waterman v. Meigs, 13J 
 
 Waterpark, Lord, v. Fennell, 1 7( 
 
 Waters v. Groom, 68! 
 
 V. Howard, 155, 210, 2i: 
 
 V. Mattingley, 21< 
 
 V. Randall, 199, 39( 
 
 V. Thorn, 253, 284, 69i 
 
 V. Travis, 260, 306, 3U 
 
 Watertown «. Cowen, 577, 59( 
 
 Watkins v. Cheek, 660, 661 
 
 V. Hatchett, 78f 
 
 u. Hodges, 158, 16£ 
 
 V. Peck, 492, 743, 744 
 
 V. Stockett, 151 
 
 V. Worthington, 37J 
 
 Watkinson v. Root, 641 
 
 Watlington v. Howley, 758, 761 n 
 
 V. Waldron, 3S 
 
 Watrous V. Chajker, 206 
 
 Watson V. Bane, 683 
 
 V. Birch, 481: 
 
 V. Blane, 64S 
 
 V. Charlemont, Lord, 249 
 
 V. Child, 462 
 
 V. Dickens, 720 
 
 V. Dixon, 174 
 
 B. Eales, 376 
 
 V. Le Row, 701, 738 
 
 V. Lyon, 434 
 
 w. M'Lean, 434 
 
 w. Marston, 211,213 
 
 V. Paulson, 4 
 
 V. Reid, 266 
 
 V. Spratley, 127 
 
 V. Upton, 230 
 
 w. Wells, 6 71,680 
 
 Watt V. Evans, 152 
 
 V. Grove, 687 
 
 V. Trapp, 493 
 
 Watts, ex parte, 61 
 
 V. Cole, 462 
 
INDEX TO CASES CITED OR INTEODUCED. 
 
 clxv 
 
 Watts V. Cresswelli 
 
 743 
 
 V. FuUarton, 
 
 184 
 
 V. Kancy, 
 
 G68 
 
 V. Kenney, 
 
 206 
 
 V. Martin, 
 
 118 
 
 V. Porter, 
 
 380,536 n. 
 
 V. Sheppard, 
 
 259 
 
 V. Symes, 
 
 196, 738, 748 
 
 V. Waddle, 315, 337, 886, 573 
 
 Way jj. Cutting, 254 
 
 V. Patty, 676 
 
 V. Tally, 682 
 
 Wayman v. Jones, 63 
 
 V. Toireyson, 569 
 
 Waytt 1>. Allen, 48 
 
 Weakland v. Hoffman, 251 
 
 Wear v. Parish, 324 
 
 Weart i>. Rose, 324 
 
 Weatherby v. St., Giorgio, 660 
 
 Weatherford v. Tate, 263 
 
 Weaver v. Bentley, 236 
 
 V. Carter, 324 
 
 Webb V. Alexander, 600, 610 
 
 V. Austin, 423 
 
 V. Bird, 491 
 
 V. Byng, 462 
 
 V. Direct London & Ports. 
 
 Ry. Co. 76, 79, 210 
 
 V. Haycock, 418 
 
 V. Hughes, 265, 268 
 
 V. Kirby, 36, 176, 397, 402 
 
 405 n., 563 
 
 V. Ledsam, 664 
 
 V. Lugar, 762, 776 
 
 r. Paternoster, 124 
 
 V. Patterson, 199 
 
 b. Rice, 174 
 
 V. Robinson, 682, 683 
 
 i;. Roff, 714 
 
 V. Rotke, 689 
 
 V. Russell, 683, 684, 587, 618 
 
 V. Webb, 364, 446 n. 
 
 Webber v. Jones, 107 
 
 Weber v. Weiting, 116 
 
 Wtebster, in re, 88 
 
 V. Atkinson, 169 
 
 V. Blount, 169 
 
 V. Ela, 134 
 
 w. Harris, 171 
 
 V. Hill, 101 
 
 V. Hoban, 39 
 
 V. Lamed, 44 
 
 V. Maddox, 762 
 
 V. South Eastern Ry. Co. 87 
 
 V. Van Steenbergh, 753 
 
 V. Webster, 161 
 
 V. Wise, 378 
 
 Weddall v. Nixon, 440, 636, 649 
 
 Weddefburn v. Wedderburn, 484 
 
 Wedderburne v. Carr, 145 
 
 Wedgwood v. Adams, / 213 
 
 Wedmore v. Bristol, Mayor of, 234 
 
 Weed V. Terry, 206 
 
 Weeding v. Weeding, 187 
 
 Weeding's Est. in re, 204 
 
 Weekes v. Gallard, 289 
 
 Weeks v. Hunt, 381 
 
 Weems v. Brewer, 106, 299 
 
 Weigley v. Weir, 646 
 
 Weir V. Chamley, 107, 394, 405 n. 
 
 Weiser v. Weiser, 608 
 
 Welsiger v. Chisholm, 714 
 
 Weiting v. Nissley, 611 
 
 Welch V. Andrews, 181 
 
 V. Lawson, 153, 358 
 
 V. Matthews, 241 
 
 V. Parran, 683 
 
 V. Priest, 197, 727 
 
 Welcome v. Upton, 493 
 
 Weld u. Nichols, 126 
 
 Welford v. Beazeley, 129, 143, 781 
 
 Welland Canal Co. v. Hathaway, 743 
 
 Wellborn v. Finley, 556 
 
 V. Williams, 683 
 
 Wellesley v. Wellesley, 708 
 
 Wells V. Fish, 264 
 
 tj. Maxwell, 268 
 
 V. Morrow, 763, 789 
 
 V. Newbold, 464 n. 
 
 V. Prince, 480 
 
 V. Robinson, 703 
 
 V. Smith, 260, 264 
 
 V. Wells, 260, 268 
 
 Welsh V. Bayaud, 130, 206, 233 
 
 Welstead v. Colville, 666 
 
 Welton V. Divine, 703, 706 
 
 Wendell v. Pratt, 58 
 
 V. Van Rensselaer, 7, 689, 
 
 743 
 
 Wentworth v. Goodwin, 649 
 
 V. Lloyd, 253 
 
 Wesley v. Thomas, 151, 160 
 
 West V. Berney, 390 n., 405 n. 
 
 t». Hendrix, 174,199 
 
 V. Randall, 727 
 
 V. Ray, 462 
 
 V. Raymond, 689 
 
 V. Reid, 767, 772, 773 
 
 V. Spaulding, 603 
 
 V. Vincent, 119 
 
 Westall V. Austin, 257, 264 
 
 Westbrook v. Blythe, 524, 536, 537 
 
 V. Harbeson, 160 
 
 V. Kerrick, 481 
 
clxvl 
 
 INDEX TO CASES CITED OB INTRODUCED. 
 
 Westerman v. Means, 2fi8 
 
 Western v. MacDermot, 596, 597 
 
 V. Perrin, 654 
 
 V. Russell, 129, 137, 193, 273, 
 305 
 Western E. E. Corp. v. Babcock, 160, 
 ' 161, 211, 215, 241, 273, 275, 314, 
 358, 361 
 Western Eeserve Bank v. Potter, 642 
 Westervelt v. Hoff, 756 
 
 V. Matheson, 273, 306, 548 
 West India Dock Company v. Lon- 
 don, The Mayor & Corporation 
 of, 700 
 
 West London Ey. Co. v. London 
 
 & North Western Ey. Co. 84, 598 
 
 Weston «. Berkeley, 789 
 
 V. Filer, 203 
 
 V. Weston, 33 
 
 Wetherbee v. Potter, 126, 127 
 
 Wetherell v. BelKvood, 491 
 
 V. Boon, 762 
 
 u. Weighill, 491 
 
 Wetmore v. Green, 611 
 
 V.White, 124,151 
 
 Whale V. Booth, 669 
 
 Whaley v. Bagenel, 140, 151 
 
 V. Elliot, 324 
 
 Whalley v. Whalley, 253, 276, 747 
 
 Whallon v. Kaufi'man, 605 
 
 Wharf i;. Howell, 199 
 
 Wharton v. May, 201, 286 
 
 Whatman v. Gibson, 596, 804 
 
 Wheat V. Cross, 133 
 
 Wheate v. Hall, 386, 389 n., 405 n. 
 
 Wheatland v. Dodge, 464 n. 
 
 Wheatley v. Bastow, 380 
 
 V. Calhoun, 127, 699 n. 
 
 u. Slade, 305,317 
 
 V. William, 786 
 
 Wheaton v. Baker, 252 
 
 V. Wheaton, 160 
 
 Wheeler v. Board, 236 
 
 V. Bramah, 64 
 
 V. Collier (1 Ca.), 10 
 
 V. CoUier (1 Moo. & 
 
 Mai.), 10, 129 
 
 V. D'Esterre, 151 
 
 V. Hill, 786 
 
 V. Lane, 671 
 
 V. Newton, 142, 206 
 
 V. Sohier, 577 
 
 V. Styles, 358 
 
 V. Wheeler, 50, 563 
 
 1.. Winn, 476, 493 
 
 V. Wright, 337 
 
 Wheelock v. Thayer, 577, 591 n. 
 
 Whelan v. Sullivan, 134, 135, 151 
 
 21 
 
 V. Whelan, 275, 715, 71: 
 
 Whelpdale v. Cookson, 69 
 
 Whioheote v. Bramston, 277, 27 
 
 V. Lawrence, 687, 691, 69 
 
 Whicker v. Crews, 32' 
 
 Whipple V. Foot, 12i 
 
 V. McClure, 27i 
 
 Whitackre v. Wliitackre, 68' 
 
 Whitaker v. Sumner, 1 74, 74i 
 
 r. Whitaker, 192, 194, 26 
 
 V. Williams, 74i 
 
 Whitbeck v. Cook, 600, 61( 
 
 V. Whitbeck, 126, 64J 
 
 Whitbread v. Brockhurst, 149, 15: 
 
 V. Jordan, 448, 766, 76' 
 
 !>. Smith, 201 
 
 Whitby V. Mumford, 57' 
 
 V. Whitby, 13< 
 
 Whitchurch v. Bevis, 140, 149, 149 n. 
 
 15: 
 U.Whitchurch, 616,621 
 Whitcomb v. Minchin, 68 
 
 "Whitcote w. Lawrence, 68 
 
 White's case, 213, 371 
 
 White !). Anderson, 17i 
 
 V. Bartlett, 5i 
 
 V. Bass, 24 n 
 
 V. Baylor, 53! 
 
 V. Beeton, 239, 25! 
 
 V. Bond, 511 
 
 V. Bradshaw, 2i 
 
 V. Brocaw, 711 
 
 V. Butcher, 21i 
 
 V. Carpenter, 701, 70: 
 
 V. Casanave, 671, 68( 
 
 V. Chapin, 24 n., 51 
 
 V. Cox, 211 
 
 V. Cuddon, 3, 15, 31, 32, 62, 69 
 216, 331, 33: 
 V. Damon, 271 
 
 V. Denman, 17: 
 
 V. Dobson, 241, 31: 
 
 V. Dougherty, 67; 
 
 V. Drew, 70: 
 
 V. Egan, 16: 
 
 V. Flannigain, 2 
 
 V. Flora, 273, 27i 
 
 V. Foljambee, 69, 367 n., 375 
 64 
 V. Hillacre, 196, 196 i 
 
 V. Kibby, 77i 
 
 V. Leeson, 50' 
 
 V. Livingston, 17 
 
 V. Nutt, 29 
 
 V. Patten, 55 
 
INDEX TO ~CASES CITED OR INTRODUCED, 
 
 clxvii 
 
 White V. Proctor, 
 
 143, 147 
 
 V. Sheldon, 
 
 702 
 
 V. Stover, 
 v. Stringer, 
 V. Wakefield, 
 
 683 
 
 716, 741 
 
 678, 681, 765 
 
 V. Wakley, 
 V. Walker, 
 
 124, 376 
 646 
 
 V. Watkins, 
 
 42 
 
 V. Weeks, 
 
 158 
 
 V. White, 
 
 184 
 
 V. Whitney, 
 
 577, 611 
 
 V. Williams, 160, 171, 215, 612, 
 
 671, 675, 683 
 
 V. Wilson, 115, 116 
 
 Whitefield v. McLeod, 273 
 
 Whitehill V. Spickle, 569 
 
 Whitehouse v. Hines, 275 
 
 Whitehurst v. Boyd, 400 
 
 Whitemore v. Whitemore, 28, 324 
 
 WJiitescarver v. Bonney, 714 
 
 WTiiteside v. Jennings, 358, 361 
 
 Whitfield V. Fausset, 381, 440 
 
 V. Lequetre, 108 
 
 Whitfield, Incumbent of, re, 82, 89 
 
 Whiting V. Barney, 786 
 
 U.Dewey, 605,611 
 
 i;. Dinsmore, 577 
 
 V. Whiting, 484 
 
 Whitlocke v. Walton, 482 
 
 Whitmarsh v. Walker, 124, 125, 126 
 
 Whitmel v. Farrel, 220 
 
 Whitmore v. Drake, 405 n. 
 
 V. Walker, 181 
 
 Whitney v. Cochran, 153 
 
 i;. Dinsmore, 577, 600 
 
 V. Goddard, 482 
 
 !>. Lewis, 549 
 
 I!. Union Railway Co. 596, 
 
 597 
 
 V. Webb, 482 
 
 U.Whitney, 171,458 
 
 Whittaker v. Whittaker, 464 n. 
 
 Whitteraore v. Bean, 462 
 
 V. Gibbs, 125 
 
 V. Wliittemore, 316 
 
 Whitten u. Wliitten, 703, 706 
 
 Whittick V. Kane, „ 1 74 
 
 Whittier v. Cocheco Manuf. Co. 493 
 
 Whittington v. Corder, 16, 314 
 
 Whitworth v. Adams, 642 
 
 V. Davis, 175 
 
 V. Gaugain, 517, 527 
 
 Whorwood v. Simpson, 262 
 
 V. Whorwood, 709, 710 
 
 Wiches V. Caulk, 727 
 
 Wickenden v. Rayson, 197 
 
 Wickens v. Windus, 465 
 
 Wickersham v. Orr, 
 Wickes V. Clarke, 
 Wickham v. Everest, 
 
 V. Nicholson, 
 Wicklifi'e u. Breckenridge, 
 Wickman v. Robinson, 
 Wicks V. Hunt, 
 Wigg V. Wigg, 
 Wiggins, ex parte, 
 V. Lord, 
 V. McGimpsey, 
 W^igglesworth v. Steers, 
 Wight V. Thayer, 
 Wilbraham v. Livcsey, 
 Wilbur r. How, 
 Wilcocks V. Wilcocks, 
 Wilcox V. Bellaers, 
 
 V. Callowav, 
 
 V. Hill, ' 
 
 V. Howland, 
 
 V. Smith, 
 
 V. Wilcox, 
 Wild V. Lockhart, 
 Wilde V. Forte, 
 
 124 
 
 714 
 
 229 
 
 94 
 
 758 
 
 175 
 
 234, 402 
 
 753 
 
 688, 694 
 
 50 
 
 246, 549 
 
 212 
 
 464 n. 
 
 762 
 
 11 
 
 708 
 
 354, 389 n. 
 
 680, 753 
 
 762 
 
 640 
 
 556 
 
 698 
 
 108 
 
 257, 258, 347, 362, 
 
 400 n., 545, 633 
 
 V. Gibson, 2, 757 
 
 V. Waters, 33 
 
 Wilder v. Ireland, 610 
 
 Wildgoose v. Weyland, 755 
 
 Wilding V. Andrews, 105 
 
 Wiles V. Gresham, ■ 63 
 
 Wiley V. Fitzpatrick, 549 
 
 V. Howard, 611 
 
 r. Knight, 757, 
 
 V. Robert, 148 
 
 V. Smith, 464 n. 
 
 Wilhelm v. Folmer, 708 
 
 Wilker v. Bodington, 624, 762 
 
 Wilkes V. Ellis, ' 61 
 
 Wilkins V. Anderson, 749 
 
 V. Fry, 37 
 
 !•. Lynch, 624 
 
 V. May, 433 
 
 V. Vashbinder, 33 
 
 Wilkinson, ex parte, 82 
 
 V. Candlish, 565 
 
 V. Duncan, 70 
 
 u.Fowkes, 694 
 
 V. Hartley, 35, 648 
 
 1). Lloyd, 371 
 
 V. Scott, 126, 645 
 
 V. Stringer, 225 
 
 V. Torkington, 296 
 
 V. Wilkinson, 156, 201, 645, 
 
 708 
 
 Wilks V. Davis, 288 
 
 V. Groom, 52 
 
clxviii 
 
 INDEX TO CASES CITED OE INTRODUCED. 
 
 Wilks V. Smith, 
 
 240 
 
 V. Wilks, 
 
 710 
 
 Willan V. Willan, 
 
 215 
 
 Willard v. Eastham, 
 
 686 
 
 V. Twitchell, 
 
 577, 599 
 
 Willcox V. Bellaers, 
 
 405 n., 647 
 
 V. Hill, 
 
 755 
 
 Willes V. Greenhill (29 Beav.), 379, 
 
 757 
 V. Greenhill (7 Jur. N. S.), 379 
 
 Willets V. Burgess, 611 
 
 Willett V. Clarke, 20, 259, 339, 400 n. 
 
 Willey V. Robinson, 569 
 
 V. South Eastern Ry. Co. 86 
 V. West Corn. Ry. Co. 76 
 
 William v. Higden, 233 
 
 V. Nevill, 152 
 
 Williams, in re, 176 
 
 V. Amory, 458 
 
 V. Attenborough, 105, 115 
 V. Bacon, 56, 129, 138, 143 
 V. Bailey, 33 
 
 V. Beeman, 577 
 
 V. Bland, 341, 389 n., 405 n. 
 V. Branch Bank, 668, 669 
 V. Brown, 701 
 
 V. Burrell, 583, 601 
 
 V. Carter, 217 
 
 V. Craddook, 521 
 
 V. Dakin, 40 
 
 U.Edwards, 21,55,268,317, 
 342, 653, 654 
 V. Evans, 33, 48, 49 
 
 V. Fullerton, 728, 755, 762, 
 775 
 V. Glenton, 265, 266, 361, 
 637 
 V. Hathaway, 326, 549 
 
 V. Healy, 239 
 
 V. Higden, 305 
 
 V. HoUingsworth, 701, 708, 
 753, 789 
 V. Jones, 123, 124 
 
 V. Lake, 130 
 
 V. Lambe, 792, 793, 797 
 
 V. Llewellyn, 689 
 
 V. Marshall, 253, 687 
 
 V. Millington, 48 
 
 V. Morgan, 326 
 
 u. Morton, 661 
 
 V. Otey, 658 
 
 V. Owen, 200 
 
 I!. Protheroe, 357 
 
 V. Reed, 236, 251 
 
 V. Roberts, 671, 675, 676, 
 680 
 V. Rogers, 287, 627, 640, 747 
 
 Williams v. St. Geo. Har. Co. 75, 7C 
 
 77, 8i 
 
 V. Shaw, 179, 23; 
 
 V. South Wales Ry. Co. 8i 
 
 V. Springfield, 55^ 
 
 V. Starke, 26, 
 
 V. Tatnall, 75 
 
 V. Thomas, 701 
 
 V. Thompson or Bonham, 261 
 
 V. Van Tuyl, 70: 
 
 V. Wace, 10( 
 
 V. Waters, 16! 
 
 V. Williams, 131, 133, 15^ 
 
 263, 70^ 
 
 V. Wood, 68( 
 
 U.Woodruff, 98, li; 
 
 u. Young, 671, 68; 
 
 Williamson v. Barton, 4! 
 
 V. Brown, 75J 
 
 V. Curtis, 658, 6«( 
 
 U.Dale, 114, 117, 12( 
 
 V. Gordon, 73J 
 
 V. Jeffreys, 228 
 
 V. Morton, 668, 66S 
 
 V. Seaber, 694, 695 
 
 V. Test, 60£ 
 
 V. Williamson, 151 
 
 V. Wootton, 221 
 
 Williard v. Williard, 701 
 
 Willie V. Lugg, 196 
 
 Williford v. Bentley, 324 
 
 Willis V. Bank of England, 724, 725 
 
 V. Bridge, 570 
 
 V. Brown, 521 
 
 V. Butcher, 775 
 
 V. Commissioners of Appeals 
 
 in Prize Causes, .639 
 
 V. Jernegan, 275 
 
 V. Latham, 689 
 
 V. Twombly, 378 
 
 V. Vallette, 757 
 
 V. Watson, 462 
 
 V. Willis, 701, 702 
 
 Willison V. Watkins, 481, 484 
 
 Willoughby v. Willoughby, 738 
 
 Wills V. Stradling, 151, 152 
 
 Willson u. Betts, 482 
 
 u. Willson, 600,611 
 
 Wilmot V. Pike, 380 
 
 ];. Wilkinson, 337, 561, 569 
 
 Wilsey v. Dennis, 573 
 
 Wilson V. Allen, 650 
 
 V. Bennett, 405 n., 665, 666 
 
 V. Buchanan, 714 
 
 V. Carey, 22 
 
 V. Chalfant, 124 
 
 V. Clapham, 633 
 
INDEX TO CASES CITED OE INTEOD0CED. 
 
 clxix 
 
 Wilson V. Clements, 133 
 
 V. Cochran, 577, 600, 610 
 
 V. Davisson, 658, 659, 679, 680 
 V. Doster, 668, 669 
 
 V. Eden, 462 
 
 V. Forbes, 577, 611 
 
 V. Foreman, 708 
 
 V. Forster, 445 n. 
 
 V. Foster, 88 
 
 V. Graham, 675, 676 
 
 V. Greenwood, 99 
 
 V. Hart, 7, 145, 596, 755, 762, 
 763 
 V. Hill, 762 
 
 V. Hillyer, 789, 790 
 
 V. Holcomb, 749 
 
 t>. Howser, 714 
 
 V. Eeane, 209 
 
 V. Keating, 224, 671 
 
 V. Knubley, 612 
 
 V. Miller, 755 
 
 V. Rastall, 785 
 
 V. Short, 356 
 
 V. Spencer, 358, 361, 611 
 
 V. Stanley, 493 
 
 V. Troup, 396, 563, 687, 786 
 V. Wedenham, 577 
 
 V. West Hartlepool Kail- 
 way Co. 151, 154 
 V. Whateley, 33 
 V. Williams, 205, 305, 308, 310, 
 314, 317, 647 
 V. Wilson, 151, 240, 370, 492 
 V. Wood, 699 
 V. Wormol, 520, 720 
 Wilton V. Dunn, 181 
 . V. Harwood, 151 
 Wiltshear v. Cottrell, 33 
 Wiltshire v. Rabbits, 380 
 V. Sims, 48 
 Wilty V. Hightower, 762 
 Winch V. Winchester, 162, 324, 325, 
 
 647 
 Winchell «. Latham, 158 
 
 Winchester v. Baltimore Railroad 
 
 Co. 757 
 
 V. Charter, 714 
 
 Winchester, Bishop of, v. Mid 
 
 Hants Railway Co. 255 
 
 Winchester, Bishop of, v. Paine, 405 n., 
 
 649, 768 
 Windsor, &c. Ry. in re, 88 
 
 Wineland v. Coonce, 720 
 
 Wing V. Gray, 169 
 
 V. Tottenham & Hampstead 
 Junction Railway Co. 255 
 Wingard v. Taft, 124 
 
 Winged v. Lefebury, 177, 220, 749 
 Wingfield v. Tharp, 376 
 
 Winn V. Albert, 149 
 
 Winne v. Reynolds, 213, 299, 312, 386, 
 
 393 
 Winnipiseogee Lake Co. v. Young, 492, 
 
 493 
 
 Winshjp V. Hudspeth, 493 
 
 Winslow V. Merchant Ins. Co. 33 
 
 V. Rand, 583 
 
 Winsor v. McClellan, 775 
 
 Winter v. Anson, Lord, 671, 672, 673, 
 
 675, 676, 676 n., 680, 757 
 
 V. Blades, 628 
 
 V. Brockwell, 123, 124 
 
 V. Devreux, 206 
 
 V. Geroe, 688 
 
 V. Homan, 523 
 
 V. Livingston, 240 
 
 V. Peterson, 26 
 
 V. Winter, 463 
 
 Winterbottom v. Ingham, 179, 1,80 
 
 Wintermute v. Light, 1 73 
 
 V. Snyder, 273 
 
 Winton v. Sherman, 241 
 
 Wire V. Pemberton, 145 
 
 Wisden v. Wisden, ' 462, 463 
 
 Wise, in re, 202 
 
 V. Ponsonby, 108, 382 
 
 Wiseman's case, 713, 714 
 
 Wiseman v. Beake, 277 
 
 V. Hutchinson, 680 
 
 Wiswall V. Hall, 160 
 
 V. McGown, 233, 257, 260, 
 
 268, 316 
 
 Witbech V. Waine, 326, 549 
 
 Withers v. Baird, 573 
 
 V. Pinchard, 206 
 
 V. Withers, 701 
 
 Witherspoon v. Anderson, 287, 358, 
 
 611, 747 
 Withes u. Lee, 671 
 
 Withy V. Cottle, 210, 224, 352 
 
 V. Mumford, 577 
 
 Witman v. Felton, 53 
 
 Witty V. Hightower, 600 
 
 Woburn v. Henshaw, 785 
 
 Wodehouse v. Farebrother, 166, 222 
 Wolcott V. Winchester, 197, 727 
 
 Wolfe V. Frost, 124 
 
 V. Luyster, 10, 11 
 
 Wolley V. Jenkins, 405 n. 
 
 Wolseley v. Cox, 571 
 
 Wolterbeek u. Barrow, 172 
 
 Wolveridge v. Steward, 38 
 
 Wood, in the matter of, 467 
 
 V. Abrey, 285, 286 
 
clxx 
 
 INDEX TO CASES CITED OE INTRODUCED. 
 
 Wood V. Bank of Kentucky, 
 
 681, 682, 
 
 Woods V. Bailey, 
 
 
 67 
 
 V. Beetlestone, 202, 203, 405 n. 
 
 V. Dike, 
 
 
 14 
 
 u. Bennett, 
 
 212 
 
 V. Hall, 
 
 
 1' 
 
 V. Bernal, 
 
 265 
 
 V. Hudson, 
 
 
 1 
 
 V. Birch, 
 
 700 
 
 V. Huntingford, 
 
 
 19, 
 
 V. Copper Mines Co. 
 
 222 
 
 V. Hyde, 
 
 
 188 r 
 
 V. Court, 
 
 429 
 
 V. Martin, 
 
 
 552, 75, 
 
 V. Downes, 252, 253, 
 
 690, 693, 
 
 V. Monell, 
 
 
 91 
 
 
 696 
 
 V. Sawin, 
 
 
 161 
 
 V. Edes, 
 
 124 
 
 V. Woods, 
 
 
 78i 
 
 V. Griffith, 182, 198, 
 
 306, 356 
 
 Woodson V. McClelland, 
 
 
 72 
 
 V. Harman, 
 
 660, 663 
 
 V. Palmer, 
 
 
 64i 
 
 V. Jackson, 
 
 719 
 
 Woodward v. Allen, 
 
 
 601 
 
 V. Keep, 
 
 28,31 
 
 V. Clark, 
 
 
 76! 
 
 V. Kelly, 
 
 492 
 
 V. Harris, 
 
 
 211 
 
 V. Lake, 
 
 123, 124 
 
 V. Miller, 
 
 
 1 
 
 V. Lambirth, 
 
 354 
 
 V. Seely, 
 
 
 12. 
 
 V. Leadbitter, 
 
 124 
 
 V. Sulez, 
 
 
 12. 
 
 i. Londonderry, Lord 
 
 , 751 
 
 V. Woodward 
 
 , 
 
 68: 
 
 V. Machin, 
 
 271 
 
 Woodyatt v. Gresley, 
 
 
 77! 
 
 V. Machu, 
 
 351, 352 
 
 Wooley V. Chamberlain, 
 
 
 74: 
 
 V. Manley, 
 
 42, 123 
 
 Woollam V. Hearn, 
 
 
 161 
 
 V. Mann, 55, 102, 104, 
 
 109,114, 
 
 Woolley's Trust, in re, 
 
 
 91 
 
 119, 720, 737, 
 
 753, 787, 
 
 Woolstencroft v. Woolstencroft, 191 
 
 
 789, 791 
 
 Wooster v. Butler, 
 
 
 161 
 
 V. Midgley, 122, 132, 
 
 136, 137, 
 
 Wooton V. Hinkle, 
 
 
 i: 
 
 139 
 
 149, 151 
 
 Worcester, Bishop of, v. 
 
 Parker, 74: 
 
 ('. Norman, 
 
 700 
 
 Worden v. Williams, 
 
 
 751 
 
 V. Patteson, 
 
 209 
 
 Work ['. Brayton," 
 
 
 68: 
 
 V. Perry, 
 
 167, 555 
 
 Worley v. Frampton, 
 
 
 57i 
 
 V. Kichardson, 216, 405 n. 
 
 Wormland v. Maitland, 
 
 
 75; 
 
 V. Scarth, 28, 133, 
 
 134, 140, 
 160, 401 
 
 Wormley v. Wormley, 
 
 668, 
 
 661, 687 
 749, 75i 
 
 V. Warner, 
 
 201 
 
 Worrall v. Jacob, 
 
 
 711 
 
 V. White, 
 
 232 
 
 V. Munn, 
 
 
 121 
 
 Wood & Foster's case, 
 
 247 
 
 Worsley v. Scarborough, 
 
 Lord, 757 
 
 Woodbury v. Luddy, 
 
 233 
 
 
 
 758, 761 
 
 Woodcock, in re, 
 
 473 
 
 V. South Devon 
 
 Ry 
 
 Co. 85 
 
 V. Bennet, 
 
 233, 573 
 
 
 
 8- 
 
 Woodcock's Trusts, re. 
 
 110 
 
 Worth V. Northam, 
 
 
 71: 
 
 Wooden v. Haviland, 
 
 171 
 
 Wortham v. Dacre, Lore 
 
 
 92, 641 
 
 Woodford V. Charnley, 
 
 719 
 
 V. Pemberton, 
 
 
 561 
 
 Woodgate v. Woodgate, 
 
 656 
 
 Worthington v. Gimson, 
 
 
 74; 
 
 Woodhouse v. Jenkins, 
 
 604 
 
 V. Morgan, 
 
 436, 
 
 681, 766 
 
 V. Meredith, 
 
 687 
 
 
 
 77: 
 
 Woodhull V. Neafie, 
 
 102 
 
 V. Warring 
 
 ton, 
 
 16, 19 
 
 Woodie's case. 
 
 715 
 
 
 339 
 
 362, 57: 
 
 Woodman v. Bodfish, 
 
 714 
 
 Wotton V. Cooke, 
 
 
 614 n 
 
 V. Coolbroth, 
 
 433 
 
 Wragg V. Comp. Gen. 
 
 
 67 
 
 V. Eastman, 
 
 161 
 
 Wray v. Steele, 
 
 
 701, 70 
 
 V. Freeman, 
 
 233 
 
 V. Williams, 
 
 
 62 
 
 V. Morrell, 
 
 704 
 
 Wren v. Kirton, 
 
 
 105, 69 
 
 V. Saltonstall, 
 
 722 n. 
 
 Wrigby v. Holdgate, 
 
 
 42 
 
 V. Tufts, 
 
 58 
 
 Wright, ex parte, 
 
 
 74 
 
 Woodroffe v. Allen, 
 
 277 
 
 V. Bates, 
 
 
 17 
 
 V. Titterton, 
 
 353 
 
 V. Bigg, 
 
 
 4 
 
 Woodruif v. Cook, 
 
 688, 738 
 
 V. Bond, 
 
 
 35 
 
INDEX TO CASES CITED OE INTRODUCED. 
 
 clxxi 
 
 Wright V. Colls, 
 V. Dame, 
 V. Dannah, 
 V. De Klyne, 
 u. Fearnley, 
 V. Goff, 
 X . Griffith, 
 V. Howard, 
 r. Leonard, 
 V. Maunder, 
 u. Mayer, 
 V. Miller, 
 V. Moore, 
 V. Smyth, 
 r. Snowe, 
 
 179 
 
 67], 749 
 
 147 
 
 15,159 
 
 724 
 
 171 
 
 337, 343 
 
 262, 302, 653 
 
 743 
 
 60 
 
 785 
 
 721 
 
 493 
 
 239 
 
 209, 743 
 
 V. Stansfield, 727 
 
 V. Trustees Meth. Epis. 
 
 Church, 462 
 
 V. Vanderplank, 252, 253, 276, 
 
 286, 696 
 
 V. Welleslev, 267 
 
 V. Williams', 491 
 
 V. AVilson, 31, 275 
 
 V. Woodland, 680 
 
 I'. Wrisrht, 104 
 
 Wrightson v. Hudson, 728 
 
 Wrigley v. Sykes, 388, 662 n. 
 
 Wrixon v. Vize, 477, 484, 485, 487 
 
 Wrout r. Dawes, 49, 667, 671, 680 
 
 Wuesthofi' V. Seymour, 211, 215 
 
 Wyatt V. Allen, 145 
 
 V. Barwell, 728 
 
 Wycherley v. Barnard, 107, 117 
 
 Wyckoff V. Remsen, 197 
 
 Wycombe Railway Co. v. Don- 
 
 nington Hospital, 234 
 
 Wyman v. Ballard, 577, 610, 611 
 
 V. Brown, 713, 714 
 
 V. Harman, 605 
 
 V. Winslow, 165 
 
 Wynn v. Cox, 56 
 
 V. Morgan, 264 
 
 V. Williams, 415, 624, 660, 
 
 713 
 
 Wynne v. Alston, 671 
 
 V. Griffith, 231, 353, 425, 
 
 426 
 
 V. Morgan, 650 
 
 V. Price, 210, 376 
 
 V. Styan, 486 
 
 V. Thomas, 563 
 
 Wyse, in re, 478 
 
 V. Myers, 181 
 
 Wythe V. Henniker, 680 
 
 Wytlics V. Lee, 68, 295 
 
 Wyvill V. Exeter, Bishop of, 292, 293, 
 
 294, 652 
 
 Y. 
 
 
 
 Yale V. Seely, 
 
 
 126 
 
 Yallop, ex parte. 
 
 
 746 
 
 Yancey v. Lewis, 
 
 549 
 
 600 
 
 Yancy v. Manck, 
 
 
 671 
 
 Yanger v. Skinner, 
 
 
 208 
 
 Yarnall, Ann, in re, 
 
 
 473 
 
 Yates, in re, 
 
 
 102 
 
 V. Farebrother, 
 
 
 51 
 
 V. Gardiner, 
 
 
 240 
 
 )'. Plumbe, 
 
 
 443 
 
 Yea V. Field, 
 
 441, 
 
 442 
 
 Yeackel v. Litchfield, 
 
 688, 
 
 694 
 
 Yeakle v. Jacob, 
 
 123 
 
 126 
 
 Yeates v. Prior, 
 
 
 244 
 
 Yeavely v. Yeavcly, 
 
 
 758 
 
 Yerby v. Grisby, 
 
 48 
 
 667 
 
 Ye^i ombe v. Landor, 
 
 
 523 
 
 Yonge V. Furse, 
 
 197 
 
 198 
 
 V. Reynell, 
 
 
 212 
 
 York V. Eaton, 
 
 
 697 
 
 York & North Midland Ry. Co. v. 
 
 Hudson, 98 n. 
 York Buildings Company v. Mac- 
 kenzie, 687, 691, 694, 696 
 Yost V. Devault, 234 
 Youle V. Richards, 199 
 Young V. Burton, 210 
 V. Clare Hall, 490 
 V. Clerk, 5, 214, 273, 274 
 V. Covell, 4 
 V. Frost, 211 
 V. Guy, 667 
 V. Herdie, 476 
 V. Isett, 680 
 V. Lilliard, 315, 386, 548 
 V. Paul, 129 
 V. Peachy, 702 
 V. Radford, 619 
 V. Raincock, 559, 607 
 u. Rathbone, 268, 386 
 V. Roberts,. 66, 405 n. 
 V. Waterpark, Lord, 478, 488 
 V. White, 49 
 V. Wood, 675 
 V. Young, 172 
 Younge v. Duncombe, 229 
 Younger v. Welch, 240 
 Younghusband v. Gisborne, 524 
 Yourt V. Hopkins, 145 
 Youst V. Martin, 753 
 
 Zabriskie v. Smith, 
 Zacharias v. Zacharias, 
 
 4 
 484 
 
clxxii 
 
 INDEX TO CASES CITED OR INTRODUCED. 
 
 Zagury v. Furnell, 
 Zane v. Cawley, 
 Zeiter v. Bowman, 
 Zeller v. Ei kert, 
 Zentmyer v. Miltower, 
 
 292 
 173 
 758 
 484 
 671 
 
 Zeringue v. Williams, 324 
 
 Zickafosse v. Hulick, 126 
 
 Zimmerman v. Harmon, 687 
 
 Zouch V. Swaine, 613 
 
 Zunts V. Courcelles, 727 
 
ADDENDA ET CORRIGENDA. 
 
 Page 2, in note (1), line 3 from end, for " availing," read " avoiding. 
 
 Page 67, to note (x), add : " S. C. 2 De G., J. & S. 450 ; Kirkwood v. Thompson, 
 2 De G., J. & S. 613 ; Shaw v. Burney, 2 De G., J. & S. 468." 
 
 Page 123, to note (Z'), add : " Howe v. Batchelder, 49 N. H. 209." 
 
 Page 126, in note (n), line 20 from beginning, after " 3 Day, 484," insert : " White 
 V. Foster, 102 Mass. 377, 378 ; Shaw v. Carhrey, 13 Allen, 462." 
 
 Page 132, in note (d), line 8 from beginning, after " 23 L. T. 68," insert : " The 
 Oriental Steam Company v. Briggs, 4 De G., P. & J. (Am. ed.), 191, and cases in 
 note (1). 
 
 Page 133, in note (m), line 35 from beginning, after "133," insert: "Abbott v. 
 Shepard, 48 N. H. 14." 
 
 Page 167, note (e), line 35 from beginning, for " without recourse, does not divert," 
 read, " without more, does not divest ; " and at the end of this note add : " Sawyer v. 
 Peters, 50 N. H. 143." 
 
 Page 169, note (y), line 21 from beginning, after " 2 Gush. 271," insert : " Lyle «. 
 Richards, L. E. 1 H. L. 222." 
 
 Page 195, to note (a), add : "Andrews v. Bishop, 5 Allen, 490 ; " and to note (6) add : 
 " Brownson v. Lawrance, L. R. 6 Eq. 1 ; Eno v. Tatham, 32 L. J. Ch. 311 ; S. C. 3 De 
 G., J. & S. 443 ; Moore v. Moore, 1 De G., J. & S. 602." 
 
 Page 197, note (r), in lines 4 and 5 from beginning, for "prior recorded assignment," 
 read " prior unrecorded assignment ; " and at end of same note add : " Reed v. Elwell, 
 46 Maine, 270 ; Purdy v. Huntington, 46 Barb. 389." 
 
 Page 233, note (n), close of first paragraph, add: "Milkman v. Ordway, 106 Mass. 
 232." 
 
 Page 234, note («), in line 7, after "9 Jur. N. S. 1333," insert: "Middleton v. 
 Greenwood, 2 De G., J. & S. 142." 
 
 Page 250, note {q), in lines 14 and 15 from beginning, for " an agent " read " a 
 stranger." 
 
 Page 260, note (a), in line 6 from beginning, after "44 N. Y. 618," insert : "Boston 
 & Maine Railroad v. Bartlett, 10 Gray, 384." 
 
 Page 268, note (c), in line 9 from the end, after "719 & note," insert, "Puller v. 
 Horey, 2 Allen, 324." 
 
 Page 314, to note {a), add : " Moxey v. Bigwood, 4 De G., F. & J. 351." 
 
 Page 324, in note (jr), line 56 from end, for " much inconvenience," read " much con- 
 venience." 
 
 Page 484, note {i), line 28 from beginning, for " divert " read " divest," 
 
 Page 495, note (W), line 16 from beginning, for " Attending witnesses," read " Attest- 
 ing witnesses." 
 
 Page 596, note (m), after "18 W. E. 820" insert, "Linssee v. Mixer, 101 Mass. 
 
 12." 
 
clxxiv ABDEND^ ET CORRIGENDA. 
 
 Page 645, note (6), lines 11 and 10 from end, for "defends" read "defeat," and st 
 
 end of same note add : " Trafton v. Hawes, 102 Mass. 533, 541." 
 Page 646, note (h), line 11 from end, for " as " read " or." 
 Page 702, note (u), line 7 from beginning, for "rebutting" read "rebutted." 
 Page 728, note (t), after "Potter v. McDowell, 43 Missou. 43," insert "Everett v. 
 
 Stone, 3 Story, 446 ; " and in same note, line 21 from end, after " 7 Allen, 18," insert: 
 
 "White V. Foster, 102 Mass. 380." 
 Page 743, note (t), lino 2 from end, for "ante, 56 " read "ante, 58," and in note (k), 
 
 same page, line 12 from beginning, after " 7 De G., M. & G. 9," insert : " Eamsden v. 
 
 Dyson, L. K. 1 H. L. 129." 
 Page 749, note (a), at end, add : " Hughes v. Edwards, 9 Wheat. 489 ; Wright v. 
 
 Eaves, 10 Eich. Eq. (S. Car.) 582." 
 
 Page 758, to note (d), add : " Eolland v. Hart, L. E. 6 Ch. Ap. 678." 
 
 Page 775, in note (e), line 9 from beginning, after " 12 Allen, 472, 474," insert : 
 
 "White V. Poster, 102 Mass. 375." 
 
THE LAW 
 
 OP 
 
 VENDORS AND PURCHASERS 
 
 OF 
 
 ESTATES. 
 
THE LAW 
 
 or, 
 
 VENDORS AND PURCHASERS 
 
 OF 
 
 ESTATES. 
 
 J 
 
 INTRODUCTION. 
 
 1. Vendors' liabUity to disclose defects — 
 
 where the purchaser has knowledge, 
 or they are patent — they must not be 
 concealed. 
 
 2. Sale subject to all faults. 
 
 3. Eandom praise by vendor. — False state- 
 
 ment of value ; small fine ; speedy va- 
 cancy ; rich meadow. 
 
 4. No deceit, tmless party off his guard. 
 
 5. False statement of valuation fatal : so of 
 
 rent. 
 
 6. Misrepresentations by a stranger. 
 
 7. Misrepresentations and non-disclosures by 
 
 a purchaser — must not mislead the 
 seller — nor conceal a, death which 
 adds to value. 
 
 8. Concealment of .incumbrances and defects 
 
 in title — by attorney. 
 
 9. Same attorney for both sides. 
 
 10. Attorney may not disclose defect to party 
 
 interested. 
 
 11. Obligation of grantor of annuity. 
 
 12. Necessity for investigation of title. 
 
 13. Punishment for concealing deeds or falsi- 
 
 fying pedigrees. 
 
 14. Purchasers bound by covenants in lease. 
 
 15. Inquiry after incumbrances. 
 
 16. ) Where a purchaser may take posses- 
 
 17. ) sion. 
 
 18. Stipulation for vacant possession. 
 
 19. Purchaser of equitable rights. 
 
 20. Succession duty. 
 
 21. Title to be investigated before sale. 
 
 Moral writers insist that a vendor is bound, in foro conscien- 
 ti(B, to acquaint a purchaser with the defects of the subject of the 
 contract.(o) Our law does not entirely coincide with this strict 
 
 (a) Cic. de Off. 3, 13 ; Grotius de Jure onomy, xxv. 14 ; 1 Paley's Mor. Phil. bk. 
 
 Belli ac Pacis, 1. 2, c. 12, s. 19; PufFendorf 3, ch. 7; [2 Kent (11th ed.), 482; Mit- 
 
 de Jure Naturae et Gentium, 1. 5, c. 3, a. 2 ; chell v. Zimmerman, 4 Texas, 75. See the 
 
 Puffendorf de Off. 1. 1, c. 15, s. 3 ; Vale- discussion of this subject in Paddock v. 
 
 rius Maximus, 1. 8, c. 11, et vide Deuter- Strobridge, 29 Vt. 470.] 
 
 VOL. I. 1 [1] 
 
2 CONCEALMENT OP DEFECTS BY SELLERS. 
 
 precept of morality. (ft) If a person enter into a contract, with 
 full knowledge of ail the defects in the estate, the question can- 
 not arise : scientia enim vtrinque par pares facit contrahentes.(c) 
 So, if at the time of the contract, the vendor himself was not 
 aware of any defect in the * estate, it seems that the purchaser 
 must take the estate with all its faults, and cannot claim any 
 compensation for them.(rf) And even if the purchaser was 
 ignorant of the defects, and the vendor was acquainted with 
 them, and did not disclose them to the purchaser ; yet, if they 
 were patent, and could have been discovered by a vigilant man, 
 no relief will be granted against the vendor; and equity follows 
 the law.{l) But it has been decided, that if a vendor, during 
 the treaty, industriously prevent the purchaser from seeing a de- 
 fect which might otherwise have easily been discovered, ,he is 
 not entitled to the aid of a court of equity : and it is conceived, 
 that he could not sustain an action against the purchaser for a 
 breach of the contract.(e) 
 
 2. If a vendor know that there is a latent defect in his estate, 
 which the purchaser could not possibly discover, it is not clear 
 that he is not bound to disclose his knowledge, although the 
 estate be sold, expressly subject to all its faults. (/) Nor can a 
 seller knowingly refer to an ignorant agent; and he would be 
 
 {h) Vide infra, ch. 8; [2 Kent (11th ed.), 140; 4 Taunt. 785 ; Haywood «. Cope, 25 
 
 484, 490; Alston v. Outerbrldge, 1 Dev. Beav. 140; [2 Kent (llth ed.), 482,483, 
 
 Ch. 18 ; Laidlaw v. Organ, 2 Wheat. 178.] 485, 486 ; Baker v. Seaborn, 1 Swan, 54 ; 
 
 (c) Grotius et Puffeudorf, sup. [See 1 Story Eq. Jur. § 192 ; Mason v. Crosby, 
 
 Cockburu C. J., iu Bates v. Hewitt, L. R. 1 Wood. & M. 342. The passive acquies- 
 
 2 Q. B. 605. As to misrepresentations of cence of the seller in the self-deception of 
 
 amatterof law, see Martin K.Wharton, 38 the buyer, will not entitle the buyer to 
 
 Ala. 637.] avoid the contract. Smith v. Hughes, L. 
 
 {d) Lucas V. James, 7 Hare, 418. E. 6 Q. B. 597.] 
 
 (c) Shirley </. Stratton, 1 Bro. C. C. (/) Post, ch. 8, s. 4. 
 
 (1) [See 2 Kent (Uth ed.),485, 486; Tayraon v. Mitchell, 1 Md. Ch. 496.] In Tildes- 
 ley V. Clarkson, 30 Beav. 419 ; 8 Jur. N. S. 163, a contract to take a lease of a,' newly- 
 built house, with covenants to repair, was not enforced after possession taken, on account 
 of defects in the building, some of which were patent, on the ground that in such a 
 contract there was an Implied condition to finish and deliver the house to the incoming 
 tenant in a, state of repair proper to the character of the house. [But see Oxford v. 
 Provaud, L. R. 2 P. C. 141, et qumre. A mistake as to the value of the consideration 
 given for the conveyance of land, is not a sufficient ground for setting aside the con- 
 ' veyance, where the vendor had the means of a*sHliBg the mistake by inquiry, and no 
 fraud or falsehood was used to influence his judgment. Warner ii. Daniels, 1 Wood. & 
 M. 90, 101, 102 ; Mason v- Crosby, 1 Wood. & M. 342.] 
 
 [2] 
 
MISREPRESENTATIONS OF VALUE OR RENT. 3 
 
 bound by a fraudulent representation or a fraudulent conceal- 
 ment by his agent, (g-) 
 
 3. Our law adopts the rule of the civil law, "Simplex com- 
 mendatio non obligat " : if the seller merely made use of those 
 expressions, which are usual to sellers, who praise at random the 
 goods which they are desirous to sell, the buyer could not pro- 
 cure the sale to be dissolved.(/i) An action of deceit cannot be 
 maintained against a vendor for having falsely affirmed that a 
 person bid a particular sum for the estate, although the purchaser 
 was thereby induced to purchase it, and was deceived in the 
 value.(i) Nor is a seller bound to tell the purchaser what offers 
 have previously been made to him, for ^ concealment to be 
 material must be of something that the party concealing was 
 bound to state.(A:) Neither can a purchaser obtain any relief 
 against a vendor for false affirmation of value ;(/) for * value 
 consists in judgment and estimation, in which many men dif- 
 fer. So, where a church lease was described in the particulars 
 of sale, as being nearly of equal value with a freehold, and 
 
 (g) Fuller v. Wilson, 3 Q. B. 58, 68 ; 
 Sugd. H. of L. 644 ; .Cornfoot v. Fowke, 
 6 M. & W. 358, et qu. ; [Doggett v. Emer- 
 son, 3 Story, 700, 735, 736; Bennet v. 
 Judson, 21 N. Y, 238 ; Fitzsimmons v. Jos- 
 lyn, 21 Vt. 129, 140-142 ; 1 Story Eq. Jur. 
 § 193 a; Scholefield v. Templer, Johns. 
 Eng. Ch. 155; Wilde v. Gibson, 1 H/L. 
 Cas. 605 ; Bowens u. Jolihson, 10 Sm. & 
 M. 169; Hunt v. Moore, 2 Barr, 105; 
 Mason v. Crosby, 1 Wood. & M. 342, 358 ; 
 Havtopp V. Hartopp, 21 Beav. 259 ; 1 1 
 Am. Law Reg. N. S. 149, 150.] 
 
 (ft) 1 Dom. 85 ; Chandelor o. Lopus, 
 Cro. J. 4 ; Pike v- Vigers, 2 Dru. & Wal. 
 266 ; Gompertz v. Bartlett, 2 E. & B. 849 ; 
 2 Eq. E. 177. [See Dimmock v. Hallett, 
 L. R. 2 Oil. Ap. 27, 28, 29, 30 ; Hammatt 
 V. Emerson, 27 Maine, 326; Manning v. 
 Albee, 11 Allen, 522 ; Miller v. Craig, 36 
 111. 109; Hazard u. Irwin, 18 Pick. 105; 
 Mooney v. Miller, 102 Mass. 217; Hemmer 
 V. Cooper, 8 Allen, 334-; Gordon v. Par- 
 melee, 2 Allen, 212; Oneida Manuf. Co. 
 V. Lawrence, 4 Cowen, 440; Sweet v. 
 Colgate, 20 John. 196; 1 Story Eq. Jur. 
 
 § 191 ; 2 Kent (11th ed.), 485; Chitty 
 Contr. (10th Eng. ed.) 477.] 
 
 (i) 1 Ro. Abr. 101, pi. 16; 1 Sid. 146; 
 [Mo.iTill V. Wallace, 9 N. H. 115; Davis u. 
 Meeker, 5 John. 354 ; Cross v. Peters, 1 
 Green). 389 ; Saunders v. Hatterman, 2 
 Ired. (N. C.) 32 ; Fagan v. Newson, 1 Dev. 
 Eq. 22; 2 Kent (11th ed.), 486.] 
 
 (k) Irvine v. Kirkpatrick, 7 Bell's H. of 
 L. Cases, 232. 
 
 (I) Harvey, v. Young, Yelv. 20 ; Dnck- 
 enfield v. Whichcott, 2 Ch. C. 204 ; Ekins 
 V. Tresham, 1 Lev. 102; 1 Sid. 146, as 
 Leakins v. Clissell ; [Dupont ih Payton, 
 2 E. D. Smith (N. Y.), 424; Crank v. 
 Cole, 10 Ind. 485 ; Page v. Bent, 2 Met. 
 371, 374; Brown v. Castles, 11 Cush. 348, 
 350. So of representations as to the price 
 paid by the vendor for the estate. " A 
 purchaser ought nbt to rely upon them, 
 for it is settled that, even when they are 
 false and uttered with >■ view to deceive, 
 they furnish no ground of action.'' Hein- 
 mer v. Cooper, 8 Allen, 334 ; Medbury v. 
 Watson, 6 Met. 246.] 
 
 [3] 
 
4 MISEEFEESENTATIONS OF VALUE OR RENT. 
 
 renewable every ten years upon payment of a small fine, the 
 purchaser was not allowed any abatement, although the fine 
 was considerable, and the steward of the estate had remon- 
 strated with the vendor, before the sale, upon his false descrip- 
 tion. (m) A statement in the particulars of an advowson, that 
 an avoidance of the preferment was likely to occur soon, operates 
 simply as a caution to put the purchaser upon making inqui- 
 ries,(w) So a statement, that the property is uncommonly rich 
 water-meadow land, will not annul the contract, although the 
 land is imperfectly watered. (o) And where a mine had been 
 formerly worked and abandoned, and a person desiring to take a 
 lease of it inspected it, and then contracted for a lease, he was 
 held to be bound, although the mine proved worthless, and the 
 owner had not communicated the fact that he had himself 
 worked the mine twenty years before, and had found it unprofit- 
 able.{p) And mere puff', as that a house is fit for a respectable 
 family, is entitled to no weight.(g) But an untrue representa- 
 tion that a house was not damp, was held fatal in equity, whether 
 made in ignorance or in fraud.(r) 
 
 4. In an action of deceit, it is not sufficient to show that the 
 vendor was guilty of a misrepresentation — for example, that be 
 represented the grantor of an annuity, which was offered for sale, 
 as a man of large property, and that the purchaser need be under 
 no apprehension as to his responsibility, whilst, in point of fact, 
 he was in confinement for debt, and had been so for some time 
 — but it must be shown that some deceit was practised for the 
 purpose of throwing the party off his guard, and preventing him 
 from being watchful.(s) (1) But if a seller affirm that a life for 
 
 (m) Brown w. Fenton, MS. 14 Ves. 144; [A seller is bound to act with the utmost 
 
 White V. CuddoD, 8 CI. & Fin. 766 ; Sugd. good faith, and if he mislead the purchaser ' 
 
 H. of L. 589 ; 5 De 6., M. & G. 107. by a false or mistaken statement as to any 
 
 (n) Trower v. Newcome, 3 Mer. 704. one essential circumstance, the sale is void- 
 
 (0) Scott V. Hanson, 1 Sim. 13. able. Doggett v. Emerson, 3 Story 700.] 
 {p) Haywood v. Cope, 25 Beav. 140. (s) Dawes v. King, 1 Stark. Ca. 75 ; 
 (j) Magennis ». Fallon, 2 Mol. 561. Gerhard v. Bates, 2 Q. B. 476; [Ham- 
 (r) Strangways v. Bishop, 29 L. T. 120. matt u. Emerson, 27 Maine, 326, 327 ; 
 
 (1) A demise v/ith possession to one who represented that he must have the apartments 
 for the business of a perfumer, whereas he intended them for a brothel, was held to be 
 collateral to the contract, and not to avoid the lease. It was supposed there was a rem- 
 edy in equity ; sed gu., the false representation would have excused the lessor from per- 
 forming the contract. Feret v. Hill, 15 C. B. 207 ; see Id. 611. 
 
MISREPRESENTATIONS OF VALUE OR RENT. 
 
 which the property is holden is a healthy one, although he has 
 recently insured the life at a rate exceeding the highest charged 
 for a healthy life of the same age, he cannot enforce the contract 
 in equity. (<) 
 
 5. And if a vendor affirm, that the estate was valued by per- 
 sons of judgment, at a greater price than it actually was, and 
 the purchaser * act upon such misrepresentation, the vendor 
 cannot compel the execution of the contract in equity,(M) nor 
 would he, it should seem, be permitted to maintain an action 
 for non- performance of the agreement; but a seller is not bound 
 to communicate to the purchaser the result of a recent valua- 
 tion, (a;) A remedy will lie against a vendor for falsely affirm- 
 ing that a greater rent is paid for the estate than is actually 
 reserved,(y) because that is a circumstance within his own 
 knowledge ; and this although the purchaser did not depend 
 
 Stone V. Denny, 4 Met. 151 ; Howard v. 
 Gould, 28 Vt. 524; Hanson tf. Edgerly, 
 29 N. H. 343 ; Sterens v. Fuller, 8 N. H. 
 463 ; Paddock v. Strobridge, 29 Vt. 470 ; 
 Doggett V. Emerson, 3 Story, 700 ; Daniel 
 V. Mitchell, 1 Story, 172 ; Warner v. Dan- 
 iels, 1 Wood. & M. 90 ; Smith v. Babcock, 
 2 Wood. & M. 246 ; Tuthill v. Babcock, 
 2 Wood. & M. 298 ; Lewis v. M'Lemore, 
 10 Yerger, 206 ; M'Ferran v. Taylor, 3 
 Cranch, 270 ; Eosevelt v. Fulton, 2 Cowen, 
 134; Smith v. Hughes, L. R. 6 Q. B. 
 597; Brown u. Castles, U Cush. 348. 
 If the representations relate to material 
 facts not within the observation of the op- 
 posite party, and are made with intent to 
 deceive, they are actionable; but if the 
 truth can be ascertained by ordinary vigi- 
 lance, they are not actionable. Brown v. 
 Castles, vbi supra ; Mooney v. Miller, 102 
 Mass. 217, 220. See Aberaman Iron 
 Works V. Wickens, L. E. 4 Ch. Ap. 101. 
 But it has been held that a contract for 
 the sale of land may be rescinded in favor 
 of the purchaser for fraud in the sale, al- 
 though he had an opportunity to examine 
 the land before the purchase, and did ex- 
 amine it, but did not go into details, and 
 confided for those in the false statements 
 of the person negotiating with him, and of 
 
 his agents. Smith t'. Babcock, 2 Wood. & 
 M. 246 ; Tuthill v. Babcock, 2 Wood. & 
 M. 299.] 
 
 (t) Brealey ». Collins, Tou. 317 ; inf. ch. 
 4, s. 5 ; ch. 6, s. 1. 
 
 («) Buxton V. Cooper, 3 Atk. 383 ; Par- 
 tridge V. TJsborne, 5 Bus. 195 ; Small v. 
 Attwood, You. 407 ; 6 CI. & Fin. 232 ; 
 Pike u. Vigers, 2 Dru. & Wal. 1. [But 
 there is a settled distinction in equity be- 
 tween enforcing specifically and rescinding 
 a contract. It does not follow that a con- 
 tract of sale is void in law merely because 
 equity will not decree a specific perform- 
 ance. 2 Kent (11th ed.), 487 ; Seymour 
 V. Delancey, 6 John. Ch. 222.] 
 
 (x) Abbott u. Swordcr, 4 De G. & Sm. 
 448. 
 
 (y) Ekins v. Tresham, 1 Lev. 102 ; Lys- 
 ney v. Selby, 2 Ld. Raym. 1118 ; 1 Salk. 
 211, as Risney v. Selby; Dobell v. Ste- 
 vens, 3 B. & C. 623 ; Small ». Attwood, You. 
 407 ; Fuller v. Wilson, 3 Q. B. 58, 68, 
 1009, post, ch. 5, s. 5 ; [Brown v. Castles, 
 11 Cush. 348, 350 ; Dimmock v. Hallett, L. 
 R. 2 Ch. Ap. 21 ; Boynton v. Hazleboom, 
 14 Allen, 107. So for falsely representing 
 that the boundaries of the lot sold were 
 certain lines, including land not parts of the 
 lot. Newell v. Horn, 45 N. H. 421 .] 
 
 [4] 
 
b MISEEPEESENTATIONS BY SELLERS OE STEANGEES. 
 
 upon the statement, but inquired what the estate let for.(2r) In 
 the latter case, however, a jury would probably give but trifling 
 damages. And (a) if the party to whom the representations were 
 made himself resorted to the proper means of verification before 
 he entered into the contract, it may appear that he relied upon 
 the result of his own investigation and inquiry, and not upon 
 the representations made to him by the other party.(l) A seller 
 is not bound to inform a purchaser that upon the tenant's com- 
 plaint the full amount of the rent has not been enforced. (6) 
 This, therefore, is an inquiry which a purchaser should always 
 make.(6^) 
 
 6. It seems that the same remedy will lie against a person not 
 interested in the property, for making a false representation to a 
 purchaser of value or rent, as might be resorted to in case such 
 person were owner of the estate ; (c) but the statement must be 
 made fraudulently, that is, with an intention to deceive ; whether 
 it be to favor the owner, or from an expectation of advantage to 
 the party himself, or from ill-will towards the other, or from mere 
 wantonness, appears to be immaterial. (rf) 
 
 (z) Lysney u. Selby, uM s«p. ; [Irving w. Mitchell, 1 Story 172, 192-194; Long- 
 Thomas, 18 Maine, 418 ; Mason v. Crosby, shore v. Jack, 30 Iowa, 298.] 
 1 Wood. & M. 352, "353.] (c) [Upton v. Vail, 6 John. 181 ; 2 
 
 (a) Clapham v. Shillito, 7 Beav. 146; Kent (11th ed.), 489, & note; Bean v. 
 
 Jennings v. Broughton, 17 Bear. 234; 5 Herrick, 3 Fairf. 262; Zabriskie v. Smith, 
 
 De G., M. & G. 126 ; [Am. ed. notes.] 3 Kernan, 322 ; Medbury v. "Watson, 6 Met. 
 
 (ftjAbbottw. S*order,4DeG.&Sm.448. 246;] Pasley v. Freeman, 3 T. Hep. 51 ; 
 
 (61) [False representations made by the Eyre v. Dunsford, 1 East, 318 ; Ex parte 
 seller to the buyer of a lot of land, upon Carr, 3 Ves. &Be. 108. See 6 Sco. 840. [If 
 the land, before the sale, and as an induce- a man tells what is false, to induce another 
 men| thereto, as to the quantity of wood to alter his situation, and the latter does 
 and hay that could be cut from it, are not alter his situation and thereby suffers dam- 
 actionable; nor his like representations as age, an action lies, th9ugh no fraud nor 
 to the possibility of acquiring adjoining injury was intended. Watson w. Paul- 
 land with buildings thereon, belonging to son, 15 Jur. Exch. 1111; TumbuU v, 
 a third person, although there were no Judsden, 2 Strobh. Eq. 14 ; Smith v. Mit- 
 huildings on the lot sold ; nor like represen- chell, 6 Geo. 458 ; Medbury v. Watson, 6 
 tations as to the number of acres in the lot, Met. 246.] , 
 if he pointed out its boundaries truly. {d) Haycraft v. Creasy, 2 East, 92 ; Tapp 
 Mooney v. Miller, 102 Mass. 217 ; Gordon v. Lee, 3 Bos. & Pul. 367 ; 6 Ves. 186; 13 
 u. Parmelee, 2 Allen, 212. See Daniel u. Ves. 134; 12 East, 634, n. ; Hutchinson u. 
 
 (1) [Warner v. Daniels, 1 Wood. & M. 90, 101, 102.] For what, in reference to a 
 horse previously to a sale by auction, amounts to representation only, and not to war- 
 ranty, see Hopkins v. Tanqueray, 15 C. B. 130. 
 
MISREPEESENTATIONS BY SELLERS OR STRANGERS. 
 
 This doctrine stands upon a principle of natural justice, long 
 recognized in the law, that fraud or deceit, accompanied with 
 damage, is a good cause of action, ((^) and this doctrine, is now 
 well settled both in English and American jurisprudence. (cP) 
 And it will be sufficient proof of fraud to show that the fact, 
 as represented, is false ; and that the person making the repre- 
 sentation had a knowledge of a fact contrary to it.(e) * And 
 it has been said, that it makes no difference whether A. falsely 
 asserted to be true that which he knew to be false, or merely 
 asserted that to be true of the truth or falsehood of which he 
 had no knowledge.(/) But if the representation amount to 
 an ^assurance only of a man's ability to answer an obligation, 
 it must, to be binding,' be in writing.(g-) Courts of equity bind 
 any person who is present at a transaction when money is paid 
 upon the faith of a representation which that person understands, 
 and which was made with his privity to fulfil the purpose for 
 which that representation was made.(/i) 
 
 Bell, 1 Taunt. 558 ; De Graves v. Smith, 
 2 Ca. 533 ; Foster v. Charles, 7 Bing. 106 ; 
 4 Moo. & P. 61 & 741 ; Corbett v. Brown, 
 
 2 Moo. & Mai. 108 ; 5 C. & P. 363 ; Free- 
 man V. Baker, 5 B. & Ad. 797 ; Evans 
 V. Collins, 5 Ad. & El. 804; Money o. 
 Jorden, 15 Beav. 372; 5 H. L. Cas. 185; 
 Bushbyu. Ellis, 17 Beav. 282; Piggott u. 
 Stratton, 1 .John. 341 ; 1 De G., F. & J. 33 ; 
 [Page V. Bent, 2 Met. 371, 374; Lord u. 
 Goddard, 13 How. (U. S.), 211 ; 2 Kent 
 (11th ed.), 489, & note; Bean a. Herrick, 
 
 3 Fairf. 262 ; Young v. Covell, 8 John. 23 ; 
 Eussell V. Clark, 7 Cranch, 69 ; Pulsford 
 V. Eichards, 17 Beav. 95.] 
 
 ((?') [Upton V. Vail, 6 John. 181 ; 2 
 Kent (11th ed.), 489, &note; Medbury v. 
 "Watson, 6 Met. 246.] 
 
 (d^) [2 Kent (Uth ed.), 489, & note; 
 Adams v. Paige, 7 Pick. 542 ; Addington 
 V. Allen, 11 Wend. 374; Gallagher v. 
 ■Brunei, 6 Cowen, 346 ; Medbury v. Wat- 
 son, 6 Met. 246 ; Benton v. Pratt, 2 Wend. 
 385 ; Livermore v. Hershell, 3 Pick. (2d 
 ed.), 38, note ; Patten v. Gumey, 17 Mass. 
 181.] 
 
 (e) Burrowes v. Lock, 10 Ves. 470; 
 Lake v. Brutton, 8 De G., M. & G. 449. 
 
 if) Evans v. Edmonds, 13 C. B. 777. 
 [1 Story Eq. Jur. § 193 ; Hazard v. Irwin, 
 18 Pick. 95; Hammatt v. Emerson, 27 
 Maine, 308, 326 ; Stone v. Denny, 4 Met. 
 151 ; Ainslie v. Medlycott, 9 Ves. 21 ; 
 Smith V. Mitchell, 6 Geo. 458 ; Mitchell v. 
 Zimmerman, 4 Texas, 75 ; Schneider v. 
 Heath, 3 Camp. 506 ; Taylor v. Ashton, 
 11 M. & W. 401 ; Evans v. Edmonds, 13 C. 
 B. 786 ; Milne v. Marwood, 15 C. B. 781. 
 Where a purchaser buys on faith of a false 
 representation by the seller, touching the 
 essence of the contract, the sale will be 
 set aside in equity, whether the misrepre- 
 sentation were the result of fraud or mis- 
 take. Doggett u. Emerson, 3 Story, 733. 
 See also Hough v. Eichardson, 3 Story, 
 691 ; Daniel w. Mitchell, 1 Story, 172 ; Ma- 
 son V. Crosby, 1 Wood. & M. 342, 353; 
 Smith V. Babcock, 2 Wood. & M. 246; 
 Milliken v. Thorndike, 103 Mass. 382, 
 385 ; Fisher v. Mellen, 103 Mass. 506.] 
 
 (g) 9 Geo. 4, c. 14, s. 6 ; Swann v. Phil- 
 lips, 3 Nev. & Per. 447 ; 8 Ad. & El. 457 ; 
 Devaux v. Steinkeller, 6 Bing. N. 0. 84 ; 
 [2 Kent (11th ed.), 489, n. (a).] 
 
 (h) Davies v. Davies, 6 Jur. N. S. 1320 ; 
 [Warner v. Daniels, 1 Wood. & M. 90; 
 
 [5] 
 
MISBEPEESENTATIONS BY PUECHASEES. 
 
 7. A purchaser is not liable to an action of deceit for misrep- 
 resenting the seller's chance of sale, or the probability of his 
 getting a better price for his commodity than the price which 
 such proposed buyer offers.(i) Nor is a purchaser bound to 
 acquaint the vendor with any latent advantage in the estate : for 
 instance, if a purchaser has discovered that there is a mine under 
 the estate, he is not bound to disclose that circumstance to the 
 vendor, although he knows the vendor is ignorant of it.(A;) But 
 a very little is sufficient to affect the application of this princi- 
 ple.(A;^) If, it has been said, a single word be dropped which 
 tends to mislead the vendor, that principle will not be allow-ed to 
 operate. (Z) And equity will not interfere in favor of a purchaser 
 who has misrepresented the estate to any person who had a 
 desire of purchasing it.(m) So if a purchaser conceal the fact 
 of the death of a person of which the seller is ignorant, and by 
 which the value of the property is increased, equity will set aside 
 the contract.(w) And even at law, if a man seeking to buy a 
 
 M'Meekiu v. Edmonds, 1 Hill Ch. 288, 
 293 ; Mason v. Crosby, 1 Wood. & M. 342 ; 
 2 Smith Lead. Cas. (5th Am. ed.) 619, 
 642 et. seq. ; Stronge v. Hawkes, 4 De G., 
 M. & G. (Am. ed.) 196, n. (1) & cases 
 cited.] 
 
 (i) Vernon v. Keys, 12 East, 632. 
 
 {k) 2 Bro. 0. C. 420 ; [Harris v. Tyson, 
 24 Penn. St. 347; Butler's Appeal, 26 Penn. 
 St. 63 ; 2 Kent (11th ed.) 490; Kintzing 
 V. McElrath, 5 Barr, 467; Smith v. Hughes, 
 Q. R. 6 Q. B. 604, per Cockburn C. J. ; 
 Livingston v. Peru Iron Co. 2 Paige, 390 ; 
 Smith V. Beatty, 2 Ired. Eq. 4.56 ; Kerr 
 Pr. and Mis. (Am. ed.), 97. But where a 
 chattel was sold, which, unknown to all 
 parties, contained in it valuable articles 
 not a part of its structure or substance, 
 they were held not to pass. Hathmacher 
 V. Harris, 38 Penn. St. 491.] 
 
 {B) [Where the vendee of land made 
 representations respecting the value of what 
 was- taken for the consideration, which 
 were false in material points, and which 
 influenced the vendor to sell, it was held 
 that they would' vitiate the sale, whether 
 the vendee knew them to be false or not. 
 
 Warner v. Daniels, I "Wood. & M. 90 ; 
 Shackleford v. Hadley, 1 A. K. Marsh. 
 500. So, if the false representations were 
 made by another person in the presence of 
 the vendee, and the vendee gained an ad- 
 vantage by them. Warner v. Daniels, 
 ubi supra; M'Meekin v. Edmonds, 1 Hill 
 Ch. 288, 293; Mason v. Crosby, 1 Wood. 
 & M. 342. Where a purchaser misrepre- 
 sented the quantity and quality of the land 
 he was about to purchase ; Tyler v. Black, 
 13 How. (U. S.) 231 ;Prescottu. Wright, 4 
 Gray, 461 ; and where the vendor misrep- 
 resented the quantity of land in a tract 
 sold, as twenty acres overflowed by a river, 
 when in fact more than one hundred acres 
 of it were so overflowed ; Boyce v. Gran- 
 by, 3 Peters (U. S.), 210; the court gave 
 relief.] 
 
 (l) Per Lord Eldon, Jac. 178. [See 
 Prescott V. Wright, 4 Gray, 461 ; 2 Kent 
 (11th ed.), 490; Livingston v. Peru Iron 
 Co. 2 Paige, 390.] 
 
 (m) Howard a. Hopkyns, 2 Atk. 371 ; 
 Young V. Clerk, Pre. C. 538. 
 
 (n) Turner v. Harvey, Jac. 169 ; Davies 
 u. Cooper, 5 My. & Cra. 270 ; Harris v. 
 
CONCEALMEilT OP DEFECTS IN TITLE. 9 
 
 life policy conceal his knowledge of the extreme danger in which 
 the life is, he cannot maintain any title to the policy.(o) 
 
 8. The same rules apply to incumbrances and defects in the 
 title to an estate as to defects in the estate itself.(o^) The vendor 
 is bound to deliver to the purchaser the instrument by which the 
 incumbrances were created, or on which the defects arise, or to 
 acquaint him with the facts, if they do not appear on the title- 
 deeds. If a seller knows and conceals a fact material to the title^ 
 relief cannot be refused to the purchaser.(p) And the same rule 
 extends to the attorney of the vendor of an estate who knows of 
 incumbrances on the estate. (g) 
 
 9. The same observation applies to the attorney or agent of 
 the * purchaser. The same attorney ought not to be employed 
 by both parties.(r) Fqr notice (s) to an agent, although one 
 concerned for both parties, is treated in equity as notice to the 
 purchaser himself; and, therefore, if the attorney know of any 
 equitable incumbrance, the purchaser will be bound by it, al- 
 though the estate lie in a register county, and no incumbrance 
 appear on the register.(^) In one case,(M) a purchaser lost an 
 estate, for which he gave nearly 8,000/., by employing the ven- 
 dor's attorney, who was privy to a fraudulent disposition of the 
 purchase money. 
 
 10. Of course a man's attorney is not at liberty to disclose 
 any defect which he has discovered to the party entitled to take 
 advantage of it, although that party is also his client, and the 
 owner was aware that the attorney was also concerned for the 
 other party. (a;) The seller's attorney should be cautious not to 
 obtain any undue advantage of the purchaser behind his solic- 
 itor's back ; such an advantage cannot be retained, and if fraud- 
 ulent, the court would rescind the contract. (2/) 
 
 11. But to return : the grantor of an annuity is not bound to 
 
 Kemble, 1 Sim. 128, reversed by L. C. and (s) Inf. ch. 24. 
 
 in D. P. (t) Inf. chs. 22, 23, 24. 
 
 (0) Jones V. Keene, 2 Moo. & Ro. 348. (u) Doe v. Martin, 4 T. Eep. 39 ; Hicks 
 
 (0') [See Ward u. Wimau, 17 Wend. v. Morant, 3 Yo. & Jer. 286; 2 Dow. & Cla. 
 
 193.] 414 ; Bowles v. Stewart, 1 Sch. & Lef. 
 
 (jo) Coop. 312. 227 ; Robinson v. Briggs, 1 Sm. & Gif. 
 
 Iq) 1 Ves. 96; 6 Ves. 193; Burrowesu. 188. 
 
 Lock, 10 Ves. 470 ; Bowles v. Stewart, 1 (x) Taylor v. Blacklow, 3 Bing. N. C. 
 
 Sch. & Lef. 227. 235. 
 
 (r) 6 Ves. 631, n.; 3 Jo. & Lat. 16. {y) Berry v. Armistead, 2 Ke. 221. 
 
 [6] 
 
10 CONCEALMENT OF DEFECTS IN TITLE. 
 
 lay open to the intended grantee all the circumstances of his 
 situation : he is only bound to give honest answers to questions 
 put to him by the intended grantee. If the grantee employ the 
 grantor's attorney to prepare the deeds, the mere preparation of 
 the deeds does not place him in a confidential relation towards 
 the grantee ; (z) but the principle of this decision has not always 
 been followed. 
 
 12. With the exception of a vendor, or his agent, suppressing 
 an incumbrance, or a defect in the title, a purchaser cannot ob- 
 tain relief against a vendor for any incumbrance, or defect in 
 the title, to which his covenants do not extend ; and therefore, if 
 a purchaser neglect to have the title investigated, or his counsel 
 overlook any defect in it, he may be without a remedy.(a) 
 
 13. But now a seller or mortgagor, or his solicitor or agent,is 
 made criminally responsible for concealing, with intent to de- 
 fraud, any instrument material to the title, or any incumbrance 
 from the purchaser, or falsifying any pedigree in order to induce 
 him to accept the title.(6) This constitutes a safeguard for pur- 
 chasers, 
 
 14. Where it is stated upon a sale, even by auction, that the 
 estate is in lease, and there is no misrepresentation, the purchaser 
 will not be entitled to any compensation, although there are cov- 
 enants in the lease contrary to the custom of the country ; be- 
 cause whoever buys * with notice of a lease is held conusant 
 of all its contents ; (c) but there must be no misrepresentation. 
 
 (z) Adamson v. Evitt, 2 Buss. & My. purchaser who does not inquire into his 
 
 66. vendor's title is affected with notice of 
 
 (a) Post, ch. 13 ; [Patten v. Stewart, what appears upon it, applies equally to 
 
 24 Ind. 332 ; Noonan v. Lee, 2 Black (U. a yearly tenant, as to the purchaser of a 
 
 S.), 499.] greater interest. Wilson v. Hart, L. E. 1 
 
 (6) 22 & 23 Vict. c. 35, s. 24 ; infra, ch. Ch. Ap. 463 ; see post, ch. 24, s. 1, pi. 45 ; 
 
 12, s. 4. [See Gen. Sts. Mass. c. 161, §§ But if at the time of a contract for the sale 
 
 59, 60.] of land, there is a lease outstanding, which 
 
 (c) Hall V. Smith, MS. ; 14 Ves. 426 ; is unknown to the vendee, the vendee is 
 
 Walter v. Maunde, 1 J. & W. 181 ; Bar- not hound, but may rescind the contract, 
 
 raud V. Archer, 2 Sim. 437 ; Pope v. Gar- the vendor not being in a situation to give 
 
 land, 4 Yo. & Col. 394 ; Strangways v. a perfect title. Tucker v. Wood, 12 John. 
 
 Bishop, 29 L. T. 120. [A lessee is bound 190; Jackson v. Wass, 11 John. 525; 
 
 to inquire into, and is fixed with notice of, Green v. Green, 9 Cowen, 46 ; Ellis v. 
 
 all covenants into which his lessor has en- Haskins, 14 John. 363 ; Fuller v. Hubbard, 
 
 tered in respect of the land. Peilden v. 6 Cowen, 13.] 
 Slater, L. E. 7 Eq. 523. The rule that a 
 
 [7] 
 
INVESTIGATION OF TITLE : TAKING POSSESSION. 11 
 
 This rule has been carried too far ; (d) but no person having 
 notice of any lease, or that the estate is in the occupation of 
 tenants, should sign a contract for purchase of the estate with- 
 out first seeing the leases, unless the vendor will stipulate that 
 they contain such covenants only as are justified by the custom 
 of the country. 
 
 15. If a purchaser suspect any person has a claim on the 
 estate which he has contracted to buy, he' should inquire the 
 fact of him before witnesses, who should take a note of what 
 passes,(e) at the same time stating" that he intends to purchase the 
 estate; and if the person of whom the inquiry is made has an 
 incumbrance on the estate, and deny it, equity would not permit 
 him to enforce his demand against the purcbaser.(/) 
 
 16. The purchaser should not take possession of the estate 
 until every objection to the title is removed, lest the act should 
 be deemed an acceptance of the title.(g') If a purchaser take 
 possession of and enjoy the property, it is the duty of the court 
 to make every reasonable presumption in favor of the validity of 
 the contract.(A) Where a purchaser, after delivery of the ab- 
 stract, which disclosed a reservation of a right of sporting not 
 noticed in the peurticulars, upon his application, was let into 
 possession, and paid the greater part of the purchase money, 
 without objection, and apologized for not sending the draft of 
 the conveyance, his conduct was considered as a waiver of the 
 objection ; and although a clerk of the seller's solicitor wrote in 
 answer to the purchaser's applieations for compensation that a 
 
 ((f) See Martin ^. Cotter, 3 Jo. & Lat. Brackett, 9 N. H. 336, 351 ; Wilde J. in 
 
 496; Stewart v. Lord Conyngham, I Ir. Saunders v. Robinson, 7 Met. 315 ; Bright 
 
 Ch. E. 545 ; Darlington v. Hamilton, 1 v. Boyd, 1 Story, 478, 492', 493 ; Allen 
 
 Kay, 550 ; Grosvenor v. Green, 28 L. J. v. Winston, 1 Hand. 65 ; 1 Greenl. Cruise, 
 
 N. S. 173 ; inf. ch. 23, ». 2. 204, 205, tit. xv. Mortgage, ch. v. §§ 25, 
 
 (e) Doe w. Perkins, 3 T. Eep. 749 ; Bur- 26 ; Re Primrose, 3 Jur. N. S. 899 ; Pear- 
 rough V. Martin, 2 Ca. 112. son v. Morgan, 2 Bro. C. C. 388 ; Bug- 
 
 (/) Ibbottson jr. Ehodes, 2 Ver. 554; den v. Bignold, 2 Y. & C. C. C. 390.] 
 
 Amy's case, 2 Ch. C. 128 ; Hickson v. Ayl- (y) 3 P. Wms. 193 ; Calcraft v. Roebuck, 
 
 ward, 3 Mol. 1 ; [1 Story Eq. Jur. §§ 384, 1 Ves. jr. 226 ; 12 Ves. 27 ; Vancouver v. 
 
 385; Piatt ». Squire, 12 Met. 494 ; Pay v. Bliss, 11 Ves. 464 ; Ex parte Sidebotham, 
 
 Valentine, 12 Pick. 40; Dewey v. Field, 4 1 Mon. & Ayr. 655 ; 2 Mon. & Ayr. 146, 
 
 Met. 381 ; Heane v. Eogers, 9 B. & C. 586 ; post, ch. 9. [See Richmond u. Gray, 3 
 
 Lee V. Porter, 5 John. Ch. 268 ; Storrs v. Allen, 25.] 
 
 Barker, 6 John. Ch. 166 ; Wendell v. Van {h} Port of London Ass. Co. Case, 5 De 
 
 Rensselaer, 1 John. Ch. 344; Marston v. G., M. & G. 481. 
 
12 INVESTIGATION OF TITLE. 
 
 reasonable compensation would be allowed, yet this was not 
 deemed binding, as he had no authority to make such an offer.(i) 
 
 17. A purchaser may, with the concurrence of the vendor, 
 safely take possession of the estate at the time the contract is 
 entered into, as he cannot be held to have waived objections, of 
 which he was not aware ; and if the purchase cannot be com- 
 pleted on account of *objections to the title, he will not be bound 
 to pay any rent for 'the estate, even if the occupation of it has 
 been beneficial to him.(A;) 
 
 18. If a purchaser intends to stipulate for a vacant possession, 
 he should carefully do so, for where upon a sale of an orchard, 
 " now in the occupation of L. P." the purchaser was to complete 
 on a day named, " when he shall have possession," it was held 
 that the purchaser was not entitled to the occupation of the 
 orchard, or in other words he must take subject to L. P.'s occu- 
 pation ; yet the purchaser no doubt meant to stipulate for an 
 actual delivery of a vacant possession. (Z) The word " posses- 
 sion," it was said, is a flexible one, and when the property is 
 stated to be' in the occupation of a tenant, subject to whose 
 tenancy a purchaser buys, the nature of the contract shows that 
 possession means possession as landlord, but it does not appear 
 what interest L. P. had, and he may have been a person holding 
 over adversely, and whom it might be found difficult to eject. 
 
 19. A purchaser of an equitable right should inquire of the 
 trustee, in whom the property is vested, whether it is liable to 
 any incumbrance. If the trustee make a false representation, 
 equity would compel him to make good the loss sustained by the 
 purchaser, in consequence of the fraudulent statement.(m) When 
 the contract is completed, the purchaser should give notice of the 
 sale to the trustee,(m^) which would make him liable in equity 
 should he convey the legal estate to any subsequent purchaser ; 
 
 (t) Barnell v. Brown, 1 J.:& W. 168 ; {!) Lake v. Dean, 28 Beav. 607. 
 
 Southby V. Hutt, 2 My. & Cra. 207 ; Spun- (m) Burrowes v. Lock, 10 Ves. 570. 
 
 ner o. Walsh, 10 Ir. Eq. R. 597 ; Vig- (ml) [See Bridge v. Beadon, L. E. 3 
 
 nolles V. Bowen, 12 Ir. Eq. R. 194, et qu. ; Eq. 664 ; and thougli not absolutely neces- 
 
 "Vaughan a. Magill, Id. 200, 207 ; Dawes sary, it is desirable that in every case the 
 
 V. Betts, 12 Jur. 412, 709. notice should be formal. Lloyd v. Banks, 
 
 {k) Hearne v. Tomlin, Peak. Ca. 192 ; L. E. 3 Ch. Ap. 488, overruling in effect 
 
 Kirtland v. Pounsett, 2 Taunt. 145 ; Stevens Re Brown's Trusts, L. E. 5 Eq. 88.] 
 V, Guppy, 3 Rus. 171 ; inf. see Dowson v. 
 Solomon, 1 Drew. & Sm. 1. 
 
 [8] 
 
INVESTIGATION OF TITLE. 13 
 
 and in the cases of choses in action, for example, it would give 
 the purchaser a priority over any former purchaser or incum- 
 brancer, who had neglected the same precaution. (w.) 
 
 20. It is now necessary that a purchaser should see that the 
 succession duty has been paid where the interest purchased is 
 liable to that duty ; (o) and indeed he should stipulate by his 
 contract that the payment is to be made by the seller.(^) 
 
 21. In many cases it may be advisable to have the title inves- 
 tigated previously to a sale. If there should be any defect in 
 the title which cannot be cured, it would be known only to the 
 agents and counsel of the vendor. This has lately been provided 
 for in sales by the court of chancery. 
 
 22. In considering throughout this division the distinction be- 
 tween law arid equity, it should now be kept in view that equita- 
 ble defences may, as we shall hereafter see to a limited extent, be 
 admitted at law.(pi) 
 
 {n) Inf. ch. 10, s. I ; ch. 23, a. 1. {p) Cooper ». Trewby, 28 Beav. 194. 
 
 (o) 16 & 17 Vict. c. 51, inf. ch. 12, s. 2. (p^) [See 2 Dan. Ch. Pr. (4th Am. ed.), 
 
 1625.1 
 
u 
 
 OF PUFFING. 
 
 [CH. I. § I. 
 
 •CHAPTER I. 
 
 OP' SALES BY AUCTION AND PRIVATE CONTRACT. 
 
 ^ « 
 
 SECTION I. 
 
 OP PUFFING. 
 
 1. Sale without reserve; puffing avoids it: 
 
 right to bid once : private reservation. 
 
 2. Several pufiers, or one as a screw, fatal. 
 
 3. But one bidder may be appointed — with- 
 
 out notice. 
 
 4. Sub-purchaser. 
 
 5. Purchaser not to deter bidders. 
 
 Sale damaged by supposed puffers not 
 
 enforced. 
 Puffer bidding for wrong estate not bound 
 
 in equity. 
 Owner buying at sale without reserve. 
 Sale by lottery illegal. 
 Sales by auction by judges or chief clerks. 
 
 1. Where it is stated that the estate is to be sold without re- 
 serve, the sale will be void against a purchaser, if any person be 
 employed as a puffer, and actually bid at the sale. (a) And the 
 
 (a) Meadows v. Tanner, 5 Mad. 34; 
 Thornett v. Haines, 15 M. & W. 367; 
 Cutts V. Salmon, 16 Jur. 623 ; [Lord Cran- 
 worth. In Mortimer v. Bell, L. E. 1 Ch. 
 Ap. 13 ; Dimmock v. Hallett, L. E. 2 Ch. 
 Ap. 26 ; Story Sales (4th ed.), § 482, & 
 notes ; Green u. Baverstocke, 14 C. B. N. 
 S. 204. But where the auctioneer stated 
 that the sale was without reserve, and at 
 the same time stated that the parties in- 
 terested in the estate had liberty to bid. 
 Turner L. J. said, " if a purchaser knows 
 that the parties interested have liberty to 
 bid, he cannot be entitled to be discharged 
 on the ground that they have bid against 
 him." Dimmock v. Hallett, L. E. 2 Ch. Ap. 
 27. See Towle v. Leavitt, 23 N. H. 360. 
 At law, in the absence of a stipulation 
 expressly reserving the vendor's right to 
 bid, the employment of a single puffer 
 would of itself vitiate the sale, even though 
 it was not advertised as without reserve. 
 See the remarks of Lord Cranworth in 
 
 [9] 
 
 Mortimers. Bell, L. E. 1 Ch. Ap. 13 ; War- 
 low V. Han-ison, 6 Jur. N. S. 66 ; Main- 
 price V. Westley, 11 Jur. N. S. 975 ; Green 
 V. Baverstocke, 10 Jur. N. S. 1047. Ex- 
 ceptions have been made in cases where it 
 did not appear that the purchaser was in- 
 duced by the puffing to bid more than the 
 value of the property, or more than he had 
 previously determined to bid ; Tomlinson 
 V. Savage, 6 Ired. Eq. 430 ; and so where 
 it appeared thatthere were real as well as 
 sham bidders, and the last bid before the 
 purchaser's was a real one, and the judg- 
 ment of the real bidders and the purchaser 
 had not been misled by the sham bidders. 
 Veazie v. Williams, 3 Story, 611. The 
 rules against puffing apply as well to sales 
 under an order of court as to ordinary 
 sales ; Dimmock v. Hallett, L. E. 2 Ch. 
 Ap. 21, 29 ; and to sheriff's sales, Donald- 
 son V. McEoy, 1 Browne, 346 ; Lee v. Lee, 
 19 Missou. 240.] 
 
CH. I. § I.] OF PUFFING. 15 
 
 reservation of\ a right for the auctioneer to bid once, excludes 
 the right to employ a puffer ; (b) nor can a reserve be made pri- 
 vately in favor of a third person, if the estate do not fetch more 
 than a given sum, for that is in effect to prevent a sale at a price 
 below the sum fixed upon.(c) Thus far is clear, but great au- 
 thorities have differed upon the right of a seller to privately ap- 
 point even one person to bid, although within a fixed limit, and 
 only to prevent a sale at an undervalue. (1) Clearly the same 
 rule ought to prevail at- law and in equity.(c^) Yet whilst the 
 seller's right is firmly established to this extent in equity,(rf) at 
 law the rule has been laid down otherwise, by Lord Mansfield 
 in Bexwell v. Christie,(e) by Lord Kenyon in * Howard v. Cas- 
 tle, (/) by Lord Tenterden at nisi prius in Wheeler v. Col- 
 lier,(g') and their view has been adopted by other judges.(A) 
 It would require a decision of the House of Lords to overrule 
 the cases in equity, and it is highly desirable that the courts 
 of law should adopt the equitable rule, restricted as it now 
 
 (6) Rex V. Marsh, 3 To. & Jer. 331 ; land shall state whether such land will be 
 
 Crowder v. Austin, 3 Bing. 368; U. Moo. sold without reserve, or subject to a re- 
 
 283. served price, or whether a right to bid is 
 
 (c) Robinson v. "Wall, 10 Beav. 61; 2 reserved. 30 &31 Vic. c. 48, §5.] 
 
 Phil. 372 ; in re Ashe, 4 Ir. Ch. R. 591. {d) Connolly v. Parsons, 3 Ves. 625, n. 
 
 (ci) [By the 30 & 31 Vic. c. 48, the rule in which no judgment was given, MS. ; 
 
 which must for the future obtain in equity, Bramley v. Alt, 3 Ves. 620 ; Smith v. 
 
 has been conformed to that which was Clarke, 12 Ves. 477 ; Thornett v. Haines, 
 
 already well established at law. 1 Dart 15 M. & W. 367 ; Woodward v. Miller, 
 
 V. & P. (4th Eng. ed.) 181 ; Kerr Fr. 2 Col. 279; Twining v. Morrice, 2 Bro. C. 
 
 &Mis. (Am. ed), 226. This statute has C. 331. 
 
 made it unlawful, in every case where a (e) Cowp. 395. 
 
 sale is stated to be without reserve, for (/) 6 T. Rep. 642, m. ; 3 T. R. 93, 
 
 the vendor to employ a person to bid at 95. 
 
 the sale, or for the auctioneer to take {g) I Ca. 123. 
 
 knowingly any bidding from such per- (A) Rex w. Marsh, 3 Yo. & Jer. 331 
 
 son ; and has provided that the particu- (2) ; Crowder v. Austin, 3 Bing. 368 ; 
 
 lars or conditions of sale by auction of any Thornett v. Haines, 15 M. & W. 367. 
 
 (1) In Fitzgerald w. Forster, 31 July 1813, the vice chancellor seemed rather of 
 opinion that the appointment of one puffer was in no case bad. [See Reynolds v. De 
 Chaums, 24 Texas, 174; 2 Kent (11th ed.), 539; Steele v. EUmaker, 11 Serg. & R. 
 86 ; Phippen v. Stickney, 3 Met. 387 ; Chitty Cont. (10th Am. ed.) 319, 320. In Lee 
 V. Lee, 19 Missou. 420, it was held not to be a fraud for a debtor to employ some one 
 to buy in his property at a sheriff's sale, merely to prevent its sacrifice.] 
 
 (2) By the conditions, power was reserved to A. to make one bidding, but no more ; 
 and if the highest bidder, the sale to be void; a puffer was thus by implication pro- 
 hibited. The rule was misstated. 
 
 [10] 
 
16 
 
 OF PUFFING. 
 
 [CH. 
 
 is.(/j^) In a ca.se{i) at law, upon the sale of a horse by auction, 
 without a warranty, it was doubted whether a previous private 
 warranty to a person who became an unsuccessful bidder, would 
 not avoid the sale to a third party ; for it was like puffing, and in 
 a sale by auction all have a right to suppose they are bidding 
 upon equal terms. 
 
 2. And if several puifers are employed, the sale is clearly 
 bad,(A) or if one person is employed to screw up the price.(/) 
 
 3. Where public notice has been given, the contract will be 
 binding on the purchaser, although there was no contest between 
 real bidders ; but only the purchaser and the person employed to 
 bid, bid against each other.(?n) And it has been considered to 
 be no fraud for a vendor, being also the auctioneer, when a party 
 comes to him, and makes an inquiry whether the property will 
 be sold for a given sum, to say that it probably would, or [and] 
 afterwards to fix the reserve bidding at that sum.(w) 
 
 (Ai) [In the recent case of Mortimer v. 
 Bell, L. R. 1 Ch. Ap. 10 (where, however, 
 it was not necessary to decide the point). 
 Lord Cranworth, while admitting that the 
 current of authorities had been so strong, 
 in favor of allowing a single bidder, that 
 he might have found it difficult to go 
 against them, expressed a doubt whether 
 there was any decision of the court of ap- 
 peals absolutely binding him to decide that 
 the rule which was established at law did 
 not also hold good in equity.] 
 
 (j) I Hopkins v. Tanqueray, 15 C. B. 130, 
 sed qu. 
 
 (k) Smith V. Clarke, 12 Ves. 483 ; 8 T. 
 Kep. 93, 95 ; Wheeler u. Collier, 1 Moo. 
 & Mai. 123. 
 
 {1} 12 Ves. 483. [In Towle v. Leavitt, 
 23 N. H. 360, it was held that by-bidding, 
 or secret pufBng at auction sales is against 
 public policy and illegal, and will render 
 the sale voidable as against the owner of 
 the property. See also 2 Kent (llth ed.), 
 537-539 ; 1 Story Eq. Jar. § 293; Veazie 
 V. "Williams, 3 Story C. C. 611; S. C. 8 
 How. (U. S.) 134; Moncrieff v. Golds- 
 borough, 4 Har. & McH. 282 ; Donaldson 
 V. McRoy, 1 Browne, 346 ; Baham u. 
 Bache, 13 La., 287; Latham u. Morrow, 
 
 6 B. Mon. 630 ; National Tire Ins. Co. v. 
 Loomis, 11 Paige, 431 ; Staines v. Shore, 
 16 Penn. St. 200; Pennock's Appeal, 14 
 Penn. St. 446 ; Trust v. Delaplaine, 3 E. 
 D. Smith (N. Y.), 219; McDowell v. 
 Simms, 6 Ired. Eq. 278 ; Gilliott v. Gil- 
 liott, L. E. 9 Eq. 60 ; Woods v. Hall, 1 
 Dev. 411 ; Wolfe v. Luyster, 1 Hall, 146. 
 The vendor should be cautious not to 
 make any secret arrangement by which 
 one person wishing to purchase shall have 
 an advantage over another ; such a con- 
 certing with a purchaser to make his bid 
 by a private signal, not understood by 
 other bidders. Conover v. Walling, 2 Mc- 
 Carter (N. J.), 173. 
 
 Where a sale is vitiated by the employ- 
 ment of a puffer, it is said to be the duty 
 of the purchaser to restore the property 
 purchased as soon as the fraud is discov- 
 ered ; Staines u. Shore, 16 Penn. St. 200 ; 
 McDowell V. Simms, 6 Ired. Eq. 278; 
 Tomlinson v. Savage, 6 Ired. Eq. 430; 
 otherwise he confirms the sale. Backen- 
 toss V. Stabler, 33 Penn. St. 251 ; Veazie v. 
 Williams, 3 Story, 611.] 
 
 (m) Oldfield v. Round, 5 Ves. 508. 
 
 (n) Flint v. Woodin, 9 Hare, 618; but 
 gu, the purchaser did not know at the time 
 
CH. I. § I.J 
 
 OF PUFFING. 
 
 17 
 
 4. Although an original purchaser will not be bound where a 
 fraud has been practised in the biddings, yet if he transfer his 
 contract, a strong case of fraud must be made out against the 
 original purchaser, to enable the court to give the benefit of it to 
 his assignee.(o) 
 
 5. As on the one hand a seller cannot appoint puffers to delude 
 the purchaser, so on the other, if a purchaser by his conduct deter 
 other persons from bidding, the sale will not be binding. Thus, 
 where upon a sale by auction of a barge, a bidder addressed the 
 company present, saying he had a claim against the late owner, 
 by whom he said he had been ill used, whereupon no one offered 
 to bid against him ; but the auctioneer refusing to knock down 
 the property to a single bidding, a friend of the bidder's bade a 
 guinea more, and the first bidder then made a second and higher 
 bidding, amounting, ho\Yever, to only one fourth of the prime 
 cost of the barge, it was held ' that there was no legal sale.(p) 
 But one person may legally bind himself not to bid against 
 another, (g-) 
 
 that the auctioneer was the owner. As to 
 communicating the reserved price, see Else 
 V. Barnard, 28 Beav. 228. 
 
 (o) See 12 Ves.484. 
 
 (p) Fuller V. Abrahams, 3 Bro. & Bing. 
 116; 6 Moo. 316. 
 
 (q) Galton u. Emuss, 1 Col. 243. [And 
 such an agreement has been held valid, 
 where the sale was made by order of the 
 court. Re Carew's Estate, 4 Jur. N. S. 
 1290 ; 26 Bear. 197. But ^the law gen- 
 erally discountenances combinations or 
 agreements on the part of purchasers, the 
 object and effect of which are to chill 
 a sale at auction and stifle competition, 
 by denying to any party to such agree- 
 ment or combination any benefit from 
 the sale. Hamilton v. Hamilton, 2 Rich. 
 Eq. 355 ; Woods v. Hudson, 5 Munf. 423 ; 
 Hudson V. Hudson^ 5 Munf. 180; Troup 
 V. Wood, 4 John. Ch. 228, 254 ; Meech v. 
 Bennett, Hill & Eenio, 192 ; Chitty Contr. 
 - (10th Am. ed.) 320, note (n) ; 1 Story Eq. 
 Jur. § 293 ; Story Sales (4th ed.), § 484; 
 Phippen v. Stickney, 3 Met. 387, 388; 
 Jones V. Caswell, 3 John. Cas. 29 ; Doolin 
 VOL. I. 2 
 
 V. Ward, 6 John. 194; Wilbur u. How, 
 8 John. 444; Thompson v. Davies, 13 
 John. 112 ; Gardiner v. Morse, 25 Maine, 
 140 ; Pike v. Balch, 38 Maine, 302 ; Hayues 
 fc. Crutchfield, 7 Ala. 189; Slingluffu. 
 Eckel, 24 Penn. St. 472 ; Newman v. 
 Meek, 1 Freem. Ch. 441 ; Johnston v. La 
 Motte, 6 Rich. Eq. 347 ; Hook v. Turner, 
 22 Miss. (1 Jones) 333 ; Wooton v. Hinkle, 
 20 Missou. 290 ; Loyd v. Malone, 23 111. 43 ; 
 Trust V. Delaplaine, 3 E. D. Smith, 219; 
 Dudley v. Little, 2 Ham. (Ohio) 505 ; 
 Piatt V. Oliver, 1 McLean, 295 ; Guliek 
 V. Ward, 5 Halst. 87 ; Dick u. Lindsay, 2 
 Grant, 431 ; Fenneru. Tucker, 6 R. I. 551 ; 
 Martin v. Ranlett, 5 Rich. 541 ; Cocks v. 
 Izard, 7 Wallace, 559. The court of 
 North Carolina, in Smith v. Greenlee, 
 2 Dev. 116, while sustaining the gen- 
 eral doctrine that a sale may be avoid- 
 ed when made to one in behalf of an 
 association of bidders designed to stifle 
 competition, yet concede that this rule 
 would not apply to an association of bid- 
 ders shown to be formed for honest and 
 jnst purposes, as in the case of a union of 
 [11] 
 
18 OF PUFFING. _ [CH. I. § I. 
 
 6. And where the seller's known agent bid at the sale for the 
 purchaser, and was considered a puffer, which deterred other bid- 
 ders, a specific performance was refused ; (r) so even where a real 
 purchaser was considered as a puffer, and the actual puffer neg- 
 lected to bid the appointed sum, the court refused to interfere. (s) 
 
 7. These instances are in favor of the seller. Where a puffer 
 by mistake bid for the wrong estate, which was knocked down 
 to him, equity left the seller to his remedy at law.(<) But if a 
 puffer allege that he is the vendor's agent, and fail in proof, he 
 will be compelled to complete the purchase.(M) 
 
 8. Where, in previous advertisements of horses, the sale was 
 stated to be without reserve, and one of the printed conditions 
 " was, any lot ordered for this sale, and sold by private contract 
 by the owner, or advertised vpithout reserve and bought by the 
 owner (1) to be liable to the usual commission of five per cent.," 
 and the conditions stipulated as usual that the highest bidder 
 should be the buyer : after a bond fide bid by a third person, the 
 owner advanced on the bidding and the lot was knocked down 
 to him. The action was against the auctioneer, and it was held 
 that the bidder could not claim the lot as sold to him, and the 
 
 several persons formed on account of the honest and reasonable purpose. See SmuU 
 
 magnitude of the sale, or where the quan- u. Jones, 1 Watts & S. 128 ; SmuU v. Jones, 
 
 tity offered to a single bidder exceeded the 6 Watts & S. 122 ; Wolfe v. Luyster, 1 HaU, 
 
 amount which any one individual might 146; Jenkins v. Hogg, 2 Const. S. Car. 
 
 wish to purchase on his own account. In 821 ; Gardiner v. Morse, 25 Maine, 140 ; 
 
 Phippen v. Stlckney, 3 Met. 387, 388, which Switzer v. Sklles, 3 Oilman, h29 ; McMiun 
 
 was decided on similar principles, it was u.Phipps, 3 Sneed(Tenn.), 196; Jenkinsu. 
 
 held that an agreement by two or more per- Frink, 30 Cal. 586; Allen v. Stephanes, 
 
 sons, that one of them only will bid at an 18 Texas, 658 ; Dick v. Cooper, 24 Eenn. 
 
 auction of property, and will become the gt. 217 ! Kearney v. Taylor, 15 How. (U. 
 
 purchaser for the benefit of them all, is il- S.) 519-521 ; Slater v. Maxwell, 6 Wal- 
 
 legal, if it be made for the purpose of pre- lace, 268.] 
 
 venting competition at the biddings and (r) Twining v. Morris, 2 Bro. C. C. 
 
 depressing the price of the property below 326 ; post, ch. 5, b. 3. - 
 the fair market value ; but that such an (s) Mason v. Armitage, 13 Ves. 25 ; post, 
 
 agreement is not illegal, if the purpose of ch. 4, s. 3. 
 
 it be to enable each of the parties to become (<) Malins u. Freeman, 2 Kee. 25; 
 
 a purchaser, when he desires a part of the Swaisland v. Dearsley, 29 Beav. 430. 
 property offered for sale, and not the whole (u) Bennett v. Smith, 16 Jur. 421. 
 lot ; or if the agreement be for any other 
 
 (1) This shows that it was the practice for the owner to bid, notwithstanding the 
 sale was without reserve ; the commission was charged as a check. See 1 Ell. & El). 
 318. 
 
CH. I, § I.] OF PUFFING. 10 
 
 court said they were not called upon to say whether there was 
 any or what remedy on the conditions of sale against the vendor 
 who violated the condition that the article should be bond fide 
 sold without reserve, but they were clear that the bidder had no 
 remedy against the auctioneer whose authority to accept the offer 
 of the bidder bad been determined by the vendor before the ham- 
 mer had been knocked down.(a;) In the exchequer chamber three 
 judges held that the purchaser was entitled to recover damages, 
 for they thought that the highest bond fide bidder at an auction 
 may sue the auctioneer as upon a contract that the sale shall be 
 without reserve. And that the contract is broken upon a bid 
 being made by" or on behalf of the owner, whether it be during 
 the time when the property is under the hammer, or it be the 
 last bid on which the property is knocked down. They did not 
 doubt that the owner may at any time before the contract is 
 legally complete revoke the auctioneer's authority. As to the 
 conditions, * the owner could not be the buyer ; the auctioneer 
 ought not to have taken his bid, but to have refused it, stating 
 as his reason that the sale was without reserve. Inclining to 
 differ from the queen's bench, they rather thought the bid of 
 the owner was not a revocation of the auctioneer's authority. (j/) 
 The other two judges agreed, but grounded their judgment on 
 the evidence that the auctioneer had not authority to sell except 
 without reserve, and there ought to be a count added by way of 
 amendment stating an undertaking by the auctioneer that he 
 had authority to sell without reserve, and a breach of that un- 
 dertaking. (1) 
 
 9. Lands, &c., cannot legally be sold by lottery ; and if a sale 
 be made of any property for the purpose, to the seller's knowl- 
 edge, of being sold by way of lottery, the transaction would be 
 illegal, and no action could be brought to recover the purchase: 
 money ; and if the purchase money were secured by deed of 
 covenant, it could not be recovered.(j2) 
 
 10. The 15 & 16 Vict. c. 87, s. 42, provided that the masters 
 or their chief clerks, and every other person appointed by the 
 
 (x) Warlow v. Harrison, 28 L. J. N. S. (y) Warlow v. Harrison, 29 L. J. N. S. 
 18 Q. B ; 1 Ell. & Ell. 295, 409. 14 Q. B. ; 1 Ell. & Ell. 309. 
 
 (z) Bridges v. Fisher, 2 Com. L. R. 928. 
 
 (1) See the judgment, 1 Ell. & Ell. 318. 
 
 [12] 
 
20 
 
 OF PUFFING. 
 
 [CH. I. § n. 
 
 master, may sell by auction under any decree or order of the 
 court, without license, and not subject to duty. And now the 
 powers possessed formerly by the masters may be exercised by 
 the master of the rolls and vice chancellors respectively ; (a) so 
 that it would seem that their chief clerks, if employed to sell, 
 would not be liable to duty.(l) The sales, however, are now 
 made by auctioneers appointed by the court in the common way. 
 
 SECTION n. 
 
 OF THE PARTICULARS AND CONDITIONS OP SALE. 
 
 1. Bidding may be countermanded. 
 
 2. Condition against it. 
 
 3. Sale under act of parliament. 
 
 4. Conditions favorably construed. 
 
 5. Liability of purchaser of part to annuity 
 
 on the whole. 
 
 6. Obscure conditions. 
 
 7. "In this particular." 
 
 8. Cannot be contradicted at sale. 
 
 11. Purchaser bound by previous knowledge. 
 
 12. Good title implied ; all interest included. 
 
 13. Condition to take a defective title. 
 
 14. Misdescription amounting to misrepre- 
 
 sentation. 
 
 15. Instances where purchaser not bound. 
 *16. Condition to accept bond. 
 
 17. Condition to avoid sale if title defective. 
 
 18. Condition to deliver objections within a 
 
 time fixed. 
 
 19. Condition that recitals should be evi- 
 
 dence. 
 
 20. Effect of condition to rescind sale. 
 
 21. Description of estate : free public-house., 
 
 22. Description. — House in Regency Square, 
 
 Brighton. 
 24.^ 
 
 25. S" Right of way; Plans. 
 26.) 
 25. Part not to be found. 
 
 26. ) 
 
 cQ f Easements. — Well. — Drains. 
 
 27. Intended improvements. 
 
 28. Lights. 
 
 29. Wall. 
 
 30. Reading of lease at auction. 
 
 31. Buildings removed. 
 
 32. Evidence of identity. 
 
 33. Covenants against trades. 
 
 35. Covenants in lease. — Public-house. 
 
 36. Fen land ; taxes. 
 
 38. Waterloo Bridge annuity: power to re- 
 
 ' deem not stated. 
 
 39. Power of purchase not stated. 
 
 40. Tenant holding adversely. 
 
 41. Wood. 
 
 42. Clear yearly rent. 
 
 43. Condition that misdescription not to avoid 
 
 sale, does not extend to fraudulent 
 description. — Borough town. 
 
 44. Misstatement of rental. 
 
 45. "Ground rent." 
 
 46. "Brick built." 
 
 47. Mistake in the number. — Part sold not 
 
 in lease. 
 
 48. Business house. 
 
 49. Building ground. 
 
 50. Title resting on easements over other 
 
 lands. 
 
 (a) 15 & 16 "Vict c. 80, s. 36. 
 
 (1) Throughout this work, the reader should bear in mind that the office of master 
 is abolished, and the antliority of the, master of the rolls and the vice chancellors, with 
 their chief clerks, substituted for the masters with the addition of authority in cham- 
 bers, 15 & 16 Vict. c. fl37] 80. 
 
 [1.3] 
 
CH. I. § II.] 
 
 COUNTERMAND OF BIDDING. 
 
 21 
 
 51. Where value cannot be estimated : con- 
 tingency. 
 
 53. Effect generally of error not fraudulent, 
 
 upon the condition. 
 
 54. Timber. 
 
 55. Timber-like trees to be paid for. 
 
 56. Timber on copyholds which cannot be 
 
 cut. 
 
 57. Purchase of term sans waste. 
 
 58. Fixtures. 
 
 59. Deeds not to be produced. 
 
 60. Purchaser of largest lot to have the 
 
 deeds. 
 
 61. Searches, &c. 
 
 62. Attested copies. 
 
 63. Condition depriving purchaser of a cove- 
 
 nant to produce. 
 64.1 
 
 65. I Condition that cestuis que trust should 
 
 66. ( not concur. — Misstatement. 
 
 67. J 
 
 Landlord's title. — Renewable leaseholds 
 — compensation. 
 
 Sale by assignees : bankrupt not to con- 
 cur. — Misstatement of title. 
 
 
 Liability of purchaser of leaseholds. 
 
 ) Where purchaser not bound to covenant 
 
 ) not to build. 
 
 Conveyance. — Surrenders. — Fines and 
 
 fees. 
 Forfeiture of deposit, and right to resell. 
 Condition to rescind. 
 Stipulated damages. 
 Forfeiture of deposit under condition. — 
 
 Where there is no such condition, qu. 
 Resale if bankruptcy. — Seller's lien. 
 Time allowed to purchaser. 
 Benefit of usual conditions. — Title. 
 Agreements to be signed. 
 
 ! Auctioneer may bind purchaser and 
 seller. 
 
 The particulars and conditions of sale (a) next claim our at- 
 tention. We may premise that whatever is done by the auc- 
 tioneer will be held to be done by the principal.(6) 
 
 1. A bidding at a sale by auction may be countermanded at 
 any time before the lot is actually knocked down.(c) The 
 retraction *must be made loud enough to be heard by the 
 auctioneer. (rf) On the other hand, the owner may, as we 
 have seen, stop the sale before it is complete, but he does 
 so at his peril; and if the auctioneer has contracted any lia- 
 bility in consequence of his employment and the subsequent 
 revocation or conduct of the owner, he is entitled to be indem- 
 nitied. 
 
 2. A condition that no person shall retract his bidding, was 
 originally suggested to me by the case of Payne v. Cave, and it 
 has now become a common condition. But I always thought 
 it one that could not be enforced. In Jones v. Nanney,(e) Mr. 
 Baron Wood suggested the difficulties : that to hold that an 
 action would lie on an implied undertaking not to retract, would 
 
 (a) Form of them, App. Purch. No. 1. 
 
 (6) Bardell v. Spinks, 2 C. & K. 646. 
 
 (c) Payne v. Cave, 3 T. R. 148 ; Eout- 
 ledge V. Grant, 4 Bing. 653 ; 1 Mo. & Pa. 
 717 ; as to goods, see Phillips v. BistoUi, 
 
 3 Dow & Ey. 822 ; [and see Downing v. 
 Brown, Hardin, 181.] 
 
 {d) Jones v; Nanney, M'Clel. 39 ; 13 
 PrL 102, 103. 
 
 (e) 13 Pri. 99. 
 
 [14] 
 
22 VERBAL CONTRADICTIONS. [CH. I. § II. 
 
 be an invasion of the statute of frauds ; and he asked whether, 
 if there had been an express condition of sale, that the statute 
 of frauds should have no operation on the transaction between 
 the parties, it could be contended to be an efficient condition so 
 as to avoid the statute. But such a condition in a sale by order 
 of the court is binding on the persons who consent to the sale 
 and upon their agents. (/) 
 
 3. Although trustees sell under an act of parliament which 
 prescribes that after certain acts the last bidder is to be the pur- 
 chaser, yet the trustees as between them and the bidders may 
 superadd other conditions.(g') 
 
 4. The judges will so construe conditions of sale as to collect 
 the meaning of the parties, without incumbering themselves 
 with the technical meaning of the words. Therefore a stipu- 
 lation that the purchaser should pay a rent before a lease was 
 granted is valid, although the money could not strictly be. called 
 a rent. (A) 
 
 5. Where an e.state was subject to an annual rent charge, and 
 part of it was sold upon a general statement that the lots were 
 subject to an annuity for the life of a lady then aged near sixty 
 years, it was held in the Lords, reversing the decree in the court 
 below, that the purchaser's portion was only liable to its due 
 proportion of the annuity with the rest of the estate, and that 
 an agreement for the purchaser to bear exclusively the whole of 
 the annuity would not be made out by ascertaining that the lot 
 was worth more than the price paid for it, although made liable 
 to the whole of the annuity. (t) 
 
 6. If the condition is obscurely worded, and in connection 
 with the particulars of sale is far from giving a clear and accu- 
 rate description of the property to the apprehension of ordinary 
 persons, it may be a ground for relieving the purchaser from 
 his bargain.(A:) Conditions * of sale must be construed, like any 
 
 (/) Freer v. Eimner, 14 Sim. 391. land v. Dearsley, 29 Beav. 430. [The 
 
 (j') Levy !). Pendergrass, 2 Beav. 415. particulars should describe everything 
 
 (A) City of London v. Dias, Woodfall's which it is material for the purchaser to 
 
 L. & T. 301 ; inf. ch. 4, where the pur- know in order to judge of the nature or 
 
 chaser becomes tenant. value of the property ; Bascomb v. Beck- 
 
 (i) Siree v. Kirwan, 9 C'l. & Pin. 716; with, L. R. 8 Eq. 100 ; and the vendor, 
 
 Sugd. H. of L. Cas. 667. ' before he sells, is bound to make himself 
 
 {k) See 1 Y. & Col. C. C. 663 ; Swais- acquainted with all its peculiarities and 
 
 [15] 
 
CH. I. § II.J VERBAL CONTRADICTIONS. 23 
 
 other instrument, most strictly against the party who frames 
 thern.(;) 
 
 7. If a condition provide compensation for any mistake in the 
 description of the lots or for any error or misstatement " in this 
 particular," the latter words will be construed " in these partic- 
 ulars," so as to embrace an error in the particulars. (m) 
 
 8. The auctioneer cannot contradict the particulars and con- 
 ditions at the time of sale ; such verbal ^declarations, — the bab- 
 ble of the auction room,(w) — being inadmissible as evidence. (w^) 
 If the estate is in the particulars of sale stated to be free from 
 all incumbrances,{o) the seller cannot in an action prove that the 
 auctioneer declared from his pulpit that it was charged in any 
 manner. And this rule prevails in favor as well of the seller as 
 of the purchaser,(jo) and equally to a sub-sale ; therefore, if A. 
 buy at a sale after a formal explanation at the sale, which was 
 heard by B., and then resell to B., the first declaration is no more 
 binding upon B. than upon A., and A. cannot enforce the con- 
 tract, as explained by the auctioneer, against B.(g') 
 
 9. The same rule of course prevails in equity, where the per- 
 son setting up the parol evidence is plaintiff. The particular, in 
 one case, was equivocal as to the words ; but it was clear the 
 purchaser was to pay for timber and timber-like trees. There 
 was a large underwood upon the estate. At the sale, the article 
 being ambiguous, the auctioneer declared he was only to sell the 
 land ; and everything growing upon the land must be paid for. 
 The declaration at the sale was distinctly proved ; but it was 
 determined that the parol evidence was not admissible.(r) Nor 
 when the seller is plaintiff can parol evidence be admitted on his 
 
 incidents, see Brandling v. Plummer, 2 Jones v. Edney, 3 Ca. 285, 286 ; Bradshaw 
 
 Brew. 430, so far as may be necessary in v. Bennett, 5 C. & P. 48. 
 
 order to avoid serious error in the de- (/))■ Powell u. Edmunds, 12 East, 6. 
 
 scription. (q) Shelton v. Livius, 2 Cro. & Jer. 
 
 (I) Greaves v. 'Wilson, 25 Beav. 290. 411 ; where the contract is valid, although 
 
 (m) White v. Cuddon, 8 CI. & Fin. not in writing, the evidence is admissible ; 
 
 766 ; 4 Yo. & Col. 25«; Sugd. H. of L. Eden v. Blake, 13 M. & W. 614 ; Manser 
 
 591. V. Back, 6 Hare, 443; where some of the 
 
 (n) 1 J. & W. 639. particulars were altered without the pur- 
 
 («!) [See Wright v. De Klyne, Peters C. chaser's knowledge. 
 
 C. 199; Grantland v. Wright, 2 Munf. (r) Jenkinson v. Pepys, 6 Ves. 330 ; 15 
 
 179; Eankiu v. Matthews, 7 Ired. Law, Ves. 521. [See Cannon v. Mitchell, 2 
 
 286.] Desaus. 320.] 
 
 (o) Gunnis v. Erhart, 1 H. Bla. 289 ; 
 
24 VERBAL CONTRADICTIONS. [CH. I. § II. 
 
 behalf, of the declarations at the sale, although the purchaser, 
 by the written agreement, bind himself to abide by the conditions 
 and declarations made at the sale.{s) Neither an ambiguity nor 
 a mistake can be corrected verbally. If the particulars state the 
 estate to be held for three lives, but one drop before the sale, the 
 auctioneer's statement of the fact cannot be received.(<) 
 
 10. But a question has been raised, whether, if by a collateral 
 representation a party be induced to enter into a written agree- 
 ment, * different from such representation, he may not have an 
 action on the case for the fraud practised to lay asleep his pru- 
 dence. (m) 
 
 11. If the purchaser have particular personal information given 
 him, the parol evidence may be admitted.(a;) It may therefore 
 be proved that the purchaser perused the original lease before 
 the sale,(2/) as that does not contradict the particulars of sale ; 
 but it would be difficult to act upon the evidence at law, against 
 a direct statement in the particulars. For the reading the lease 
 at an auction by the auctioneer is no excuse for a misdescription 
 of the terms of the lease in the particulars of sale.(2r) Such evi- 
 dence may be used in equity as a defence against the specific 
 performance, if the parol variation was in favor of tlie defend- 
 ant, and the plaintiff" seek a performance in specie according to 
 the written agreement, (a) 
 
 12. It should be borne in mind that in contracts for the sale of 
 real estate, an agreement to make a good title is always implied, 
 unless the liability is expressly excluded. (6) And an agreement 
 
 (s) Higginson v. Clowes, 15 Ves. 515. (a) Higgrnson w. Clowes, uii smjd. 
 
 inf. (6) Doe v. Stanion, 1 M. & W. 701 ; 
 
 (() Bradshaw v. Bennett, 5 C. & P. 48. Sharland v. Leifchild, 10 Ad. & El. 529 ; 
 
 («) Powell V. Edmunds, 12 East, 6 ; Worthington v. Warrington, 5 C. B. 636 
 
 Bartlcttw. PurneU, 4 Ad. &E1. 792; acase [the paging is incorrect]; [Souter u. 
 
 of goods, arid a bidding under agreement; Drake, 5 B. & Ad. 992; Hall v. Betty, 
 
 the seller was plaintiff. 4 Mann. & G. 410. Every condition in- 
 
 {x) Gunnis v. Erhart, 1 H. Bla. 289 ; tended to relieve the vendor from his 
 Peraber v. Mathers, 1 Bro. C. C. 52 ; Eife liability to deduce a marketable title^ 
 u, Clayton, 13 Ves. 546, where the partic- and verify the abstract by proper evi- 
 ular was altered before the sale ; Ogilvie dence at his own expense, must be ex- 
 V. Foljambe, 3 Mer. 53 ; Earebrother v. pressed in plain and unambiguous Ian- 
 Gibson, 1 De G. & J. 602. guage. Osborne v. Harvey, 7 Jur. 229 ; 
 
 (y) Bradshaw v. Bennett, 5 C. & P. 48. Morris u. Kearsley, 2 Y. & C. 139 ; Nash 
 
 (z) See 1 Bing. N. C. 379; Brumfit v. u. Browne, 9 Jur. N. S. 431. An express 
 
 Morton, 3 Jur. N. S. 1198. agreement to make a good title has, at 
 
 [16] 
 
CH. I. 
 
 § "•] 
 
 CONDITIONS TO ACCEPT THE TITLE. 
 
 26 
 
 generally to sell, not expressing the interest in the subject, in- 
 cludes all the vendor's interest.(c) Where the stipulation was 
 generally for a good title, but the property was described as 
 copyhold, " except a small portion which is held from the com- 
 missioners of waste lands at West Derby at the yearly rent of 
 6s.," the inclination of the court was that the purchaser could 
 not require the title of the commissioners.(rf) 
 
 13. A condition upon a sale by assignees who had a defective 
 title, that the purchaser should have an assignment of the bank- 
 rupt's interest under such title as he lately held the same, an 
 abstract of which might be seen, was held in Freme v. Wright 
 to be a sale only of such title as the assignees had.(e) And 
 in Spratt v. JefFery,(/) an agreement to sell two leases and 
 the trade, as the * seller held the same for the term, and the 
 purchaser was to accept an assignment without requiring the 
 
 law, been held to bind the vendor to re- 
 move defects in title, which were known to 
 both parties at the date of the contract, 
 and which were in their nature removable. 
 Bamett v. Wheeler, 7 M. & W. 364.] 
 
 (c) Bower u. Cooper, 2 Hare, 408 ; infra. 
 [And such interest, if not described, will 
 be inferred to be an estate in fee-simple ; 
 Hughes V. Parker, 8 M. & W. 244 ; bat it 
 may be shown, even in support of a bill 
 for specific performance, that the purchaser 
 knew the actual nature of such interest ; 
 see Cowley v. Watts, 17 Jur. 172; Cox v. 
 Middleton, 2 Drew. 217 ; and unless the 
 contrary be expressed, the interest oiFered 
 for sale (whether it be absolute or quali- 
 fied) will be presumed to be accompanied 
 by all those advantages which are legally 
 incidental to it. Skull v. Glenister, 16 C. 
 B. N. S. 81 ; 33 L. J. C. P. 185. There- 
 fore, an infringement of the rule, " Cujus 
 est sdum ejus est usque ad ccelum et ad 
 inferos," is (if not mentioned in the partic- 
 ulars) suflScient to render the contract 
 voidable by the purchaser; Pope v. Gar- 
 
 land, 4 Y. & C. 403 ; see Lewis v. Braith- 
 waite, 2 B. & Ad. 437 ; Keyse v. Powell, 2 
 El. & Bl. 132 ; Sparrow c. Oxford, &c. 
 Railway Co. 2 De G., M. & G. 108 ; so, 
 where there was no title to an under- 
 ground cellar, the defect was held fatal ; 
 Whittingdon w. Corder, 16 Jur. 1034; so, 
 where there was a want of title te such a 
 proper access to a house as, under the de- 
 scription, the purchaser was justified in 
 expecting ; Stanton v. Tattcrshall, 1 Sm. 
 & G. 529 ; so, where on a sale of arable land 
 no right of way was shown thereto for 
 carts and carriages ; Denne v. Light, 3 
 Jur. N. S. 627 ; 8 De G., M. & G. 774. See 
 Langford ». Selmes, 3 K. & Jo. 220.] 
 
 {d\ Ashton «. Wood, 3 Sm. & Gif. 
 436. 
 
 (e) 4 Mad. 364 ; post, ch. 9 ; MoUoy v. 
 Sterne, 1 Dru. & Wal. 585, et qu.; Taylor 
 V. Martindale, 1 Y. & Col. C. C. 658; 
 Nouaille v. night, 7 Beav. 621 ; Lethbridge 
 0. Kirkraan, 25 L. J. N. S. 89 ; Phipps v. 
 Child, 9 Drew. 709. 
 
 (/) lOB. &C. 249 (1). 
 
 (1) By the purchase of a bad lease the party mai/ derive the same benefit as if it were 
 good, and if he cannot, the lessee or his assignee has a remedy over against the 
 grantor of the lease. The plaintiflF, therefore, may either have the premises for the 
 two terms for which they were demised, or an equivalent compensation; per Baylej 
 3. 10 B. & C. p. 260; qu. this doctrine, and gu. the right to recover upon eviction. 
 
 [17] 
 
26 CONDITIONS TO ACCEPT THE TITLE. [CH. I. § n. 
 
 lessor's title, was held to preclude the purchaser from objecting 
 to the lessor's title. And under an agreement to accept the 
 title without dispute, the purchaser was held bound, although 
 the legal estate was outstanding in a mortgagee(g-) who had been 
 paid off. And so also where the conditions stated that the seller 
 had only an equitable interest, and that the purchaser was to 
 accept such title as he could convey; the seller had the equitable 
 title which the purchaser was compelled to accept, leaving the 
 legal estate outstanding.(A) And a condition that the lessor's 
 title would not be shown and should not be inquired into, pre- 
 cluded the purchaser from showing that the lessor's title was 
 invalid. (t) The judges have differed about Spratt v. Jeffery. It 
 is said to be reconcilable with later cases,(/(;) but some have not 
 approved of it,(/) and it would probably not be followed. All 
 agree that a stipulation of this nature should be free from am- 
 biguity,(m) and the seller will be held strictly to the representa- 
 tion of the title which the purchaser is bound by the conditions 
 to accept.(w) Therefore, where the condition was that the pur- 
 chaser should be satisfied with a declaration of the seisin of A. 
 in fee simple, free from incumbrances, a declaration of her seisin 
 in fee simple, and that the property was in the occupation of 'B. 
 as her tenant, was deemed insufficient, because it was left to 
 inference only that she was in possession of the fee free from 
 incumbrances. (o) And it has been held, that a condition that 
 the seller should not be liable to produce the lessor's title, 
 did not exclude the purchaser from showing aliunde that the 
 
 (g) Duke v. Burnett, 2 Col. 337. [So, R. 683 ; see pp. 69.5, 706 ; Geoghegan v. 
 
 where the condition was that the purchaser Connolly, 8 Ir. Ch. R. 598 ; [Hume v. 
 
 should accept " such title as the vendor Poeock, L. R. 1 Ch. Ap. 379 ; L. R. 1 Eq. 
 
 has." Keyse v. Heydon, 20 L. T. 244; 423.] 
 
 Tweed v. Mills, L. E. 1 C. P. 39.] (m) Shepherd v. Keatley, ubi sup. ; Sea- 
 
 (h) Ashworth v. Mounsey, 9 Exch. 175. ton v. Mapp, 2 Col. 556 ; Groom v. Booth, 
 
 (i) Hume v. Bentley, 5 De G. & Sm. 1 Drew. 548 ; Drysdale v. Mace, 2 Sm. & 
 
 520. [So, where a breach of trust, inval- Gif. 225; 5 DeG.,M. & G. 103; Ashworth 
 
 idating the title, was clearly stated in the v. Mounsey, 2 Com. L. E. 418 ; Rhodes v. 
 
 conditions. NichoUs v. Corbett, 3 De G., Ibbetson, 4 De G., M. & G. 787 ; Jackson 
 
 J. & S. 18.] ,v. Whitehead, 28 Beav. 154. 
 
 (k) Duke V. Burnett, 2 Col. 337. (n) Forster v. Haggart, 15 Q. B. 155 ; 
 
 (/) Shepherd v. Keatley, 1 Cro., Me. & 14 Jur. 757 ; see 8 C. Bf 477 ; Hume v. 
 
 Eos. 117 ; 4 Tyr. 571 ; 5 B. & Ad. 1002 J Bentley, 5 De G. & Sm. 520, post; Hoy v. 
 
 3 Yo. & Col. 418 ; Anderson v. Higgins, 1 Smythies, 22 Beav. 510. 
 
 Jo. & L. 718 ; Leatham v. Allen, 1 Ir. Ch. (o) Nott v. Riccard, 22 Beav. 307. 
 
CH. I. § II. ] CONDITIONS TO ACCEPT THE TITLE. 27 
 
 title was bad.(;?) So, if the vendor stipulate that he shall' not 
 be bound to produce a title prior to the last conveyance, yet 
 if he produce a defective title on the face of the abstract, the 
 purchaser may reject it.{q) Where it was doubtful whether 
 a power to sell in a mortgage was not destroyed by a trans- 
 fer of the mortgage, a condition that the purchaser should 
 not require the mortgagor's concurrence was held not to be 
 binding on *him.(»-) A statement of the title to a leasehold 
 which was silent as to the legal estate not being represented, 
 but required " the purchaser to be satisfied wnh an assignment 
 from the sellers, who were executors of the beneficial interest," 
 was held not to bind the purchaser to dispense with the legal 
 estate, (s) 
 
 14. And where the sale was of a plot of ground held for a term 
 of 111 years from 25th April, 1853, subject to the annual rent of 
 5/., and it really was held by an underlease from a lessor who 
 held the property under two distinct leases, at distinct rents 
 amounting in the aggregate to 40/., the contract was not en- 
 forced against the purchaser, although the conditions stipulated 
 that the lessor's title should not be questioned, nor should the 
 vendor be bound to go behind the same. The misdescription 
 was held to amount to misrepresentation, and the title being 
 bad, the court relied upon an ambiguity in the conditions which 
 provided for the delivery by the seller of copies of searches 
 against his lessor from,1845to 1853, so that the original lessor's 
 
 ip) Shepherd v. Keatley, 1 Cro., Me. & v. Fox,. U Hare, 48. In one case where 
 
 Eos. 117; 4 Tyr. 571 ; Drysdale v. Mace, A., for his own purposes, induced B. to 
 
 2 Sm. & Glf. 225 ; 5 De G., M. & G. 103. buy from C, and shortly afterwards agreed 
 
 (?) Sellick V. Trevor, 11 M. & W. 722. to purchase from B., who was only to pro- 
 
 [See Phillips v. Caldcleugh, L. R. 4 Q. B. duce the title from C. to himself, A. was 
 
 159 ; and although bound to accept the not allowed to prove aliunde that C. had 
 
 title as it stands, he may yet require to be no title. Hume v. Pocock, L. K. 1 Ch. 
 
 satisfied to the best of the vendor's ability, Ap. 379.1 
 
 as to what that title really is. See Keyse (r) Cruse v. Nowell, 2 Jur. N. S. 536. 
 
 V. Heydon, 20 L. T. 244 ; Morris v. Hears- (s) Smith v. Ellis, 14 Jur. 682 ; Jackson 
 
 ley, 2 Y. & C. 139. So, although a pur- v. Whitehead, 28 Beav. 154 ; where the 
 
 chaser be bound by the condition to ac- statement was more explicit. [And, as a 
 
 cept certain specified evidence as sufScient general rule, if facts ' are fully disclosed, 
 
 proof of a material fact, he may yet their legal efifect need not be stated, 
 
 require to be satisfied that the vendor has Smith v. Watts, 4 Drew. 338.] 
 no better evidence in his possession. Bird 
 
 [18] 
 
28 CONDITIONS TO ACCEPT THE TITLE. [CH. I. § II. 
 
 title was brought to bear upon the sa.]e.{t) But a sale of an im- 
 proved ground rent described to be amply secured, yet really 
 secured by a supposed underlease which was for a longer term 
 than the lessor had, and therefore operated as an assignment of 
 the original lease, and there was no power of distress, but the 
 conditions stated that the purchaser should not object by reason 
 of the terra purported to be granted by the deed being in excess 
 of the term granted by the original lease, inasmuch as all the 
 deeds might be inspected for ten days before the sale at a place 
 indicated : the p^chaser who ought to have examined the deeds 
 was held bound by his purchase.(M) So where the sale was by 
 devisees in trust, of a house and also a fee-farm rent out of other 
 houses of 1/. Is. per annum, and it was stated that the lot was 
 subject to an apportioned fee-farm rent of 11. Is., and the abstract 
 was to commence with deeds of 1816 (the conveyance to the tes- 
 tator), and no evidence was to be required of the receipt or pay- 
 ment or existence of the two ground-rents of 11. Is. each, other 
 than that disclosed by the convey'&.nce to the testator which was 
 then produced, nor should any objection be taken to the title in 
 consequence of the nonpayment or non-receipt of either of the 
 said rents ; it was held that the condition compelled the pur- 
 chaser to accept the title, although the sellers stated after the sale 
 that the rent of 11. Is. charged on the lot sold was never paid by 
 the deceased, and that the other rent was never received by him. 
 It was open, it was said, to the purchaser to show that the rent 
 had never * existed, or had been alienated by the testator, but he 
 took the chance of being able to substantiate the right to the 
 rent ; it was not unlawful for the sellers to sell that chance 
 valeat quantum.{x) And a refusal by the seller's agents to insert 
 a stipulation in the contract for a good and marketable title, of 
 course, was held to bind the purchaser to the actual condition 
 under which the agents offered only to make a good title ac- 
 cording to the conditions. (2/) And where an estate was sold 
 generally as partly freehold and partly leasehold, it was held 
 
 (t) Geoghegan v. Connolly, 8 Ii-. Ch. [x) Hanks v. Palling, 2 Jur. N. S. 688 ; 
 
 Rep. 598. 6 E. & B. 659. 
 
 («) Smith V. Watts, 28 L. J. N. S. 220. (y) Hyde v. Dallaway, 4 Beav. 606 ; 6 
 
 The conditions were well calculated to Jur. 119. 
 alarm a purchaser. 
 
 [19] 
 
CH. I. § II.] CONDITIONS AS TO TITLE. 29 
 
 that the purchaser was bound by the contract, although the 
 boundaries were open to question — a plan and a scale were an- 
 nexed to the lease, and a less quantity was stated in the plan 
 . than the scale would give.(z) Of course a seller nnay by express 
 condition bind a purchaser to complete, although the quantity 
 expressed to be sold is greater than what appears in the muni- 
 ments of title, and although no identity is shown beyond what 
 can be collected from them.(fl) 
 
 15. But a description of the seller's interest, as " that it was 
 understood that he was possessed of the property for two lives," 
 will not preclude the purchaser from requiring a title during the 
 lives. (6) A condition upon the sale of a reversion, that the state- 
 ment in a deed of 1839 that a life annuity " granted in 1824 
 had not been paid or claimed for eight years, &c., should be con- 
 clusive evidence of the fact of such annuity having determined, 
 and of the cessor of the term for securing the same," was held 
 not to be binding on the purchaser, as it appeared that the an- 
 nuity was granted out of the reversion, and was for four lives 
 and the lives and life of the survivors and survivor of them, of 
 which one at least was still living.(c) So a stipulation to ex- 
 ecute and deliver a valid disposition of the property to the pur- 
 chaser, and to deliver to him certain specified deeds, " which are 
 all the title-deeds in the seller's possession," does not bar the pur- 
 chaser's right to a good title, or limit him to the title under the 
 specified deeds.(«?) And where a condition provided for a good 
 title, a subsequent restriction as to the delivery of title-deeds, and 
 the non-production of any other than those in his possession, &c., 
 was held not to limit the right to a good title, (e) 
 
 16. If a man agree to complete upon having a good title, 
 or a bond to complete the title, he, of course, must pay the 
 money and *accept the bond if a title cannot be made ; (/) but 
 such a stipulation may mean that a bond is to be accepted 
 if the title cannot, at the time, be completed, provided that 
 
 («) Monro v. Taylor, 8 Hare, 51, see p. (c) Drysdale v. Mace, 2 Sm. & Gif. 225 ; 
 
 66 ; 3 Mac. & G. 713 ; the purchaser was 5 De G., M. & G. 103. 
 
 besides bound to take such title as the {d) Dick o. Donald, 1 Bl. N. S. 655; 
 
 seller brought. Morris v. Kearsley, 2 Yo. & Col. 139. 
 
 (a) NicoU V. CihamKers, 11 C. B. 996. (e) Southby v. Hutt, 2 My. & Cra. 207. 
 
 (6) Worthington v. Wamngton, 5 C. B. (/) Willett v. Clark, 10 Pri. 207. 
 636. 
 
 [20] 
 
30 CONDITIONS AS TO TITLE. [CH. I. § II. 
 
 the vendor has the power to complete it.(g') So a purchaser 
 may bind himself to take an indemnity against a deed turning 
 out to be genuine, which is stated by the seller to be a forgery, 
 and not to object to the deed, and his remedy will be under the 
 indemnity only, although a jury find that the deed was the deed 
 of the seller. (A) 
 
 17. A condition that the seller may annul the contract, and 
 return the deposit, if objections are made by the purchaser, and 
 not removed within a fixed time, enables the seller to avoid the 
 sale if the purchaser, under a mistake in law, raise an objection 
 which cannot be maintained. (t) And the right of the seller to 
 rescind if he is unable or unwilling to remove the objections 
 taken by the purchaser, may be exercised immediately after a 
 bill filed by the purchaser requiring a title, and the purchaser 
 by his counsel at the bar waiving title will not avail him ; {k) but 
 he cannot make use of the condition for a fraudulent purpose, 
 e. g. on account of the inadequacy of price. And, of course, if 
 the purchaser simply require that which flows from the nature of 
 the transaction, for example, that a mortgage be paid off, the 
 vendor cannot avail himself of the condition to rescind the sale, 
 and by an attempt to do so may fix himself with costs, although 
 the purchaser raised also untenable objections. (/) If the seller 
 file a bill for specific performance, he cannot at all events rescind 
 the contract without having first -dismissed his bill with costs.{m) 
 And it has been held that where there is a condition of this na- 
 ture, a seller cannot simply say " that he is unable to remove the 
 purchaser's requisitions, and therefore shall return no answer ; " 
 but the purchaser is entitled to have the information which he 
 seeks, and then to decide whether or not he will take such title 
 as the seller can make. But still the seller is not bound to re- 
 move any difficulty that is raised ; he is the sole judge whether 
 he will or will not remove the difficulty ; and if the purchaser 
 
 {g) Clark v. Faux, 2 Rus. 320. unwilling to remove, the latter is not jus- 
 
 (/i) Corral] v. Cottell, 4 M. & W. 734; tified in rescinding, if the former, on being 
 
 Cattell V. Corrall, 3 Yo. & Col. 413. made acquainted with the fact, at once 
 
 (i) Page V. Adam, 4 Beav. 269 ; Lane waives his objection. Duddell v. Simpson, 
 
 V. Debenham, 17 Jur. 1005 ; see post. L. R. 1 Eq. 578 ; L. R. 2 Ch. Ap. 102.] 
 
 (fc) Hoy V. Smythies, 22 Beav. 510. (/) Greaves v. Wilson, 25 Beav. 290, in- 
 
 [But where the vendor's right to rescind fra. 
 
 arises on the purchaser's insisting on an (m) "Warde v. Dixon, 28 L. J. N. S. 
 
 objection, which the vendor is unable or 315. 
 
CH. I. § 11.] CONDITIONS AS TO TITLE, 81 
 
 will not take the title without the objections being removed, the 
 vendor has reserved to himself a right to rescind the contract.(w) 
 Where it was stipulated that after delivery of objections to the 
 title within a time limited, the vendor should be at liberty to 
 vacate the sale and return the deposit only, it was held that 
 this condition was confined to title, and did. not extend to an 
 objection that the lease sold was not renewable * by custom, 
 as stated in the conditions. (o) A condition that if the counsel 
 of the purchaser should be of opinion that a marketable title 
 could not be made, the agreement should be cancelled, is a 
 binding one ; (p) but of course it must not he abused. And a 
 like condition would not enable a seller to rescind the contrabt 
 where there is a life estate in a third person, of which the seller 
 was aware, although be soH the fee. (9) Where a purchaser was 
 to be at liberty, if his objections were not removed, to give a 
 month's notice in writing of his intention to vacate the sale, and 
 the contract was to be considered void, and he gave the notice 
 for want of title to a small part, he was held not bound to com- 
 plete with a compensation for that part.('/-) 
 
 18. A condition that all objections to the title must be deliv- 
 ered within a given time, or are to be deemed waived, is of course 
 binding,(s) and time may be made of the essence of the con- 
 tract.(s^) Such a condition means after the delivery of a perfect 
 abstract; it does not apply to an imperfect abstract, from which 
 it cannot be ascertained what objections there may be.(^) And 
 the purchaser is not precluded from taking objections which 
 arise out of evidence called for before the time limited. (m) And 
 if such objections were justified by the new evidence, the pur- 
 chaser, it should seem, would not be limited to the time mentioned 
 
 (n) Tui-pin v. Chambers, 30 L. J. N. S. (?) Nelthorpe v. Holgate, 1 Col. C. 203. 
 
 470 ; 29 Beav. 104 ; the purchaser procured (r) Ashton v. Wood, 3 Jur. N. S. 1164 ; 
 
 the coneui-rence of other parties. The 3 Sm. & Gif. 436, -where the condition is 
 
 seller was fixed with the costs to the hear- not stated. 
 
 ing. [SeeMajrsonw.Pletcher, L.E.I OEq, (s) Blackburn v. Smith, 2 Ex. 783; 
 
 212 ; 39 L. J. Ch. 583 ; 18 W. E. 798, E.] [Powell v. Smithson, 20 L. T. 105, L. C] 
 
 (0) Newby v. Paynter, 17 Jur. 483; 1 (s^) [See ^Jos*, 268, & notes.] 
 
 Eq, E. 173 ; 11 Hare, 26 ; Edwards-Wood (t) Hobson v. Bell, 2 Beav. 17 ; Gee v. 
 
 V. JVIarjoribanks, l,Giff. 384 ; 3 De G. & J. Pearse, 2 De G. & Sm. 325. 
 
 329 ; 7 H. L. Cas. 806. . ( «) Blacklow v. Laws, 2 Hare, 40 ; Mor- 
 
 (;;) Williams u. Edwards, 2 Sim. 78 ; ley v. Cook, 2 Hare, 106. 
 inf. ch. 9. 
 
 [21] 
 
32 TITLE : RECITALS TO BE EVIDEXCE. [CH. I. § II. 
 
 in the condition. So where facts are discovered subscjquently to 
 the delivery of requisitions within the time allotted either to 
 show that the vendor has no title, or what is called a bad title, 
 or that the vendor has a title which is open to the greatest pos- 
 sible doubt, one learned judge said he for one never would say 
 that the purchaser was subsequently bound and precluded from 
 raising these objections if the facts were not known to him at 
 the time he delivered his requisition. (v) 
 
 19. Where a condition of sale of a copyhold estate provided 
 that all statements and recitals in any of the title-deeds, &c., 
 should be considered satisfactory evidence of the facts stated or 
 recited, a statement in an admittance that A. had then lately 
 been admitted tenant in tail according to the custom of the 
 manor,*was held to bind the purchaser as far as the statement 
 that A. was admitted tenant in tail ; but it was considered 
 doubtful whether he was bound by the statement that such ad- 
 mission was according to the custom of the manor, because 
 that is not a single fact, but rather a deduction from *a 
 series of facts.(a;) And a mere statement in the receipt in 
 the body of the deed that the purchase money was in full 
 for the estate free from land tax, and all other incumbrances, 
 was held not to fall within a condition that every deed of a 
 certain age should be conclusive evidence of everything recited 
 or stated therein, and therefore the purchaser was entitled to 
 regular evidence of the redemption of the land tax.(y) A con- 
 dition upon a sale of a leasehold stipulated that the posses- 
 sion under the lease should be deemed conclusive evidence of 
 the due performance, or sufficient waiver of any breach of the 
 covenants in the lease up to the completion of the sale, was held 
 to cover a breach of covenant to insure (which gave the lessor 
 the right of reentry) before the sale, but not a like breach after 
 the sale, although, of course, before the completion of the sale, 
 as the court would not sanction the making a provision to apply 
 to future breaches of covenant.(2r) And the learned judge 
 
 («) Warde v. Dixon, 28 L. J. K S. 315. (z) Howell v. Kightley, 21 Beav. 331 ; 8 
 (x) Goold u^ White, 1 Kay, 683. De G., M. & G. 325. 
 
 (y) Buchanan v. Poppleton, 4 C. B. N. 
 S. 20. 
 
 [22] 
 
CH. I. § U.J CONDITIONS AS TO COVENANT AND TITLE. 33 
 
 guarded himself from saying what would be the result if the 
 landlord being applied to had said to the purchaser, « I will evict 
 you as soon as you have completed your purchase." Now a 
 bond fide purchaser of a leasehold without notice will be safe 
 against a prior forfeiture by non-insurance if he is furnished 
 with a receipt for the last payment of rent due, and there is, 
 when he completes the purchase, a valid fire-policy on foot.(o) 
 
 20. A stipulation in a contract that, in case the vendor cannot 
 deduce a good title, or if the purchaser shall not pay the money 
 on the appointed day, the agreement shall be void, does not 
 enable either party to vitiate the agreement, by refusing to per- 
 form bis part of it ; the seller may avoid the contract, if the pur- 
 chaser do not pay the money ; the purchaser may avoid it, if the 
 seller do not make a title ; or the contract will be void if the 
 seller cannot make a title: but it is not sufficient for him to 
 say that he cannot.(6) And where the seller reserves a power 
 to rescind the contract, instead of answering objections to the 
 title, yet if he once elect to answer, he is precluded from after- 
 wards rescinding the contract ; (c) and the same rule would 
 apply where the condition limits the purchaser's right to make 
 objections.(<i) The seller, of course, would not be permitted 
 to deliver a false abstract in order to enable him to avoid the 
 contract ; and if he insist that he has the right to rescind the 
 contract, he cannot at the *same time retain the deposit.(e) 
 Such a condition *does not altogether relieve the seller from 
 the duties of a vendor. Where the condition was that if the 
 purchaser should, within the time limited, show any objection, 
 whether of title, conveyance, or otherwise, and " shalL insist 
 thereon" the vendor should be at liberty to rescind the contract, 
 &c., and the purchaser made certain objections, some of which 
 could not be sustained, the seller simply gave notice that he re- 
 scinded the sale; but it was held that the sale was not rescinded, 
 and he was fixed with the costs. If he had made a reasonable 
 
 (a) 22 & 23 Vict. e. 35, s. 8 ; see inf. ch. Freeman, 4 Bing. N. C. 395 ; Wilson v. 
 
 12,0.4. . Carey, 10 M.&W. 641. 
 
 (6) Roberts v. Wyatt, 2 Taunt. 268; (c) Tanner v. Smith, 10 Sim. 410; 4 
 
 Kippingall v. Lloyd, 2 Ney. & Man. 410 ; Jur. 310; Morley v. Cook, 2 Hare, 106. 
 
 Page V. Adam, 4 Beav. 269 ; Malins v. (d) Ciitts v. ThOdey, 13 Sitn. 206. 
 
 (e) Morley v. Cook, 2 Hare, 110, HI. 
 
 VOL. I. 3 [23] 
 
34 DESCRIPTION OF ESTATE. [CH. I. § 11. 
 
 answer, and the purchaser had insisted upon his objections, then 
 the seller might have rescinded the sale.(/) 
 
 21. A misrepresentation of the nature of the property which 
 does not affect the title, may be made a defence to a claim for 
 specific performance, although the time has elapsed for objecting 
 to the title.(g') The estate cannot be too minutely described in 
 the particulars, for although it is impossible that all the little par- 
 ticialars relative to the quantity, the situation, &c., should be so 
 specifically laid down as not to call for some allowance and con- 
 sideration, when the bargain comes to be executed ; (A) yet if a 
 person, however unconversant in the actual situation of his es- 
 tate, will give a description, he must be bound by it.{i) The 
 particulars are, in truth, like a description in a policy of insur- 
 ance, and the buyer knows nothing but what the party communi- 
 cates.(A;) Conditions of sale stated a house to be " a free public 
 house."(/) The lease contained a covenant to take beer from 
 the lessors ; the auctioneer read over the whole lease in the hear- 
 ing of the bidders, but stated that the covenant had been decided 
 to be bad, and declared that he sold this a free public house. A 
 bidder, therefore, was not bound to attend to the clauses of the 
 lease, and the purchaser recovered his deposit. 
 
 22. But a purchaser is bound to inquire ; therefore, where a 
 house known as 39 Regency Square, Brighton, was sold in Lon- 
 don to a purchaser who had not se6n the property, he was held 
 to his bargain without compensation, although the house was not 
 really in the square, but was in a side street leading from that 
 square to another street.(m) Yet, in a case where the purchaser 
 
 if) Greayes v. Wilspn, 25 Bear. 290.; gart, 1 Ry. & Moo. 39 ; Martin v. Cotter, 
 
 and see Turpin v. Chambers, 7 Jur. N. S. 3 Jo. & L. 496 ; Brandling i^. Hummer, 2 
 
 459, that the seller must answer the requi- Drew. 427. 
 
 sitions. There is probably some inaccu- , (I) Jones v. Edney, 3 Cam. 284 ; Flight 
 
 racy in the report of the judgment. [See o. Booth, 1 Bing. N. S. 370 ; Barnard v. 
 
 Duddell V. Simpson, L. R. 1 Ex. 578 ; L. Cave, 26 Bear. 253, agreement by a brewer 
 
 E. 2 Ch. Ap. 102.] to lease a tavern ; Modlen v. Snowball, 7 
 
 (g) Pricew.Macaulay,2 De G., M. & G. Jur. N. S. 1260, 31 L. J. N. S. 44, affd 
 
 339. agreement, with a retail license to sell beer. 
 
 (A) 1 Ves. jr. 224 ; Price v. North, 2 Yo. (m) White v. Bradshaw, 16 Jur. 738, sed 
 
 &, Col. 620. gu. The seller was of course aware that 
 
 ({) See 1 Ves. jr. 213 ; Schneider u. the houses were in no proper sense in the 
 
 Heath, 3 Ca. 506 ; ch. 8, s. 3, 4, inf. square. The original numbering of the 
 
 (Jc) 3 Smith,. 439 ; Duke of Norfolk v. houses as if in the square was a fraudulent 
 
 "Worthy, 1 Ca. 337, post; Waring u. Hog- misdescriTition. 
 
CH. I. § II.] DESCRIPTION OF ESTATE : PLANS. 35 
 
 only knew the property from the particulars, which desciibed it 
 as a honse, No. 58, on * the north side of Pall Mall, and oppo- 
 site Marlborough House, whereas it was not in Pall Mall, but 
 at the back of No. 57 in that street, to which it had access 
 through a long passage, formerly part of No. 57, and under 
 which there were cellars, which the seller claimed, and above 
 it the floor of No. 57, and this passage communicated with 
 the street, and the house was numbered 58, the vice chancel- 
 lor was of opinion that, if the purchaser had not waived the ob- 
 jection, he might have set aside the contract on account of the 
 misdescription. And although the purchaser had waived the ob- 
 jection to the position of the house and its entrance, yet, as the 
 passage was not deemed a safe and proper one, the purchaser 
 was still held to be entitled to be released from the contract.(w) 
 
 23. But where it appeared upon the sale of a ground lease of 
 a house, subject to an under-lease, that the particular house was 
 not comprised in the under-lease, but another house had, by 
 mistake, been inserted in the place of it, and the seller had it in 
 his power to rectify the mistake, the purchaser's objection, of 
 course, was not allowed to prevail.{o) 
 
 24. Plans should be so framed as to convey clear information 
 to the ordinary class of persons who frequent sales by auction. 
 Although a lot was sold, subject to the same rights of way (1) as 
 
 (n) Stanton v. Tattersall, 1 Sm. & Gif. (o) GriSsell v. Peto, 2 Sm. & Gif. 39. 
 529. 
 
 {!) A purchaser should ascertain that no way of necessity exists over his lot. One 
 may pass or be reserved without express words ; Peniiingion v. Galland, 1 Com. L. E. 
 819 ; see Denne v. Light, 3 Jur. N. S. 627 ; White v. Bass, 8 Jur. N. S. 312, Ex. Where 
 the grant runs with the land, see Ackroyd v. Smith, 10 C. B. 164 ; where it arises by 
 implication in a will, Pearson v. Spencer, 7 Jur. N. S. 1195; so there may be an im- 
 plied grant of drainage rights; Pyer v. Carter, 1 H. & N. 916 ; Ewart v. Cochrane, 7 
 Jur. N. S. 925 ; Baird v. Fortune, 76. 926 ; [Angell Watercourses (6th ed.), §§ 166a- 
 166v, and cases cited; Dodd n. Burchell, 8 Jur. N. S. 1180; 1 H. & C. 113 ; Hall v. 
 Lund, 1 H. & C. 681 ; Suffield v. Brown, 10 Jur. N. S. HI ; Crossley v. Lightowler, 
 L. li. 2 Ch. Ap. 486 ; Morland v. Cook, L. E. 6 Eq. 252, 263, 265 ; Thayer v. Payne, 2 
 Cush. 327 ; Johnson v. Jordan, 2 Cash. 234 ; Carbrey v. Willis, 7 Allen, 364 ; Eandall 
 V. McLaughlin, 10 Allen, 366 ; Philbrick u. Bwing, 97 Mass. 133 ; Dunklee v. The 
 Wilton Eailroad Co. 24 N. H. 489 ; Lampman v. Milks, 21 N. Y. 507 ; Seymour v. 
 Lewis, 2 Beasley (N. J.), 439 ; Elliott v. Sallee, 14 Ohio St. 10; White v. Chapin, 12 
 Allen, 518; Eussell i). Harford, L. E. 2 Eq. 507.] Where one tenant had for many 
 years enjoyed a right of way against an adjoining tenant of the same landlord, a sale 
 of both tenements by the landlord simultaneously in separate lots to different purchas- 
 
 [24] 
 
36 DESCEIPTION OF ESTATE : PLANS. [CH. I. § 11. 
 
 were enjoyed under the leases of certain houses, and a lease was 
 to be seen at the attorney's office, and was produced at the sale, 
 yet, as a plan was referred to, upon which was clearly marked 
 one way over the lot, but no trace of the right of way in the 
 leases, the purchaser, who might have been misled by the plan, 
 was held not to be bound by the sale.(/i) The existence of the 
 way was not sufficiently disclosed to make it clear to persons of 
 ordinary vigilance and caution. So a plan not showing an ob- 
 jectionable projection of one house over another, of which the 
 purchaser was ignorant, avoided the sale.(g') 
 
 *25. If a plot which is referred to on a plan does not exist, 
 or cannot be discovered, the purchaser is not bound by a con- 
 dition that it was presumed he would be able, by inquiry, to 
 ascertain its true situation, and that he was to accept it by the 
 description only in the conveyance of it, as the seller could not 
 properly identify it.(r) 
 
 26. The mere exhibition of the plan of a new street, at the 
 time of the sale of a new piece of ground to build a house in 
 the line of the intended street, does not amount to an implied 
 contract to execute the improvements exhibited on the plan 
 where the written contract is silent on that head ; (s) but condi- 
 
 {p) Dykes v. Blake, 4 Bing. N. C. 463 ; a covenant or promise, upon which the 
 
 as to a map, see Eoe v. Lidwell, 11 Ir. C. grantor can be compelled in equity, at the 
 
 L. Kep. 320. . suit of the grantee, to open and maintain 
 
 (q) Pope V. Garland, 4 Yo. & Col. 403. the strip as a street fit for travel- Hennes- 
 
 (r) Robinson v. Musgrove, 2 Moo. & Eo. sey v. Old Colony & Newport R. R. Co. 
 
 92. ■ 101 Mass. .540. But such grantor of land 
 
 (s) Feoff. Heriot's Hosp. v. Gibson, 2 so described is estopped from setting up 
 
 Dow, 301 ; Compton v. Richards, 1 Pri. any claim, or doing any acts, inconsistent 
 
 27 ; Beaumont v. Dukes, Jac. 422 ; Blanch- with the grantee's use of such strip of land 
 
 ard V. Bridges, 4 Ad. & El. 176 ; Schreiber as a street or way. Howe v. Alger, 4 Al- 
 
 V. Creed, 10 Sim. 9 ; North British R. Co. len, 206; Tufts a. Charlestown, 2 Gray, 
 
 V. Tod, 12 CI. & Pin. 722; Breynton u. 271 ; O'Linda v. Lothrop, 21 Pick. 292; 
 
 L. &N. W.R. Co. C. Coop. C. 108; Squire Thomas v. Poole, 7 Gray, 83.; Loring v. 
 
 V. CampheU, lb.; 1 My. & Cra. 459. [So Otis, 7 Gray, 563; Parker v. Smith, 17 
 
 a grant of land, described as bounding on a Mass. 413; Emerson u. Wiley, 10 Pick, 
 
 street, by one who owns the strip of land 310; Parker v. Framingham, 8 Met. 267 ; 
 
 so described as a street, does not constitute Farnsworth v. Taylor, 9 Gray, 162 ; Lewis 
 
 ers, subject to and with the benefit of all subsisting rights of way or light, was held not 
 to give to the purchaser of the lot, the lessee of which had enjoyed the right of way, the 
 right which the latter had enjoyed. Daniel v. Anderson, 8 Jur. N. S. 328 ; the case 
 depended upon the meaning of the condition as it applied to the actual state of the 
 property. 
 
 [25] 
 
CH. I. § II.J DESCKIPTION OF ESTATE : PLANS : BUILDINGS. 37 
 
 tions of sale may amount to a contract to form particular 
 roads.(<) An accurate plan does not amount to more than a 
 view of the property, and therefore upon the sale of a lot, ease- 
 ments exhibited over other lots may not entitle the purchaser of 
 the first lot to object to a transfer of the other lots without a 
 reservation of the easements in his favor. In the case in which 
 this was said,(M) the plaintiff, in a suit for specific performance 
 with a compensation, purchased Lot 1, the Acorn Inn. There 
 was a sale plan. Upon one of the lots not purchased by him 
 was a well ; upon another a reservoir ; then upon the plan a line 
 was drawn connecting the well with the reservoir, and another 
 line connecting the reservoir with the inn. The first mentioned 
 line denoted a , stone drain by which the water was conveyed 
 to the reservoir, the other line represented a pipe running from 
 the reservoir to the kitchen 6f the inn. The seller conveyed 
 the other lots to the purchasers without any reservation or stip- 
 ulation in favor of Lot 1, as to the supply of water, and it 
 was held that he was entitled to do so, and that the purchaser 
 was not entitled to compensation ; but it was not of course de- 
 cided whether the purchaser of Lot 1 had any remedy against 
 the other purchasers. This case is open to observation, and it 
 proves that a man should expressly stipulate for the easements 
 exhibited on the face of a plan, as enjoyed with the property he 
 proposes to purchase. 
 
 27. Representations of intended improvements by building, 
 upon the faith of which a purchaser may have contracted, may 
 be a ground for refusing a specific performance against him, 
 
 V. Street, 2 Wend. 472 ; Livingston v. New exhibited at the sale, and subsequently re- 
 York, 8 Wend. 85 ; Bellinger v. Union corded by the grantor in the registry of 
 Burial Ground Society, 10 Barr, 135; deeds, is^ made a part of the deed, and es- 
 White V. Flannigain, 1 Md. 525 ; Moale v. tops the grantor and those claiming under 
 Baltimore, 5 Md. 314 ; Walker v. Worces- him to deny the existence of the street 
 ter, 6 Gray, 548.] as delineated on the plan." llodgers v. 
 (t) Peacock v. Penson, II Beav. 355; Parker, 9 Gray, 445; Morgan u. Moore, 3 
 Mason v. Cole, 4 Ex. 375. [In Parnsworth Gray, 319 ; Thomas v. Poole, 7 Gray, 83 ; 
 (/. Taylor, 9 Gray, 166, it is said by Dewey Livingston v. New York, 8 Wend. 98 ; 
 J. to be " position " well maintained by Lunt v. Holland, 14 Mass. 149 ; Davis v. 
 authority and sound in principle, that Rainsford, 17 Mass. 207; 3 Kent (11th 
 where land is conveyed which is situate ed.), 433, n. (2).] 
 
 on a street or way, and reference is made («) Pewster v. Turner, 6 Jur. 144 ; Ean- 
 
 in the deed of conveyance to a plan on dall v. Hall, 4 De G. & Sm. 343 ; Glave v. 
 
 which said street is delineated, the plan Harding, 27 L. J. N. S. 286, Ex. 
 
38 LIGHTS. WALL. [CH. I. § II. 
 
 although be could not insist upon them as part of the con- 
 tract.(x) In one case it was considered that a stipulation in 
 a conveyance that the purchaser * should make a certain foot- 
 path, was too vague to be enforced ; (y) but this seems to have 
 been too doubtful a title to be forced on a purchaser. 
 
 28. If a house be sold with all the lights belonging to it, and 
 it is intended to build upon the adjoining ground belonging to 
 the same owner, so as to interfere with the lights, a right so to 
 build should be expressly reserved ; it will not do to describe the 
 house as abutting on building ground belonging to the seUer.(2) 
 We may here observe, that it is a settled rule of law, that where 
 land adjoining a highway is conveyed, a moiety of the highway 
 passes with it, although the land conveyed is in terms confined 
 to the land.(a) 
 
 , 29. Where there is a dispute between two purchasers at a sale, 
 who have obtained their conveyances, as to which a wall, for ex- 
 ample, belongs, a handbill advertising the properties for sale, 
 which was circulated in the sale-room before and at the time of 
 sale, and was seen by the party against whom it is sought to be 
 used, or his agent who bought for him, is admissible in evidence 
 
 (x) Myers v. Watson, I Sim. N. S. 523, Banks v. Ogden, 2 Wallace, 68 ; Marsh v. 
 
 inf. [See Rose v. Watson, 10 H. L. Cas. Burt, 34 Vt. 289 ; Bissell v. New York, &c. 
 
 672.] R. R. Co. 23 N. Y. 61 ; Bangor House v. 
 
 [y) Taylor v. Gilbertson, 2 Drew. 391. Brown, 33 Maine, 309 ; Hunt u. Rich, 38 
 
 (z)' Swanborough v. Coventry, 9 Bin. Maine, 195 ; Morrow v. Willard, 30 Vt. 
 
 305; 2 Moo. & S. 362; [3 Kent (11th 118; Paul o. Carver, 30 Vt. 118; Winter 
 
 ed.), 448; Washb. Easements (2d ed.), u. Peterson, 4 Zabris. 524 ; People w. Law, 
 
 77, 578, etseq.; Story «. Odin, 12 Mass. 34 Barb. 494. The moiety of the highway 
 
 157.] passes as parcel of the land by the general 
 
 (a) Berridge v. Ward, 7 Jur. N. S. 876 ; description of the land, an(} not as appuf- 
 
 [10 C. B. N. S. 400 ; Simpson w.Dendy, 8 tenant. 3 Kent (11th ed.), 434 ; Berridge 
 
 C. B. N. S. 433 ; Marquis of Salisbury v. v. Ward, 10 C. B. N. S. 400, 416 ; Parker 
 
 The Great Northern R. R. Co. 5 C. B. N. „. Framingham, 8 Met. 266, 267. But the 
 
 S. 174 ; O'Linda v. Lothrop, 21 Pick. 292, owner may convey the adjoining land with- 
 
 295, 296 ; Smith v. Slocomb, 1 1 Gray, 280 ; out the soil under the highway, or the soil 
 
 Riceu. County of Worcester, 11 Gray, 283, under the highway without the adjoining 
 
 n.; 3 Kent (nth ed.), 433, 434; Codman land. 3 Kent (Uth ed.), 434; Smith v. 
 
 V.Evans, 1 Allen, 443; HoUeubeoku. Row- Slocomb, 11 Gray, 280; S. C. 9 Gray, 
 
 ley, 8 Allen, 473; Angell Highways (2d 36; Angell Highways (2d ed.), §§ 315-318; 
 
 ed.),§§ 313-315; Boston w. Richardson, 13 Brainard v. Boston & New York Central 
 
 Allen, 146, 152, 153 ; Newhall v. Iveson, 8 R. R. Co. 12 Gray, 407 ; Phillips v. Bow- 
 
 Cush. 597 ; Chatham v. Brainerd, 11 Conn, ers, 7 Gray, 21, 24, 25 ; Sibley v. Holden, 
 
 90 ; Fisher v. Smith, 9 Gray, 441, 444 ; 10 Pick. 249.] 
 
 [26] 
 
CH. I. § II.] LEASES. TRADES. 39 
 
 to prove that the wall was. reputed to belong to the property of 
 the other purchaser. (6) 
 
 30. The reading the lease at the auction by the auctioneer, is, 
 as we have seen, no excuse for a misdescription of the terms of 
 the lease in the particulars of sale.(c) 
 
 31. And where a lease is sold by auction, the purchaser is not 
 bound to complete his purchase if any part of the buildings de- 
 raised has been removed, although he heard the lease read, and 
 the particulars did not comprise the building in question. (c/) 
 
 32. Although it be stipulated that no further evidence of iden- 
 tity of parcels shall be required, yet such proof may be required, 
 if the descriptions in the title-deeds differ from each other, and 
 from the particulars of sale.(e) 
 
 33. And where the original lease contained a power of re- 
 entry if certain trades were cabled on, and the lessee granted 
 under-leases containing no such stipulatiori, and upon a sale by 
 the assignee of the original lessee, the conditions of sale stated 
 the covenant in the original lease, and that such covenant would 
 be inserted in the under-leases to be granted to the purchasers, 
 but no mention was made whether the covenant was inserted in 
 the under-leases already granted, the purchaser was allowed to 
 recover his deposit.(/) Where there was no misrepresenta- 
 tion, but the ground rent was said to be amply secured, * a gen- 
 eral condition binding the purchaser to the terms of the lease, 
 with a power to inspect it, was held to be binding, although 
 the legal effect of the instrument upon the right to distrain was 
 not stated, (g-) 
 
 34. But although a purchaser must not be misled, and al- 
 though, as we have seen, the reference to a lease binds him, (A) 
 yet unusual covenants should be stated in the conditions.(A^) 
 
 (t) Murley v. MTJermott, 3 Nev. & Per. 39 ; see Flight v. Booth, 1 Bing. N. C. 370, 
 356 ; 8 Ad. & El. 138. inf. 
 
 (c) 1 Bing. N. C. 379 ; James v. Edney, (^r) Smith v. Watts, 4 Drew. 338. 
 
 sup. ; Paterson v. Long, 6 Beav. 590 ; Man- (A) Sup. p. 9 ; Paterson v. Long; 6 
 
 ser V. Back, 6 Hare, 443 ; Geoghegan v. Beav. 590. 
 
 Connolly, 8 Ir. Ch. Rep. 598. (Ai) [For cases showing what are usual 
 
 (d) Granger v. Worms, 4 Camp. 83 ; see covenants, see Bennet v. Womack, 7 B. 
 1 Bing. N. C. 379 ; Xomkins u.'White, 3 & C. 627 ; Bradbury v. Wright, 2 Doug. 
 Smith, 435. 624 ; Haines v. Burnett, 27 Beav. 500 ; 
 
 (c) Flower v. Hartopp, 6 Beav. 476. Kendall v. Hill, 6 Jur. N. S. 968 ; Parish 
 
 (/) Waring v. Hoggart, 1 Ry. & Mo. v. Sleeman, 1 De G., F. & J. 326 ; Thomp- 
 
 [27] 
 
40 MISDESCEIPTIONS. [CH. I. § II. 
 
 35. Yet where the agreement was to sell the lease of a public 
 house, described as held at a certain net annual rent under com- 
 mon and usual covenants, it was held that the contract was bind- 
 ing upon the purchaser, although the lease contained a covenant 
 to pay the land tax, sewer's rate, and all other taxes, and a pro- 
 viso for reentry if any business but that of a victualler should 
 be carried on in the house.(i) 
 
 36. So where the estate was described as fen land,(&) and the 
 taxes which the landlord allowed to the tenant were stated, but 
 there was no statement of the taxes which the tenant paid in 
 common with other tenants of fen land, the purchaser did not 
 obtain a compensation.(Z) 
 
 37. But if there be a misrepresentation, of course the purchaser 
 would be entitled, according to the circumstances, to compensa- 
 tion, or to avoid or resist the contract. 
 
 38. Where the particulars did not state that the annuity offered 
 for sale, which was payable out of the tolls of Waterloo Bridge, 
 was, as in fact it was, redeemable, and the bridge act had no 
 such provision, the purchaser recovered his deposit, for sellers 
 should be strictly bound to disclose the real nature of the subject 
 of the contract.(m) 
 
 39. So where leasehold houses were sold by auction and de- 
 scribed as a well secured rental for about fifteen years, with re- 
 versionary interest, and no notice was taiien of an act of parlia- 
 ment which gave power to a company to purchase the property, 
 the purchaser was not bound by the sale, for he did not contract 
 for the mere right to compensation. (?i) 
 
 40. Where a house was sold by the court, and described to be 
 in the occupation of A., at a rental of 42/. per annum, and it was 
 stipulated that the purchaser should be entitled, on payment 
 of his purchase money, to the rents from the next quarter day, 
 and it appeared that A. was not the tenant of the vendors, 
 but was in occupation adversely to them, the purchaser was 
 
 sail V. Lapworth, L. K. 3 C.P. 149 ; Buck- [I) See Lord Townsend v. Granger, 2 
 
 land o. Papillon, L. E. 1 Eq. 477 ; L. E. Sim. 436 ; Pope v. Garland, 4 Yo. & Col. 
 
 2 'Ch. Ap. 67.] 394. 
 
 (i) Bennet v. Womack, 7 B. & C. 627 ; (m) Coyerley v. 'Bmi-eW, post, ch. 8. 
 
 1 Mad. & Ey. 644. (n) Ballard v. Way, 1 M. & W, 520. 
 
 (k) Barraud v. Archer, 2 Sim. 433; 2 
 Eus. &My. 751. 
 
CH. I. § II.J CONDITIONS ABOUT MISDESCRIPTIONS. 41 
 
 released from his contract, ' although the vendors offered to bring 
 an ejectment against A. in case of her refusal to attorn.(o) 
 
 41. And where a lot was described as a wood- generally, yet 
 an incorrect statement in the particulars of the average size of 
 the trees prevented the seller from enforcing the contract, even 
 with a compensation under the common condition, because there 
 was no representation as to the number of trees.(/>) 
 
 42. " Clear" yearly rent, in an agreement between buyer and 
 seller, means clear of all out-goings, incumbrances, and extraor- 
 dinary charges, not according to the custom of the country, as 
 tithes, poor-rates, church rates, &c., which are natural charges 
 on the tenant.(^) 
 
 43. It is common for sellers to guard against misdescriptions 
 and errors by an express condition that they shall not annul the 
 sale, but that a compensation shall be given for the difference in 
 value. Such a condition, however, does not extend to fraudulent 
 errors. Where the estate was stated in the particulars to be 
 about one mile from Horsham, a boroiigh town, and it was be- 
 tween three and four miles from that place, it was ruled that 
 the condition was meant to guard against unintentional errors, 
 not to compel the purchaser to complete the contract if he had 
 been designedly misled, and the purchaser recovered his de- 
 posit.(r) 
 
 44. So where the net annual rental of a leasehold underlet 
 was represented to be 47i. 18s., whereas it was only SI., this was 
 
 (o) Lachlan v. Reynolds, 1 Kay, 52. bers, 11 C. B. 996 ; Cordingley u. Cheese- 
 
 (p) Lord Brooke a. Rownthwaite, 5 borough, 8 Jur. N. S. 585, 755. But the 
 
 Hare, 298. common general condition that any mis- 
 
 (}) Earl of Tyrconnel v. Duke of An- statenaent or omission in the particular 
 
 caster, Amb. 237 ; 2 Ves. 500. There shall not avoid the sale, nor shall any 
 
 was then no tithe rent-charge. compensation be claimed either by the 
 
 (r) Duke of Norfolk v. Worthy, 1 Camp, vendor or purchaser in respect thereof, 
 337 ; before the reform act. Fenton v. has been held to apply only to trivial 
 Brown, 14 Ves. 144; 1 Ves. & Be. 377; errors; and not to preclude a purchaser 
 Stewart v. Alliston, 1 Mer. 26 ; Trower v. from the right to compensation for a 
 Newcome, 3 Mer. 704. [Instead of the material deficiency in the quantity stated ; 
 usual condition providing for compensa- Whitemore v. Whitemore, W. N. (1869), 
 tion in the event of any omission, or mis- 214 V. C. M. ; or from avoiding the con- 
 description in the particular, a condition tract where the misdescription is of such a 
 is frequently inserted that in such a case nature as not to be a fit subject for corn- 
 no compensation shall be allowed by the pensation. 1 Dart V.& P. (4th Bng. ed.) 
 vendor; as to which, see NicoU u. Cham- 130.] 
 
 [28] 
 
42 CONDITIONS OF MISDESCRIPTIONS. [CH. I. § II. 
 
 held not to be a mere misdescription, and even if it were by mis- 
 take, it was one to tiie advantage of the party making it, which, 
 in law, vitiates a contract. The only question was whether the 
 description was false. The seller was bound to know what it 
 was, as he professed to state it, and to state it truly. , It was 
 immaterial whether he misstated it wilfully, if he stated it 
 falsely, (s) 
 
 45. In Stewart v. Alliston,(<) where a lease at rack-rent was 
 described as one at a ground-rent, Lord Eldon treated the case 
 just as if there had been no such condition as above. The 
 subject of the contract, he observed, did not answer the ven- 
 dor's description of it, and that in a point, so material as to ex- 
 clude the doctrine of compensation. And where the sale was 
 of an original lease, and the title was to a derivative lease 
 three days short of the original term, a condition *that no error 
 or misstatement of the term of years or other description should, 
 vitiate the sale, but should be a subject of compensation, was 
 disregarded. (m) So such a clause does not extend to the case 
 of the estate turning out to be freehold, although sold as copy- 
 hold. (a;) And the sale of " a freehold ground-rent issuing out 
 of houses let on lease," was held not to be binding on the 
 purchaser, because, in consequence of the term in the demise 
 reserving the rent having exceeded the term originally granted 
 to the then lessor, there was no right to distrain. (y) But 
 where an elaborate condition (which it requires some study to 
 follow) stipulated that the purchaser was not to object, amongst 
 many other things, to the term granted by a later lease being in 
 excess of ^the terms granted by prior leases, inasmuch as the 
 leases, &c., might be inspected ten days before the sale at the 
 solicitor's office, and the purchaser was to be deemed to buy with 
 full notice, whether he made an inspection or not ; the purchaser 
 was compelled to complete the purchase.(^) 
 
 i 
 
 (s) "Wood V. Keep, 1 Fos. & Pin. 331 ; where the question was, whether the seller 
 
 "Wood V. Scarth, 1 Fos. &.Fiii. 293. had the reversion. ■ 
 
 (t) 1 Mer. 26 ; see 1 De G. & Sm. (u) Madeley v. Booth, 2 De G. & Sm. 
 
 609 ; Price v. Macaulay, 2 De G., M. & G. 718. 
 
 339 ; Darlington v. Hamilton, 1 Kay, 550; {x) Ayles v. Cox, 16 Bear. 23. 
 
 consider Bartlett v. Salmon, 1 Jur. N. S. (y) Langford v. Selmes, 3 K. & J. 220. 
 
 277 ; reversed, 6 De G., M. & G. 33, post ; (z) Re Clapperton's Est. 32 L. T. 190 ; 
 
 Lecoy v. Mogford, 2 Jur. N; S. 1084, Smith v. Watts, 4 Drew. 338. 
 
 [29] 
 
CH. I. § II.J MISDESCRIPTIONS : BRICK BUILT. 43 
 
 46. In Powell v. DoubbIe,(o) a house was described in the 
 particulars of sale as a brick-built dwelling-house ; although it 
 was built partly of brick and partly of timber, and some parts of 
 the exterior were composed of only lath and plaster, and there 
 was no party-wall to the house. Shortly after the sale the an- 
 cient chimneys fell inwards through the house, but it was not 
 proved to what this was attributable. There was the usual con- 
 dition, that misdescriptions should be the subject of allow£^nce. 
 The case was heard upon bill and answer, and the bill was dis- 
 missed with costs ; as the vice chancellor was of opinion that 
 such a description means that the house was brick-built in the 
 ordinary sense, and that it was not a subject for compensation. 
 But where a small house was described as substantial and con- 
 venient, and containing five bedrooms, and it was proved that it 
 was substantially built with materials of the usual average qual- 
 ity, the purchaser was held bound by the contract, although there 
 were some cracks in the external walls, and one of the latter 
 was only half a brick thick, and some of the' bedrooms were 
 very small inner rooms, and there was no fire-place in one of 
 them. (6) 
 
 47. And even at law, if the description be of property not 
 wholly belonging to the seller, and the part not belonging to 
 him is an essential part, the case will not fall within the con- 
 dition, although there be no fraud, but mere error; neither can 
 a purchaser be compelled to take another property, with a 
 compensation, in lieu of that by error described in the par- 
 ticulars ; (b^) " as where the particulars stated one of the houses 
 to be No. 4 instead of No. 2, although the names* of the oc- 
 cupiers were correctly stated, and the houses Nos. 2 and 4 
 were of the same description, but the latter was in rather better 
 repair than the former, the purchaser recovered his deposit,(c) 
 notwithstanding the usual condition. So where, upon a sale by 
 auction, with the above mentioned condition, the house was 
 leasehold, but a small yard mentioned in the particulars was not 
 
 (o) MS. V. C. 15 June, 1832. (c) Leach v. Mullett, 3 C. & P. 115 ; 
 
 (6) Jolinson v. Smart, 2 Giff. 151 ; [6 see Preer u. Hesse, 1 Eq. R. 336 ; 2 Eq. 
 
 Jur. N. S. 815.] R. 13 ; 4 De G., M. & G. 495 ; which can- 
 
 (51) [See Graham o. Hendren, 5 Munf. not, it seems, be supported where the title 
 
 185 ; Reed v. Hornback, 4 J. J. Marsh, to a material part is defective. 
 375.] 
 
 [30] 
 
44 MISDESCKIPTION : WAYS : WATEE. [CH. I. § II. 
 
 included in the lease, but was lield from year to year at a sepa- 
 rate rent; although it did not appear that the sellers, who had re- 
 cently acquired the premises, were aware of the fact ; yet, as the 
 yard was proved to be an essential part of the premises, the de- 
 fect was not deemed a matter of compensation. (c?) 
 
 48. And wherever there is a substantial misdescription, it will 
 not fall within the condition. Therefore, where (e) the premises 
 were de'scribed as calculated for an extensive business in carpets, 
 haberdashery, drapery, paper, floor-cloth, upholstery, grocery, 
 tea-trade, or coach-building, and were situated in the Piazza, 
 Covent Garden, and it was stated, " that no offensive trade is to 
 be carried on, they cannot be let to a coffee-house keeper, or 
 working hatter," with the usual condition as to mistakes, &c. 
 The proviso for reentry extended, amongst other things, to the 
 premises being used for various specified trades, or as a shop or 
 place for the sale of any provisions whatever. And it was held 
 that the purchaser might rescind the contract, although the case 
 was clear from ftaud. ' 
 
 49. And in the case of Dykes v. Blake,(/) already referred to, 
 where a right of way over the lot sold was not described so as 
 to bind the purchaser, there was the usual condition as to mis- 
 descriptions, &c., and the lot was described as " a first-rate build- 
 ing plot of ground," and as having an extended frontage ; and 
 it was held that this was not a subject of compensation within 
 the condition, for the deviation of the way would render the close 
 useless for building purposes. 
 
 50. Where the lot was described, " together with the reservoir 
 and water-works, and valuable supply of water contained in this 
 lot, which, exclusive of the land and buildings, now yields a 
 rental of about 601." and this rent was obtained by means of an 
 easement over other persons' land to which there was no title, 
 the purchaser was held not to be bound. (g-) If the statement 
 is not the true representation of a fact, the purchaser will not 
 be bound ; therefore, where the sale was of a dwelling-house 
 and factory, in the latter of * which was a steam-engine with 
 
 {d) Dobell V. Hutchinson, 3 Ad. & El. (/) Sup. ; 4 Bing. N. C. 476 ; Shackle- 
 
 355 ; MUls v. Oddy, 2 Cr. & M. 103. ton v. SutclifFe, 1 De G. & Sm. 609. 
 
 (e) Elight V. Booth, 1 Bing. N. S. 370; (jr) Price v. Macaulay, 2 De G., M. & G. 
 
 VignoUes v. Bowen, 12 Ir. Eq. E. 194. 339. 
 
 [31] 
 
CH. I. § II.J MISDESCRIPTIONS WITHOUT FRAUD. 45 
 
 boilers, and the particulars stated that the property was well 
 supplied with water, which it appeared could only be obtained 
 from a water company for a considerable rate, the purchaser, 
 asking either for a release or for compensation, and the seller 
 electing to discharge him, was released, and all his costs were 
 paid by the seller.(A) 
 
 51. And although there be the condition providing a compen- 
 sation, yet the sale will be void if from the nature of the case no 
 estimate can be made of the diminution in value. As where a 
 reversion was sold after the death of a person aged sixty-six, in 
 case he should not have children, and it turned out that he was 
 only sixty-four, the sale was held to be void.(i) 
 
 52. Of course in all the cases which we have just been con- 
 sidering, where the contract has been held not binding on the 
 purchaser, although there was a compensation clause, the rule 
 would apply more clearly in his favor where there is no clause 
 as to compensation. 
 
 53. A difference of opinion has prevailed upon this general 
 point, namely, whether a misdescription in an important respect 
 is fatal where it is occasioned by carelessness or error, and not 
 by fraud ; {k) but the strong leaning is properly against the seller 
 where the misdescription is an important one, and not fairly a 
 subject for compensation. Nor can the onus of proving the 
 fraud altogether be thrown upon the purchaser where there is a 
 gross misdescription. For gross negligence may well be held 
 tantamount to fraud, where a seller issues an actual description 
 of his property, and liniits his responsibility by such a condition, 
 and a jury would be warranted in coming to the conclusion that 
 
 (h) Leyland v. Illingworth, 29 L. J. N. Hallett, L. E. 2 Ch. Ap. 21 ; Evans u. 
 
 S. 611, reversed 2 De G., F. & J. 248. Eobins, 10 Jur. N. S. 473, Ex. Ch. ; Leach 
 
 (}■) Sherwood v. Robins, I Moo. & Mai. v. Mjillett, 2 C. & P. 115 ; Robinson u. 
 
 194; 3 C. &P. 339; White o. Cuddon, 8 Musgrove, 2 Moo. & R. 92; Dykes v. 
 
 CI. & Ein. 766. Blake, 4 Bing. N. C. 463 ; Shackleton v. 
 
 , (t) Cases above quoted; Wright v. Sutcliffe, 1 De G. & Sm. 609; Leyland w. 
 
 Wilson, 1 Moo. & Ro. 207 ; 6 C. & P. 734; Illingworth, 6 Jur. N. S. 811 ; S. C. 2 De 
 
 Mills V. Oddy, 6 C. & P. 728 ; Wood v. G., F. & J. 248 ; Price v. North, 2 Y. & C. 
 
 Keep, 1 Eos. & Ein. 331. [See Ayles v. Ex. 620 ; Earl of Durham v. Legard, 34 
 
 Cox, 16 Beav. 23 ; Price v. Macaulay, 2 Beav. 611 ; Lord Brooke v. Rownthwaite, 
 
 De G., M. & G. 339 ; Madeley v. Booth, 2 5 Hare, 298 ; Ridgway v. Gray, 1 Mac. & 
 
 De 6. & Sm. 718 ; Law v. Urlwin, 16 Sim. G. 109 ; Smithson v. Powell, 20 L. T. 104 ; 
 
 377 ; Bartlett v. Salmon, 6 De G., M. & G. Hughes v. Jones, 3 De G., E. & J. 307.] 
 33 ; S. C. 1 Jur. N. S. 278 ; Dimmock v. 
 
46 TIMBER. FIXTURES. [CH. I. § II. 
 
 there was fraud, from the facts, namely, the means of knowledge, 
 the duty imposed upon the seller to use due diligence, the de- 
 scription varying in important matters from the actual state of 
 the property, and the tendency of the misdescription to mislead 
 a purchaser whom it may be said compensation would not com- 
 pensate. The purchaser has a right to presume that the seller is 
 acting bond fide, and has used due diligence. The condition, as 
 the court observed in Flights. Booth, will comprehend a case 
 where there is half an acre, more or less, than is described, or 
 cases which resolve themselves into simple cases of that na- 
 ture.(Z) This is no doubt clearer, where the condition provides 
 for a compensation to be paid to either the purchaser or the 
 seller, as the case may be, than where it applies only to a 
 compensation to the purchaser; for the former condition, which 
 is the usual one, forbids the construction that the seller is, 
 by gross negligence, to misdescribe the property and then to 
 claim an additiohal * price for some advantage which he has 
 omitted to mention ; and the like construction must prevail, 
 whether the compensation be payable to the purchaser or to 
 the seller. But, on the other hand," the whole of the description 
 is to be taken into consideration so as to see whether the pur- 
 chaser, if he have not the subject as described, has not obtained 
 in other respects greater advantages than were held out to 
 him. (to) 
 
 54. Where the timber and other trees are to be taken by the 
 purchaser at a valuation, it should be stated accurately for what 
 trees he is to pay. In a case where there were several lots, it 
 was stated after two of them, that the timber on them was to be 
 paid for. The particulars were silent as to the timber on the 
 other lots, which was of considerably greater value ; but there 
 was a general condition that all the timber and timber-like trees 
 down to one shilling per stick inclusive, should be taken at a val- 
 uation. The purchaser of the lots, to which no statement was 
 annexed, claimed the timber without paying for it ; and the court 
 thought that a purchaser might be so fairly impressed with that 
 idea, notwithstanding the general condition, that it refused to 
 
 (I) 1 Bing. N. C. 378. (m) White v. Cuddon, 8 CI. & Fin. 766 ; 
 
 Sugd. H. of L. 589. 
 
 [32] 
 
CH. I. § II.] TIMBEE. FIXTURES. 47 
 
 compel him to perform the contract according to the seller's con- 
 struction, (w) 
 
 55. But although it should be merely stipulated that the pur- 
 chaser shall pay for timber, yet he must pay for trees not strictly 
 timber, if considered such according to the custom of the coun- 
 try ; (o) and in one case, where by the condition it was expressed 
 that all timber and timber-like trees should be taken, at a valua- 
 tion, the purchaser was held liable to pay for certain pollards.(p) 
 Where the average size of the trees is misstated, but the number 
 is not stated, the sale is invalid,, as there can be no compensa- 
 tion, (g) 
 
 56. In a case where an estate, part freehold and part copy- 
 hold, was sold in lots, with a condition compelling the purchasers 
 to take the title without inquiry as to which parts were of either 
 tenure, and a valuation was placed on the timber in each lot, 
 which the purchasers were to pay; the contracts were deemed to 
 be joint ones for the land and timber, and a purchaser was held 
 bound to pay for the timber, although no right to cut it was 
 shown on any portion which might turn out to be copyhold,(r) 
 and this was even extended to a purchaser of a lot which in- 
 
 - eluded copyholds only.(s) 
 
 57. Where a purchaser bought a term of ninety-nine years 
 without impeachment of waste (created by will to raise by sale 
 certain sums), * subject, by the conditions of sale, to the rights 
 of all parties under a proviso in the will, and the proviso pro- 
 hibited the felling of timber until a granddaughter attained 
 twenty-one, when the trustees might fell and sell the timber, 
 and pay the price to her ; it was held that the proviso did not 
 affect the purchaser, who might fell the timber for his own ben- 
 efit; and the conditions of sale were construed to mean that 
 the purchaser was to take, subject to such rights (if any) as 
 the gran(Jdaughter was entitled to under the proviso in the 
 will.(«) 
 
 (n) Higginson v. Clowes, 15 Ves. 516. (q) Lord Brooke ;;. Eownthwaite, 5 
 
 (o) Duke of Chandos v. Talbot, 2 P. Ilare, 298. 
 
 Wms. 601 ; Anon. Ch. 25 July, 1808. See (r) Crosse v. Lawrence, 9 Hare, 462. 
 
 Gordon v. Woodford, 6 Jur. N. S. 59. (s) Crosse v. Keene, 9 Hare, 469, which 
 
 {p) Rabbett v. Eaikes, Woodfall L. & consider. 
 
 T. 224 (6th ed.) ; Aubrey v. Tisher, 10 (i) Watlington v. "Waldron, 23 L. J. N. 
 
 East, 446. S. 713. 
 
 [33] 
 
48 
 
 FIXTURES. 
 
 [CH. I. § II. 
 
 58. It is proper, also, to make some provision as to articles 
 not properly fixtures. Lord Hardvvicke said that if a man sells 
 a house where there is a copper, or a brew-house where there are 
 utensils, unless there was some consideration given for thena, and 
 a valuation set upon them, they would not pass.(M) But in the 
 absence of any stipulation, common fixtures would pass to the 
 purchaser under the common conveyance,(a;) unless it could be 
 
 {u) Ex parte Quince-y, I Atii.i78. [See 
 Williams u. Bailey, 3 Dana, 152; Free- 
 land V. Sonthworth, 24 Wend. 191 ; Green 
 «. First Parish in Maiden, 10 Pick. 504 ; 
 Goddard u. Chase, 7 Mass. 432 ; GafiSeld 
 u. Hapgood, 17 Pick. 192; Gray v. Hold- 
 ship, 17 Serg. & R. 415 ; M'Clintock v. 
 Graham, 3 M'Cord. 553 ; Olympic Theatre, 
 2' Browne, 279, 285 ; Kirwan v. Latour, 1 
 Harr. & J. 284.] 
 
 {x) Colegrave v. Dias Santos, 2 Bar. & 
 Ores. 76 ; Ex parte Lloyd, 1 Mont. & Ayr. 
 494 ; Longstaff u. Meagoe, 2 Ad. & El. 
 167; Hitchmau v. WaJton, 4 M. & W. 
 409; Wilde v. Waters, 16 C. B. 641; 
 Mather v. Fraser, 2 K. & J. 536 ; Water- 
 fall V. Penistone, 6 E. & B. 876 ; Williams 
 V. Evans, 23 Beav. 239; Hutchinson u. 
 Kay, 76. 413 ; Shai-p v. Milligan, lb. 419 ; 
 Walmsley v. Milne, 7 C. B. N. S. 115; 
 Haley v. Hammersley, 7 Jur. N. S. 765, 
 [Chitty Contr. (10th Am. ed.) 375-385; 
 2 Kent (11th ed.), 343, et seq. & notes; 
 Fisher u. Dixon, 12 CI. & Fin. 312; 2 
 Smith Lead. Cas. {5th Am. ed.) 254, 255, 
 and cases cited ; Tuttle v. Robinson, 33 N. 
 H. 104; State v. Elliot, 11 N. H. 540; 
 Weston V. Weston, 102 Mass. 514 ; Bliss v. 
 Whitney, 9 Allen, 114; Bainway v. Cobb, 
 99 Mass. 457 ; Miller «. Plumb, 6 Cowen, 
 665 ; Walker v. Shennan, 20 Wend. 636 ; 
 Farraru. Stackpole, 6 Greenl. 157 ; Blethen 
 V. Towle, 40 Maine, 310; Pulleu w. Bell, 
 40 Maine, 314 ; Goodrich v. Jones, 2 Hill, 
 142 ; Wilkins v. Vashbinder, 7 Watts, 
 264 ; Burnside v. Wightman, 9 Watts, 
 46; S. C. 2 Watts & S. 268. It is often 
 very difficult to determine what articles 
 are fixtures, properly so called, and what 
 are mere movable chattels. See the cases 
 above cited ; Ex parte Barclay, 5 De G., 
 
 M. & G. 403, and cases referred to, 410, & 
 note (1); Mather v. Fraser, 2 K. & J. 
 536. Trade fixtures, which have been an- 
 nexed to the freehold, not with a view of 
 improving the inheritance, but solely for 
 the purposes of trade, will, unless expressly 
 excluded, pass by a mortgage of the free- 
 hold. See Ex parte Cotton, 2 M., D. & De 
 G. 725 ; Cullwick v. Swindell, L. R. 3 Eq. 
 249; Climie v. Wood, L. R. 3 Exch. 257 ; 
 aflf'd L. R. 4 Exch. 328; Walmsley u. 
 Milne, 7 C. B. N. S. 115; Waterfall v. 
 Penistone, 6 El. & Bl. 876 ; Winslow v'. 
 Merchants' Ins. Co. 4 Met. 306 ; Voorhis 
 V. Freeman, 2 Watts & S. 116; Pyle v:' 
 Pennock, 2 Watts & S. 390 ; Day.u. Per- 
 kins, 2 Sandf. Ch. 359 ; Union Bank v. 
 Emerson, 15 Mass. 139. In a recent 
 case, looms, fastened to the floor of a 
 mill by nails driven into plugs of wood, 
 were held to pass as fixtures ; Boyd o. 
 Shorrock, L. R. 5 Eq. 72 ; so straighten- 
 ing plates, which were broad iron plates 
 imbedded in the floor for straightening 
 the iron when taken out of the furnace ; 
 Ex parte Astbury, L. R. 4 Ch. Ap. 630 ; 
 so greenhouses constructed of wooden 
 frames, and affixed by mortar to a foun- 
 dation of brick-work, have been held to be 
 fixtures; Jenkins v. Gething, 2 J. & H. 
 520 ; so a kettle in a fulling-mill set in 
 brick-work; Union Bank v. Emerson, 15 
 Mass. 139 ; Despatch Line of Packets u. 
 Bellamy Manuf. Co, 12 N. H. 233; so 
 dye kettles set up in a dye-house, and 
 firmly secured therein in brick-work ; No- 
 ble V. Bosworth, 19 Pick. 314 ; so an 
 iron stove fixed to the brick -work of the 
 chimney of a house ; Goddard u. Chase, 7 
 Mass. 432 ; so windows in a dwelling- 
 house are fixtures; State v. Elliot, 11 N. 
 
CH. I. § II.] 
 
 FIXTURES. (II \ , I \\ 
 
 49 
 
 collected from the context that they were not intended to pass ; 
 as if a conveyance be made of an iron foundry and a dwelling- 
 house, together* with all grates, boilers, bells, and other fixtures 
 in and about the dwelling-house; the enumeration of the fix- 
 
 H. 540; fencing materials on a farm, 
 which have been used as a part of the 
 fences, but have been temporarily de- 
 tached ; Goodrich v. Jones, 2 Hill, 142 ; 
 so also, a plate-glass shop-front, fixed 
 merely by wooden wedges, and capable of 
 being removed without injury to the free- 
 hold ; Burt II. Haslett, 25 L. J. C. P. 295 ; 
 2 Jur. N. S. 974; so, tapestry stretched 
 on wooden frames affixed to the walls, 
 but capable of being readily removed; 
 D'Eyncourt v. Gregory, L. E. 3 Eq/ 382. 
 Other articles, though in some measure 
 attached to the freehold, have been held 
 not to pass by a conveyance of it, — such 
 'as a stove, with a funnel running into a 
 chimney ; Williams v. Bailey, 3 Dana, 152 ; 
 Freeland v. Southworth, 24 Wend. 191 ; 
 Green v. First Parish in Maiden, 10 Pick. 
 504; Gaffield v. Hapgood, 17 Pick. 192; 
 Gray v. Holdship, 17 Serg. & B. 415 ; so 
 looms, the legs of which were merely 
 dropped into holes made in the floor, 
 ^without any substantial annexation to the 
 freehold,; Hutchinson v. Kay, 23 Beav. 
 413; so where weighing machines were 
 sunk into holes lined with brick-work, so 
 as to make the weighing plate level with 
 the surface of the ground, but were ,not 
 fixed to the brick-work, they were held not 
 to be fixtures ; Ex parte Astbury, L. R. 4 
 Ch. Ap. 630. But not every annexation 
 to the freehold is a fixture ; nor on the 
 other hand is a fixture, or an article 
 deemed to be such, necessarily fastened 
 to the freehold. Doors, window-blinds, 
 and shutters, capable of being removed 
 without the slightest damage to a house, 
 and even though, at the time of convey- 
 ance, actually detached, would be deemed 
 part of the house and pass with it; while 
 mirrors, wardrobes, and other heavy arti- 
 cles of furniture, though fastened to the 
 wall by screws with considerable firmness, 
 would not be so deemed ; Winslow v. Mer- 
 VOL. I. 4 
 
 chants' Ins. Co. 4 Met. 314. Statues, or- 
 namental vases, and stone garden-seats, re- 
 taining their position merely by their own 
 weight, but forming part of the architect- 
 ural design of the mansion and grounds, 
 have been held to be fixtures ; D'Eyncourt 
 V. Gregory', L. R. 3 Eq. 382 ; so, a cotton- 
 gin attached to the gears in a gin-house 
 upon a cotton plantation ; Farris v. 
 Walker, 1 Bailey, '540 ; so of a packing 
 screw; M'Daniel v. Moody, 3 Stewart, 
 314; so a steam-engine with its fixtures, 
 used to drive a 1jark mill and pounders, to 
 break hides in a tannery, erected by the 
 owner ; Ives v. Ogelsby, 7 Watts, 106 ; so 
 a steam-engine, boilers, &c., and machinery 
 adapted to be moved by such engine, by. 
 means of connecting Tiands, and other gear- 
 ing, which are placed in a building, de- 
 signed for the manufacture of steam-en- 
 gines and heavy iron work ; Winslow v. 
 Merchants' Ins. Co. 4 Met. 306 ; see also 
 Despatch Line of Packets v. Bellamy 
 Manuf. Co. 12 N. H. 205 ; Voorhis v. 
 Freeman, 2 Watts & S. 116; Pyle v. 
 Pennock, 2 Watts & S. 390 ; Day v. Per- 
 kins, 2 Sandf. Ch. 359. An ii'on manu- 
 facturer made an equitable mortgage of 
 his rolling-mills, of which he had a lease, 
 and shortly afterwards became banki-upt. 
 Besides the fixed machinery, the mills 
 contained a large number of duplicate 
 iron rolls of various sizes made to be fit- 
 ted into the machine, and used for differ- 
 ent sizes of iron ; some of these were fit- 
 ted to the machine, and had been used, 
 and others had, not yet been fitted ; as be- 
 tween .the mortgagees and the assignees, it 
 was held, that snch>of the rolls as had been 
 fitted to the machine were fixtures, and 
 passed to the mortgagees ; but that such 
 of the rolls as had not been fitted to it, 
 were not fixtures, and belonged to the 
 assignees. Ex parte Astbury, L. R. 4 Ch. 
 Ap. 630.] 
 
50 :,:'■'' DEEDS : COPIES. [CH. I. § II. 
 
 tures in the house will prevent the fixtures in the foundry from 
 passing.(j/) If the seller sell only his lease and the fixtures be- 
 longing to him, the assignment must be so con£ned ; (2^) but a 
 conveyance of an estate with the fixtures will receive a liberal 
 interpretation. (a) 
 
 59. If a seller wish to protect himself against the production 
 of deeds not in his possession, he must state distinctly his in- 
 tention, for a condition that the seller should deliver an abstract 
 and deduce a good title was held to authorize the purchaser to 
 require the deeds to be produced to verify the abstract, although 
 they were not all in the seller's possession; and although in 
 the condition to deliver up to the purchaser all the title deeds 
 and copies of deeds or other documents in the seller's custody, 
 it was expressed, " but that he should not be bound to produce 
 any original deed or other documents than * those in his pos- 
 session and set forth in the abstract;" for it by no means fol- 
 lows that the vendor cannot prove his title because, he has not 
 in his possession all the deeds necessary for that purpose.(6) 
 And such a condition as to the deeds and the expense of ofiice 
 copies, &c., with a condition that the seller should not be com- 
 pelled to produce any original title deeds or other documents 
 not in his possession or custody, was held'not to compel a pur- 
 chaser to complete, where a third person who held some of the 
 deeds refused to produce them to the purchaser.(c) 
 
 60. Where the case was considered to amount to this — that 
 land had been divided off into lots for sale, and the condition 
 was that as soon as the whole of the property should have been 
 sold, the purchaser of the largest lot should be entitled to the 
 possession of the title deeds, the court held "largest lot" to 
 mean the largest quantity of land. The condition did not refer 
 to the largest in value, and, in fact, it would be unnecessary to 
 
 {y) Hare v. Horton, 5 Bar. & Ad. 715. De G., M. & G. 403, in bankruptcy; see 
 
 See Birch v. Dawson, 2 Ad. & El. 37, a Snell v. Bickley, 2 Tos. & Fin. 56, as to 
 
 case upon a will ; Petrie v. Dawson, 2 Car. misrepresentation ; Wilson v. Whateley, 1 
 
 & Kir. 138, as to trade fixtures. John. & H. 436, reservation in a lease. 
 
 {z) Manning v. Bailey, 2 Ex. 45. See 9 , (b) Southby v. Hutt, 2 My. & Cra. 207- 
 
 Hare, 468 ; Cotton v. Scudamore, 1 K. & (c) Osborne v. Harvey, 7 Jur. 229 ; 1 Y. 
 
 J. 321, inf. Sc Col. C. C. 116, on another point; Ga- 
 
 (o) Wiltshear v. Cottrell, 17 Jur. 758; briel v. Smith, 16 Q. B. 847. 
 [1 El. & Bl. 674.] See Ex parte Barclay, 5 
 
 [34] 
 
CH. I. § II.] SEARCHES. COVENANT' TO P]iOE?udB.. 61 
 
 stipulate that the purchaser of the lot largest in value should 
 have the custody of the deeds, because the law would give him 
 that right in the absence of any stipulation.(rf) The objection 
 to this construction is, that where quantity, and not value, is in- 
 tended, the seller could by his condition at once point out the lot 
 to which the deeds were to be attached ; where it depends upon 
 value, that must await the sale ; and many conditions only state 
 the general rule. The condition, where it is intended that the 
 largest purchase should carry the right to the deeds, should al- 
 ways be inserted, although, of course, care should be taken to 
 refer to largest value. Lord Eldon decided that, under a condi- 
 tion that the purchaser of the largest lot was to be entitled to 
 the custody of the title deeds, the purchaser of the largest lot in 
 price was to have the titje deeds in preference to the purchaser 
 of several lots in the aggregate of greater value,(e) and this has 
 been followed in a recent case.(/) 
 
 61. There must be express conditions where the seller intends 
 to throw upon the purchaser the expense of searches, or the ex- 
 pense of travelling to a distant place to examine the abstract 
 with the deeds, or the like. 
 
 62. Where the title deeds cannot be delivered up, some pro- 
 vision should be made as to the expense of the attested copies, 
 and the covenants to produce them, which will otherwise fall 
 upon the vendor ; (§•) and where the estate is sold in many 
 lots, and the title-deeds are numerous, nearly the whole pur- 
 chase money may, perhaps, * be exhausted. In one case the 
 lots were more than two hundred, and the copies came to 
 2,000Z. 
 
 63. Where by the conditions the sellers were to deliver an ab- 
 stract, but one condition was that the vendor should not be re- 
 quired to produce any deeds, &c., not in their possession, and 
 that all deeds of covenant for production, and attested, &c., 
 copies of any deed, &c., which the purchaser should, subject to 
 that condition, require for verifying the abstract, or for any other 
 purpose, and all certificates, searches, and inquiries, &c., should 
 be respectively paid, made, searched for, and obtained by and at 
 
 (d) Griffiths V. Hatchard, 1 K. & J. 17. (/) Scott v. Jackman, 21 Beav. 110. 
 
 (e) Kinnaird w; Christie, 21 Beav. HI, (jt) Dare v. Tucker, 6 Ves. 460; Berry 
 "• V. Young, 2 Esp. 640, n. ; post, ch. 11, s. 6. 
 
 [35] 
 
52 COVENANT I to PHObuCE. EECEIPT OF TRUSTEE. [CH. I. §11. 
 
 the expense of the purchasers requiring the same. The abstract 
 was verified by the production of the deeds ; but some of the 
 deeds abstracted and material to the title were not in the posses- 
 sion of the vendors, and the holder refused to enter into a cove- 
 nant to produce tliem ; it was held that the purchaser was bound, 
 under the conditions, to complete his purchase without any cove- 
 nant to produce the deeds in question. (A) 
 
 64. Where a trustee for sale for the benefit of himself and 
 others sold under a condition that his receipt was to be deemed 
 an effectual discharge, and the purchaser should not be entitled 
 to require the concurrence of the cestuis que trust, and there was 
 the usual reference as to title, it was held too late on exceptions 
 to object to the condition as a breach of trust which,the court 
 upon a bill by the seller would not assist.(i) How the court 
 would have dealt with the objection if made at the hearing may 
 be open to doubt. In a case where it was stipulated that the 
 sole receipt of A. should be a good discharge to the purchaser, 
 the vice chancellor observed that if it were so framed. as to mis- 
 lead the purchaser, the court would not enforce it, and if the 
 enforcement of the contract would cause a breach of trust, the 
 court would not enforce it. (A) 
 
 65. In a later case,(/) where the fee had been conveyed in 
 1829 to thes hareholders in a company in one hundred shares 
 equal to their shares in the capital, upon a sale by auction under 
 a .winding up order, it was stipulated that the remainder, be- 
 yond the deposit of the purchase money, should be paid on a day 
 named, and the purchase then completed, and five per cent, inter- 
 est was to be paid in case of delay. The title was to commence 
 with the conveyance of the fee, but the purchaser was to accept a 
 conveyance of the entire property from the official manager, with- 
 out requiring the concurrence of any of the shareholders, or 
 any other person. If he required a conveyance of the legal es- 
 tate in the whole or part which he might consider outstand- 
 ing, * he was to bear the expense of obtaining a conveyance, 
 and incident to getting in the legal estate. It was held that 
 
 (h) Gabriel v. Smith, 16 Q. B. 847. (k) Groom v. Booth, 1 Drew. 548. 
 
 (t) Wilkinson v. Hartley, 15 Beav. 183. {I) Sheerness Waterworks Co. Off. Man. 
 
 See now 22 & 23 Vict. c. 35, ». 23 ; ch. 18, of, c. Poison, 29 Beav. 70 ; [3 De G.,.F. & 
 
 infra. J. 36.] 
 
 [36] 
 
CH. I. § u.] lessor's title. 53 
 
 the purchaser was bound to accept a conveyance at the day ap- 
 pointed of the equitable estate from the official manager alone, 
 and to pay the residue of the money, which, therefore, during 
 the delay carried five per cent, interest, and was not entitled to 
 require, although at his own expense, a conveyance of the legal 
 estate before he completed. But the official manager was bound 
 thereafter to procure, at the expense of the purchaser, such con- 
 veyance of the legal estate as the latter might require, and the 
 former be able to obtain. 
 
 66. A statement in the conditions of sale that' the property 
 was held under a se|ttlement on one for life,, with a trust for sale 
 at her death for her children, and that she being living, the three 
 children who were of age, or the assigns or trustees of such of 
 them who had aliened or settled their estates and interest, should, 
 if required, join, but no objection was to be made to the sale 
 being made during the life of the tenant for life, was held not to 
 bind the purchaser, as it appeared that two of the children had 
 settled their shares without any power in the trustees to concur 
 in the sale ; and the condition implied that the parties were com- 
 petent to concur.(»i) 
 
 67. But a statement that leaseholds were sold by order of the 
 executors, was held to mean legal personal representatives, and 
 that it was no misrepresentation, although they were not execu- 
 tors.(w) This, however, was overruled, and it was held that the 
 seller who was an administrator de bonis non of a surviving ex- 
 ecutor durante absentid, could not make such a title as could be 
 forced upon a purchaser, for the principal was abroad, and there 
 could be no certainty of his being alive when the assignment 
 should be made.{o) 
 
 68. If the estate is leasehold, and the vendor cannot procure 
 an abstract of the lessor's title, this fact should be stated in the 
 conditions.(^) Where a leasehold estate was sold as renewable 
 every twenty-one years, and there was a condition that the pur- 
 chaser should not require the production of the title of the lessor 
 or of the lord of the manor to deipise the customary portion of 
 the property, but should accept the existing lease and the assign- 
 
 {m) Mosley v. Hide, 17 Q. B. 103. (o) 7 De G., M. & G. 376. 
 
 (n) Webb v. Kirby, 3 Sm. & Gif. 333 ; {p) Post, ch. 11. See Denew v. Daverell, 
 [S. C. 7 De G., M. & G. 376.] 3 Camp. 451. 
 
54 INACCURATE CONDITIONS : LEASEHOLDS. [CH. I. § II. 
 
 ment of it to the vendor as a sufficient title to such customary 
 leasehold, and the purchaser was, within fourtpen days from the 
 delivery of the abstract, to specify in writing his objection to the 
 title, and the vendor was to be at liberty afterwards to vacate 
 the sale and to return the deposit, without interest, costs, or 
 other compensation, and there was the usual condition for com- 
 pensation in case of improper description of the estate, or of 
 any error or misstatement; it was held that the vendor was 
 not at * liberty to vacate the sale, although the lease was not 
 renewable, but that the purchaser was entitled to a compensa- 
 tion.(g') ^ 
 
 69. Where assignees of a bankrupt erroneously supposed that 
 they could sell the fee and contracted for the sale of it, and in 
 one of the conditions stated the particulars of their title, and 
 concluded that the bankrupt who had purchased of the assignees 
 his life estate " had been admitted tenant in tail in error, and the 
 assignees or commissioners having power to bar the entail and 
 all reversions and remainders over, and to sell the reversion in 
 fee, now proposed to sell the customary fee expectant on that 
 life," and by another condition the purchaser was not to require 
 the concurrence of the bankrupt, the purchaser was permitted to 
 object to the title, for it was stated as a positive and distinct 
 fact, that the assignees or commissioners had power to sell the 
 fee.(»-) 
 
 70. A purchaser of a leasehold estate must covenant with the 
 vendor to indemnify him against the rent and covenants in the 
 lease, although he is not expressly required to do so by the con- 
 ditions of sale; (s) and it will not vary the case that he is not 
 entitled to any covenants for title ; for example, where the sale 
 is by an executor of an assignee ; (t) but assignees of a bank- 
 rupt selling a lease which was vested in him, cannot require the 
 purchaser to' enter into such a covenant for their indemnity or 
 
 {q) Painter v. Newby; Newby v. Pain- equity of redemption to indemnify the ren- 
 ter, 11 Hare, 26 ; 1 Eq. E. 173. dor against the mortgage-money ; and see 
 
 (r) Johnson v. Smiley, 17 Bear. 223; 1 Brown v. Paull, 2 Jur. N. S. 317, as to the 
 
 Eq. Rep. 397. liability of the largest purchaser of a lease- 
 
 (s) Pember v. Mathers, 1 Bro. C. C. .'52 ; hold sold in lots to indemnify the other 
 
 Ex parte Little, 3 Mol. 67 ; Moxhay v. In- purchasers, and qu. the construction of the 
 
 derwick, 1 De G. & Sm. 708 ; post, ch. 5, condition in that case, 
 as to the obligation of a purchaser of an (t) Staines v. Morris, 1 Ves. & Be. 8. 
 
 [37] 
 
CH. I. § II.] COVENANTS REQUIRED FROM PURCHASERS. 55 
 
 the indemnity of the bankrupt.(M) A purchaser from trustees 
 who sold under a creditor's deed with a covenant from the owner 
 to assign the leaseholds to them, was compelled to enter into the 
 usual covenants with the owner for his indemnity, although the 
 assignment was made to a third person at the purchaser's request, 
 for he entered into the contract with the trustees who were selling 
 for the real owner.(a;) 
 
 71. And although a purchaser is not required by the conditions 
 to give an indemnity against the rent and covenants, and an 
 assignment is actually executed without one ; yet, even a verbal 
 agreement by the purchaser, before the sale, to secure such indem- 
 nity, will be carried into a specific execution. (^) 
 
 72. Where a vendor is only an assignee of a leasehold estate, , 
 and is not bound by covenant to pay the rent, and perform the 
 covenants in the lease, his liability to do so ceases upon his 
 assigning the estate * over,(z) and consequently, in such case, 
 there is not anything for a purchaser to indemnify against. 
 The assignee is liable to indemnify the lessee who assigned 
 to him against breaches during the time he {the assignee) is in 
 possession, although he has not covenanted to indemnify the 
 lessee,{ffl) but not further. (6) And where a purchaser from an 
 assignee of a lease agreed to take the estate without an as- 
 signment, and held it to the end of the term, he was held liable 
 to the lessee in equity for breaches of covenant during his posses- 
 sion, although the lessee was not a party to the contract for 
 sale.(c) But an assignment to hold subject to the payment of 
 the rent and to the performance of the covenants in the lease, 
 will not operate as a covenant so as to bind the assignee after 
 he has assigned over.(c?) And an equitable assignee of a legal 
 term of years under rents and covenants is not liable to be sued 
 
 (m) Wilkins v. Fry, 1 Mer. 244, post; Walker u. Bartlett, 17 C.B.440; 18 C.B. 
 
 Slack V. Sharpe, 8 Ad. & El. 366. 865. 
 
 {x) Morley v. Clavering, 7 Jur. N. S. (i) Mills v. Harris, 1 Nev. & P. 569, 
 
 904 ; see 29 Beav. 84. cited ; Beale v. Sanders, 3 Bing. N. C. 850. 
 
 (jf) Pember v. Mathers, 1 Brp. C. C. 52; (c) Close v. Wilberforce, 1 Beav. 112 ;' 
 
 post, ch. 4, B. 10. Moore v. Greg, 2 Phil. 717. 
 
 (z) 1 Treat. Eq. (2d ed.) 350, & note (d) Wolveridge v. Steward, 3 Nev. & 
 
 (y) ; Taylor v. Shum, 1 B. & P. 21 ; Fagg Scott, 561 ; see now 22 & 23 Vict. c. 35, 
 
 V. Dobio, 3 Y. & C. 96. s. 27, 28, for relieving executors, after a 
 
 (a) Burnett v. Lynch, 5 B. & C. 589 ; sale, from the liability to rents and cove- 
 nants. 
 
 [38] 
 
56 COVENANTS EEQUIEED FROM PURCHASERS. [CH. I. § 11. 
 
 by the landlord for rent which became payable, or for damages 
 for breaches of those covenants committed during his possession 
 and enjoyment under the equitable assignment, after his posses- 
 sion and enjoyment has ceased. (e) 
 
 72. Where a fee simple estate was sold subject to a restrictive 
 covenant against building, &c., but without any stipulation that 
 the purchaser should enter into a like covenant, it was held that 
 the purchaser could not enforce a specific performance without 
 entering into the covenant, but he had his election either to enter 
 into it, or to be relieved from the contract.(/) In a like case, 
 with the exception that the claim was filed by the vendor, and 
 the liability was not disclosed until after the contract, and the 
 purchaser waived objection but refused to -enter into any cove- 
 nant of indemnity, it was held that the parties stood in the same 
 position as if there had been an original disclosure, and the pur- 
 chaser was put to his election. (§•) The result is, that in such 
 cases the purchaser cannot enforce the contract without submit- 
 ting to enter into the covenant, whilst the seller cannot compel 
 the purchaser to enter into it, and it is immaterial whether the 
 bill is filed by the vendor or the purchaser. 
 
 74. Upon a sale, with a condition that the conveyance was to 
 be subject to certain existing obligations, and also subject to 
 a covenant on the part of the purchaser, his heirs, and assigns, 
 and proper provisions for the due observance and performance 
 thereof, restricting " the purchaser, his heirs, and assigns, as to 
 the buildings to be erected oi;i the premises, it was held that the 
 sellers were only entitled to a covenant from the purchaser, with 
 a power of entry in case of breach of covenant, which power 
 the parties confined to lives in being and twenty-one years after- 
 ward s.(A) 
 
 75. It should always be stated in the conditions, that the con- 
 veyance shall be prepared by and at the expense of the pur- 
 chaser.(f) A condition that a purchaser shall have proper sur- 
 renders, &&, of a copyhold at his own expense, will not throw 
 
 (e) Cox V. Bishop, 28- L. T. 301 ; re- (g) Lukey v. Higgs, 1 Jur. N. S. 200. 
 yersed, 29 L. T. 44. \h) Ex parte Ralph, 1 De G. Cas. Bank. 
 
 (f) Moxhay v. Inderwick, 1 De G. & Sm. 21 9. 
 
 708. (i) Post, ch. 5, ch. 14, s. 1. 
 
 [39] 
 
CH. I. § II.] FORFEITURE OF DEPOSIT. 57 
 
 on him the expense of fines and fees occasioned by the death, 
 after the contract, of a trustee of the legal eata.te.(k) 
 
 76. The usual condition, " that if the purchaser shall fail to 
 'Comply with the conditions, the deposit shall be forfeited, and the 
 
 proprietors be at liberty to resell the estate ; and the deficiency, 
 if any, by such sale, together with all charges attending the same, 
 shall be made good by the defaulter," should never be omitted. 
 If the money produced by the second sale exceed the original 
 purchase money, the purchaser will not be entitled to the surplus, 
 but the vendor himself will be entitled to retain it.(A^) The 
 seller cannot, after a resale, recover against the purchaser gen- 
 erally, but only for the diiTerence and expenses. The power of 
 resale implies a power of annulling the first sale, and therefore 
 is a sale on condition. The seller, on the resale, is not the agent 
 of the defaulting ptirchaser.(Z) A trustee selling cannot be 
 charged with a breach of trust for not reselling under this con- 
 dition. It is very seldom that the clause is put in force, and no 
 trustee would resort to it if he were taking other proper steps 
 to carry out the purchase.(j») 
 
 77. It has been considered that a clause enabling the seller to 
 rescind the contract, simply returning the deposit 'without inter- 
 est or costs, and although he should have taken steps to remove 
 the purchaser's objection in case he should be unwilling- [?], or 
 unable to remove or satisfy any objection or requisition, is a very 
 ordinary, reasonable, wise, cautious, and a prudent clause for an 
 absolute owner to introduce when selling.(w) And, as we shall 
 see, even a mortgagee with a power of sale may sell with such a 
 condition. (o) 
 
 78. It is usual to stipulate, that in case of default by the 
 purchaser he shall forfeit the deposit,(o^) and that the amount of 
 
 {k) Paramore v. Greenslade, 1 Sm. & of sale, until, on a resale, the deficit shall 
 
 Gif. 541. have been ascertained. Webster v. Hoban, 
 
 {k^} [See Thompson v. Kelly, 101 Mass. 7 Cranch, 399.] 
 291.] (m) Thomson v. Christie, 1 Macq. H. of 
 
 (/) Lamond !;. Darall, 9 Q. B. 1030; Ex L. 236. 
 parte Hunter, 6 Ves. 94 ; Moss v. Matthews, (n) Falkner v. Eq. Rev. Soc'y, 4 Drew. 
 
 3 Ves. 279 ; Mertins v. Adcock, 4 Esp. Ca. 352. 
 251 ; sed vide 7 Ves. 275; see Greaves w. (o) Infra. 
 
 Ashlin, 3 Ca. 466; post, ch. 19. [The (oi) [" When a purchaser expressly stip- 
 
 seller cannot maintain an action against ulates that a payment on account, actually 
 
 the purchaser for a breach of the contract made by him, is to be forfeited if by his own 
 
58 FORFEITURE OF DEPOSIT. [CH. I. § II. 
 
 the expenses of a resale, &c., shall be recoverable as stipulated 
 damages. * Opinions have differed whether the party should 
 only be allowed to recover what damage he had really sus- 
 tained [p) or the stipulated sum.(9) But such a condition does 
 not preclude the seller from maintaining an action for general 
 damages, where the purchaser breaks off from the contract al- 
 together. It applies in case of a breach of any of the partic- 
 ular conditions.(r) 
 
 79. Where there is no specific provision, the question whether 
 the deposit is forfeited depends on the intent of the parties, to be 
 collected from the instrument. Therefore, where 300/. was paid 
 by way of deposit, and in part of the purchase money, and the 
 agreement stipulated that if either party should refuse to perform 
 the agreement he should pay to the other 1,000L as liquidated 
 damages, it was held that there should be no other remedy; con- 
 sequently, although the purchaser had made default, and the 
 vendor might have sued for the penalty, and recovered damages, 
 yet, as he had sold the estate to another, the purchaser was al- 
 lowed to recover the deposit.(s) The general question, whether 
 one contracting for the purchase of landed property, who refuses 
 to complete his contract, may recover the deposit from the ven- 
 dor on his afterwards selling the property to another, was not de- 
 cided in the above case ; but the impression of the court seems 
 to have been, that the deposit would not be forfeited by a breach 
 of the contract on the part of the purchaser, unless there is a 
 clause to that effect in the contract. It was asked by one of the 
 learned judges, whether, supposing the contract contained no 
 
 fault the purchase shall not go into effect, 275 ; Beale v. Hajes, 5 Sandf. 640 ; Smith 
 he may reasonably be understood to mean v. Smith, 4 Wend. 468 ; Dakln v. Will- 
 that it shall not be reclaimed in whole or in iams, 1 7 Wend. 447 ; Williams v. Dakin, 
 part. The distinction between a penalty 22 Wend. 201 ; Pearson v. Williams, 26 
 and liquidated damages does not apply to Wend. 630; Mott v. Mott, 11 Barb. 127 ; 
 a case of that description." Ames J. in Gammon w. Howe, 1,4 Maine, 250 ; Lingley 
 Thompson v. Kelly, 101 Mass. 299.] v. Cutler, 7 Conn. 291 ; per Shaw C. J. in 
 
 (p) Kundal v. Everest, 1 Moo. & Mai. Shtite v. Taylor, 5 Met. 67. 
 41. See Boys v. Ancell, 5 Bing. N. C. 390. (r) Icely v. Grew, 6 Ney. & Man. 467. 
 
 (q) Crisdee v. Bolton, 3 C. & P. 240. (s) Palmer v. Temple, 1 Per. & Da. 379, 
 
 [See Chitty Contr. (10th Am. ed.) 975, 382; 9 Ad. & El. 508; Ockenden <;. Hen- 
 
 976; Chamberlain v. Bayley, 11 N. H. ly, 1 Ell. Bl. & Ell. 485; infra, s. 3, pi. 
 
 234, 240; Brewster v. Edgerly, 13 N. H. 19. 
 
 [40] 
 
CH. I. § II.] FORFEITURE OF DEPOSIT. BANKRUPTCY. 59 
 
 stipulation for a forfeiture of the deposit, the vendor could re- 
 tain the deposit and sue for damages too ? But where a pur- 
 chaser is in default, and the seller has not parted with the sub- 
 ject of the contract, it is clear that the purchaser could not 
 recover the deposit ; for he cannot, by his own default, acquire a 
 right to rescind the contract. The question will then remain, 
 whether the seller's resale of the estate will give the purchaser 
 a right to rescind. It would seem not, if the sale was after the 
 purchaser's default ; (s^) for as the purchaser by his act had lost 
 the right to enforce the contract, the disposal of the estate by the 
 seller prejudiced no right of the purchaser, and could impart to 
 him no right to rescimrf a contract which he had already broken.{s^) 
 The sale does not purge the previous default of the purchaser. 
 To him it matters not whether the seller receives the profits 
 himself, or lets or sells the estate, for in either case he cannot 
 enforce the contract. The sale, it is argufed, prevents the seller 
 from performing the first contract. But the answer to this is, 
 that he cannot be compelled to perform it. How, therefore, 
 does it differ the case * that he has sold what he might, in 
 spite of the purchaser's claim, retain in his own hands for his 
 own use. He has sold what the purchaser has lost, his right to 
 demand. The second sale does not give to the purchaser a right 
 of action for damages, although the subject of the first contract 
 is disposed of. If, therefore, in consequence of the purchaser's 
 default the seller is at liberty to resell for his own profit, he does 
 a lawful act from which no damage resuVts to the first purchaser, 
 and which; it should seem, cannot revive in the latter a right to 
 recover the deposit which did not exist before the second sale.(l) 
 The right of the seller in such a case to recover damages upon 
 a resale beyond the deposit, is another question. 
 
 80. If the purchaser, after breaking the condition, become 
 bankrupt, and the estate is resold at a loss, the expenses of the 
 
 («!) [See Thompson v. KelJy, 101 Mass. {s^) [Irvin v. Bleakley, 67 Penn. St. 24.] 
 291.] 
 
 (I) See Lethbridge v. Kirkman, 25 L. J. N. S. 89, where the purchaser objected to 
 the title, and the sellers resold the estate at an advanced price, and the purchaser 
 brought an action for money had and received, to recover his deposit, with interest, and 
 the court of queen's bench being of opinion in favor of the title, there was judgment 
 for the defendant. [See Thompson v. Kelly, 101 Mass. 291.] 
 
 [41] 
 
60 TITLE. [CH. I. § II. 
 
 sale, &c., are in the nature of unliquidated damages, but as the 
 vendor has a lien on the estate, he may apply the money pro- 
 duced by the last sale of the estate, first, in payment of those 
 articles which it is just he should receive ; then towards payment 
 of the original purchase money ; and the balance may be proved 
 under the commission.(i) 
 
 81. Where a time is allowed by the conditions obviously for 
 the purchaser's convenience, although not so expressed, it will be 
 held to be confined to him.(M) 
 
 82. Although a vendor ought, by proper conditions, to be re- 
 lieved from obvious difficulties and from expenses which may be 
 unfairly pressed as against him, but which a purchaser, if left to 
 bear them, would take care should fall lightly upon himself, yet 
 the general practice between vendor and purchaser should be ad- 
 hered to as near as may be. In some instances, for example, 
 the sale for the first time of houses in a town which have long 
 been the property of one family, purchasers may be found to 
 pprchase, subject to any conditions which the seller may think 
 fit to impose ; yet, in the general run of sales, unusual con- 
 ditions alarm or disgust parties or their solicitors, and they stay 
 away from the sale, or if they purchase, they interpose every 
 possible obstacle in the way of the title, as a set-off against 
 the hard conditions to which they were compelled to subscribe. 
 The common * conditions of sale will always be found to fa- 
 cilitate the completion of the purchase, where the seller has a 
 good title. The nature of the title should always be adverted 
 to ; and where it is necessary, conditions should be introduced to 
 guard against the liability to produce titles upon exchanges, in- 
 closures, renewable leaseholds, or the like, and to provide for ap- 
 portionment of rents, so as to be binding on purchasers, or to 
 make the purchaser take subject to unusual liabilities, e. g. an 
 original rent, and the covenants in the original lease, where only 
 part of the property is sold, and this cannot safely be done with- 
 out the advice of counsel. But it never can be advisable to 
 
 (t) Ex parte Hunter, 6 Ves. 94 ; Bowles De G., M. & G. 336 ; now unliquidated 
 
 V. Rogers, 76. 95, n. ; 1 Cook, 123 ; Hope damages may be proved, 24 & 25 Vict. c. 
 
 V. Booth, I B. & Ad. 507 ; Ex parte Ld. 134, s. 153. 
 
 Seaforth, 1 Rose, 306 ; where the seller had (u) Hagedorn v. Laing, 6 Taunt. 514 ; a 
 
 recovered in an action. Ex parte Gyde, 1 sale of goods. 
 Gly. & Ja. 323 ; Andrew v. Andrew, 8 
 
 [42] 
 
CH. I. § II.J • WRITTEN CONTEACTS. 61 
 
 stipulate that the purchaser shall take without inquiry as to some 
 matter, which, if disclosed and unfavorable, would destroy the 
 title ; unless the seller is prepared to part with his property for 
 what it ma^fetch without a title.(a;) The writer, however, is 
 fully aware that solicitors are of opinion that unusual conditions 
 do not damp a sale. 
 
 83. Conditions of sale, giving a right of entry to take away 
 • produce, for example, may, as a license, bind a third party who 
 
 has assented to them, although he is not a seller..(2/) 
 
 84. Immediately after sale of an estate by auction, an agree- 
 ment to complete the purchase should be signed by the parties 
 or their agent, because sales by auction of estates are within the 
 statute of frauds ; (y^) and, consequently, the contract could not 
 be enforced against either of the parties who' had not signed an 
 agreement.(z) Although a man purchase several lots, yet a dis- 
 tinct contract arises upon each lot ; (z^) but they may all be com- 
 prised iij one agreement.(a) A purchaser should refuse to sign 
 the usual printed agreement, unless the auctioneer will sign one 
 also. 
 
 .85. An auctioneer, however, as the agent of the purchaser, 
 which for tliis purpose in law he is, may bind him to the bidding, 
 by signing for him ; if therefore he put down the purchaser's name 
 as the buyer, and the amount of the bidding opposite to the lot 
 in the particulars and conditions of sale, or make an entry in his 
 books of all the requisite particulars, the purchaser will be 
 bound.(ffli) But this agency for both parties only operates at the 
 
 {x) See Hoy v. Smythies, 22 Beav. 510 ; purchased by one person, it is not an en- 
 Turpin v. Chambers, 30 L. J. N. S. 470. tire contract, and though the vendor can- 
 ity) Wood V. Manley, 3 Ad. & El. 34, not give a title as to all the lots, the ven- 
 (y^) [See2 Kent (nth ed.), 540 ; Chitty dee is not entitled to rescind the agree- 
 Contr. (10th Am. ed.) 323, & note (x) ; ment /re (oio, but must take the conveyance 
 Morton v. Dean, 13 Met. 385 ; Simonds for such of the lots as the vendor has the 
 V. Catlin, 2 Caines R. 61, 64; People v. power to convey. Van Eps w. Schenectady, 
 White, 6 Cal. 75.] 12 John. 436; see Eobinson v. Green, 3 
 (2) Post, ch. 4, s. 6. [As to the liability Met. 159.] 
 • of an auctioneer for neglecting to comply (a) Emmerson v. Heelis, 2 Taunt. 38 ; 
 with the requisites of the statute of irauds, Franklyn v. Lamond, 4 C. B. 637. 
 so that the sale cannot be enforced, see (a^) [Chitty Cont'r. (10th Am. ed.) 323 ; 
 Hicks V. Mintum, 19 Wend. 550 ; Howe M'Comb v. Wright, 4 John. Ch. 659 ; Tall- 
 V. Dewing, 2 Gray, 476, 479.] man v. Franklin, 4 Kernan, 584 ; Cleaves 
 (z') [Where land is sold at auction in v. Foss, 4 Greenl. 1 ; Jenkins v. Hogg, 
 separate lots, and several of the lots are 2 Const. Ct. 821 ; Doty v. Wilder, 15 111.' 
 
62 WRITTEN CONTEACTS. [CH. I. § II. 
 
 time of the sale ; after the sale is concluded, the auctioneer is no 
 longer, the agent of both parties, but of the seller only, and there- 
 fore upon a subsequent purchase of any unsold lot, the signature 
 of the seller or his agent cannot bind the buyer.(6) And 
 on the other hand, the auctioneer's receipt for the deposit may 
 amount to an agreement, binding upon the seller, if it contain 
 the names of the seller and purchaser, the *description of the 
 estate sold and the price, and refer to the conditions so as to 
 enable the court to read them. For in either case, the mem- 
 orandum, entry, or receipt, by the auctioneer, must in itself, or 
 with the particulars or other paper which it embodies by a refer- 
 ence, contain all the particulars required to the validity of a writ- 
 ten agreement. An auctioneer signing an agreement as in his 
 own name, may show that it was really on behalf of his prin- 
 cipal, (c) 
 
 86. But the auctioneer is the agent for the purchaser for this 
 purpose only, and he becomes so only where there is a contract 
 of sale by the acceptance of a bidding which is usually declared 
 when the hammer is knocked down. Till the hammer goes do\vn 
 the auctioneer is exclusively the agent of the vendor.(c^) The 
 -vendor himself and the bidder being respectively free till the 
 hammer is knocked down, the auctioneer cannot possibly be 
 previously bound.(rf) 
 
 407 ; Brent v. Green, 6 Leigh, 16 ; Entz v. statute of frauds." He, then sets forth the 
 
 Mills, 1 M'MuUan, 453 ; Adams v. M'Mil. true reason and the technical ground for 
 
 Ian, 7 Porter, 73 ; Meadows v. Meadows, this distinction between sales by auction- 
 
 3 M'Cord, 458 ; Bennet v. Carter, Dudley eers and other agents. Chitty Contr. (10th 
 
 (S. C), 142; Gordon v. Sims, 2 M'Cord Am. ed.) 323, & note (y).] 
 
 Ch. 164; Pugh v. Chesseldine, 11 Ohio, (6) Mewsu. Carr, 1 H. &N.484; [Story 
 
 109 ; Baptist Churc'h v. Bigelow, 16 Wend. Agency (6th ed.), § 108; Smith v. Arnold, 
 
 28; Burke v. Haley, 2 Gilm. 614; Hart 5 Mason, 419. In White v. Watkius, 23 
 
 V. Woods, 7 Blackf. 568 ; Warlow v. Har- Mis. (2 Jones) 423, it was held that a mera- 
 
 rison, 1 El. & El. 304, per Lord Camp- orandum made by the auctioneer a month 
 
 bell C. J. 307. In Gill v. Bicknell, 2 Cush. after the sale, was not sufficient. See 
 
 358, Shaw C. J. said: "It is now well Smith u. Arnold, 5 Mason, 419. The auc- 
 
 settled by authorities, that a sale of real tioneer cannot rescind the sale for either 
 
 estate at auction, where the name of the party, without specific orders, even before 
 
 bidder is entered by the auctioneer, or by the payment of the purchase money. Boi- 
 
 his clerk under his direction, on the spot, nest *. Leignez, 2 Rich. L. 464.] 
 
 and such entry is so connected with the (c) See 2 Nev. & P. 519. 
 
 subject and terms of the sale, as to make a (c^) [See Story Agency (6th ed.), § 27.] 
 
 part of the memorandum, is a contract in (d) Warlow v. Harrison, 28 L. J. N. S. 
 
 writing, so as to take the case out of the Q- B. 18, per Lord C. J. ; [1 El. & El. 295, 
 
 [43] 
 
OH. I. § m.] 
 
 auctioneer's liability. 
 
 SECTION III. 
 
 OF ATJCTIONEEKS AND AGENTS, AND OP THE DEPOSIT AND PURCHASE MONEY. 
 
 1. Anctioneer cannot delegate: sale of his 
 
 own estate : trustee no commission. 
 
 2. Auctioneer liable, if no authority. 
 
 3. If sale defeated by his negligence, not 
 
 entitled to commission : answerable for 
 misdescription. 
 
 4. Revocation of auctioneer's authority. 
 
 5. Amount of commission on sale. 
 
 6. Amount for finding a purchaser — sev- 
 
 eral agents. 
 
 7. When it is payable: revocation of au- 
 
 thority. 
 
 8. Agent bidding beyond his authority. 
 
 9. Disputes between principal and agent as 
 
 to the latter's authority. 
 
 10. Conditional sale by agent. 
 
 11. Agent to sell not entitled to receive the 
 
 money. 
 
 12. Auctioneer cannot give credit. 
 
 13. Set-off. 
 
 14. Eemittance by seller's direction. 
 
 15. Purchaser may stop his check, if contract 
 
 void : effect of acceptance by seller of 
 check. 
 
 16. I U for deposit, and the contract not 
 
 performed. 
 
 17. Must not pay agent before the fixed 
 
 time. 
 
 18. Seller's direction to pay third person 
 
 binding. 
 
 19. Deposit is part payment. 
 
 20. Auctioneer to retain it till contract com- 
 
 pleted. 
 
 21. ) Interpleader by auctioneer in equity — 
 
 22. ) payment of auctioneer's charges. 
 
 23. Under interpleader act. 
 
 24. Equitable pleas at law of set-off. 
 
 25. Loss by insolvency of auctioneer falls on 
 
 seller : where on mortgagor. 
 
 26. Trustees not liable for auctioneer's insol- 
 
 vency. 
 
 Auctioneer liable where principal not dis- 
 closed. 
 
 Not liable to interest; may pay to insol- 
 vent principal. 
 
 Payment to agent payment to principal. 
 
 Deposit invested by court, at risk of 
 seller. 
 * 31, Proposed arrangement for disposal of 
 deposit. 
 
 32. Where loss by sale of stock cannot be 
 
 thrown on purchaser. 
 
 33. Forfeited deposit on sale of settled es- 
 
 tate. 
 Seller not bound by investment without 
 
 his assent. 
 Waiver of payment of deposit. 
 No election to forfeit deposit : forfeiture 
 
 relieved against. 
 Seller to repay deposit although his bill 
 
 dismissed. 
 
 27. 
 
 30. 
 
 34 
 
 35. 
 
 37, 
 
 1. An auctioneer employed to sell, must himself sell the 
 estate, and cannot without a special authority delegate the sale 
 to another.(a) It is said that an auctioneer may sell his own 
 
 309. But the authority of the auctioneer 
 cannot be revoked after the property has 
 been knocked down, even though no con- 
 tract may have, been signed. Day v. 
 Wells, 7 Jur. N. S. 1004; 30 Beav. 220. 
 Where the auctioneer professes to sell as 
 "without reserve," it seems that a bid by 
 the owner is not a revocation of the au- 
 thority of the auctioneer, but if he accepts 
 the owner's bid, he commits a breach of 
 
 contract with the purchaser, for which he 
 may be made liable in damages. Warlow 
 V. Harrison, 6 Jur. N. S. 66, Exch. Ch. ; 1 
 El. &B1. 309,318.] 
 
 (a) Cockran v. Irlam, 2 Mau. & Sel. 
 301 ; Catliu v. Bell, 4 Car. 183 ; Schmaling 
 V. Thomlinson, 6 Taunt. 147 ; Coles v. 
 Trecothick, 9 Ves. 251 ; [Stone v. The 
 State, 12 Missou. 400 ; Story Agency {6th 
 ed.), §§13, 29, 108; Commonwealths. 
 
 [44] 
 
64 auctioneer's liability. [CH. I. § III. 
 
 property without disclosing that he is the owner; (b) but such a 
 practice may lead to abuse. If a trustee, being an auctioneer, 
 sell the trust property, he is not entitled to charge commis- 
 sion ; (c) unless it can be collected from the deed that his com- 
 mission was Intended to be provided for.(d) 
 
 2. If an auctioneer sell an estate without a sufficient authority, 
 so that the purchaser cannot obtain the benefit of his bargain, 
 he will be compelled to pay all the costs w^hich the purchaser 
 may have been put to, and the interest of the purchase money, 
 if it has been unproductive, (e) for there being no principal who 
 is responsible, the auctioneer is answerable as principal, other- 
 wise the purchaser would have no remedy. (/) But now an 
 action ex contractu cannot be maintained against "the professed 
 agent as principal ; (/i) nevertheless he is liable on an implied 
 contract that he had authority to contract in the name of the 
 principal. This applies to professed agents generally contract- 
 ing to buy or sell an estate although under the belief that they 
 had authority, but actually without any.(/2) The purchaser, 
 
 Harnden, 19 Pick. 482 ; Laussat v. Lippiu- the contract does not preclude the idea of 
 
 cott, 6 Serg. & R. 386. But he may era- personal obligation on the part of the per- 
 
 ploy another person to use the hammer son assuming to be agent." See Pettin- 
 
 and make the outcry under his immediate gill v. McGregor, 12 N. H. 179, 191; 1 
 
 direction and supervision. Commonwealth Am. Lend. Cas. (4th ed.) 630-633, in notes 
 
 V. Harnden, 19 Pick. 482.] to Rathbon v. Budlong; Byars v. Doores, 
 
 (6) Flint V. Woodin, 9 Hare, 622. 20 Missou. 284 ; Royce v. Allen, 28 Vt. 
 
 (c) Kirkman v. Booth, 1 1 Beav. 273 ; 234 ; Hodges v. Green, 28 Vt. 358 ; Hall ' 
 
 inf. s. 5. u. Cockrell, 28 Ala. 507 ; Steele v. McEl- 
 
 (df) Douglas v. Archbutt, 2 De G. & J. roy, 1 Sneed (Tenn.), 341 ; Garland i>. 
 
 151. Stewart, 31 Mi.ss. 314; Meech v. Smith, 7 
 
 (c) Bratt V. Ellis, MS. ; Jones u. Dyke, Wend. 315.] ' 
 
 MS. App. Nos. 4 & 5, to I'urch. ; see Nel- {/') [In Jefts v. York, 10 Cush. 392, 395, 
 
 son V. Aldridge, 2 Star. 435. Shaw C. J., states it as the rule in such 
 
 (/) Gaby u. Driver, 2 Yo. & Jer. 549. cases, that "if one falsely represents that he 
 
 (/') [S^^ Ballon u. Talbot, 16 Mass. has an authority, by which another, relying 
 461; Jefts v. York, 4 Cush. 371; S. C. on the representation, is misled, he is liable; 
 10 Cush. 392; Story Agency {6th ed.), § and by acting as agent for another, when 
 264a ; but see Bush v. Cole, 28 N. Y. 261 ; he is not, though he thinks he is, he tacitly 
 Dusenbury v. Ellis, 3 John. Cas. 70. In and impliedly represents himself author- 
 Moore W.Wilson, 16 N. H. 332, 336, it ized without knowing the fact to be true ; 
 was stated to be " a well settled rule of it is in the nature of a false warranty, and 
 law, that where one not having authority he is liable. But in both cases his liabil- 
 to bind another, assumes to do so, he ity is founded on the ground of deceit, and 
 binds himself, if apt words are used for the remedy is by action of tort. Smout v. 
 that purpose, or if the language used in Ilbery, 10 M. & W. 1 ; Jenkins v. Hutch- 
 
CH. I. § iii.J auctioneer's liability. 65 
 
 however, cannot recover any damages for loss of his bargain. (§■) 
 Where the principal denies the authority, and a bill is filed 
 against him by the purchaser, which is dismissed, he may re- 
 cover the costs from the agent, but it would not be prudent to 
 commence such a suit without notice to the agent and inquiring 
 whether he still persisted that he had authority. (A) If an auc- 
 tioneer be authorized to sell a property, the owner, of course, 
 cannot object that the sale was by auction where he knew it 
 was intended; and it would require a strong case to impeach 
 *the sale upon the ground that the seller did not intend it to 
 be sold under a price greater than the amount realized. (i) 
 
 3. If an auctioneer do not insert usual clauses in the condi- 
 tions of sale, whereby the sale of the estate is defeated, he can- 
 not recover any compensation from the vendor for his services ; 
 and it is immaterial that he read ovck the conditions of sale to 
 the seller, who approved of them. The same rule of course 
 applies to negligence generally on the part of the auctioneer, 
 whereby the sale is defeated. (A) And if there has been a breach 
 of duty, but no real injury, yet the owner is entitled to nominal 
 damages. {/) And a seller may recover damages against the auc- 
 tioneer for loss in consequence of the auctioneer negligently mis- 
 describing the property.(»j) Where no solicitor is employed, the 
 auctioneer may, it should seem, introduce special conditions.(w) 
 
 4. A principal may revoke the auctioneer's authority at any 
 
 inson, 13 Ad. & El. 744." See Pow v. {!c) Denew v. Daverell, 3 Camp. 4.51 ; 
 
 -Davis, 1 B. & S. 220; Taylor v. Shel- Jones v. Nanney, 13 Pri. 76; [Chitty 
 
 ton, 30 Conn. 128; Collen v. Wright, 8 Contr. (10th Am. ed.) 596; Dodge y. Tiles- 
 
 E. & B. 647, 664, note to Am. ed. ; Web- ton, 12 Pick. 328; Story Agency (6th ed.), 
 
 ster V. Lamed, 6 Met. 522 ; Story Agency §§ 331, 333 ; Story Sales (4th ed.), §§ 470, 
 
 (6th ed.), §§ 264, 264a; Harper v. Little, 2 477. It is the duty of the auctioneer to 
 
 Greenl. 14.] make a memorandum in writing of the 
 
 ((/) Collen V. "Wright, 7 E. & B. 301 ; sale ; and the failure to do so, and a loss to 
 574, n. ; affd 8 E. & B. 647 ; Simons v. the yendor consequent upon such failure, 
 Patchett, 7 B. & B. 568, where an agent, , would be a good defence to an action by 
 who withont an authority, had purchased a the auctioneer for his sei'vices in making 
 personal chattel, was held liable to dam- the sale. Per Thomas J. in Howe v. Dew- 
 ages for loss on a resale. [See Bush v. ing, 2 Gray, 479.] 
 
 Cole, 28 N. Y. 261 ; Spedding v. Nevell, {I) Hibbert v. Bayley, 2 Fos. & Fin. 48. 
 
 L. K. 4 C. P. 212, 216.] (m) Parker v. Farebrother, 1 Com. L. 
 
 (A) S. C. There the costs were recorered. E. 323. [See Hicks v. Minturn, 19 Wend. 
 
 (i) Pike V. Wilson, 1 Jur. N. S. 59 ; see 550.] 
 
 Else V. Barnard, 28 Beav. 228, sale by the (n): Pike v. Wilson, ubi sup. 
 court. 
 
 VOL. I. 5 [45] 
 
66 auctioneer's commission. [CH. I. § III. 
 
 time before it is executed, and the revocation will bind persons 
 not parties to it, or conusant of it. If, therefore, after such a 
 revocation the auctioneer sell, the purchaser cannot enforce the 
 contract.(o) 
 
 5. The auctioneer is, of course, entitled to a fair remuneration 
 for his labor ; the amount must generally depend upon private 
 .agreement, although where there is no special agreement, and 
 there is a particular commission commonly charged, and the 
 seller was aware of the custom, that would, no doubt, in most 
 cases, be the measure of the allowance.(jo) (1) Upon large sales 
 this difficulty is mostly obviated by making a contract before- 
 hand with the auctioneer. * Mr. Justice Lawrence, upon one 
 occasion, observed that, considering the great sums of money 
 which auctioneers were paid for preparing particulars -and sell- 
 ing estates, they ought to be more correct. They contended 
 some time ago, he added, that they were entitled to have 
 the full sum of 51. per cent, commission, even if a man ad- 
 vertised an estate to be sold by auction, and it was afterwards 
 sold by private contract; and then they contended for half the 
 
 (0) Manser v. Back, 6 Hare, 443. tween him and the owner for an entire 
 (p) Maltby v, Christie, 1 Esp. 340 ; sum as compensation for his whole service, 
 
 [Story Agency (6th ed.), 326; Robinson the sale of each lot is a distinct contract, 
 
 V. New Tork Ins. Co. 2 Caines R. 327 ; and the auctioneer's claim for commis- 
 
 Story Sales (4th ed.), § 470. Where an sion arises upon each several sale, and is 
 
 auctioneer sells several distinct lots of land complete on such sale. Robinson v. Green, 
 
 or goods, and there is no agreement be- 3 Met. 159.] 
 
 (1) By the general orders in bankruptcy of 19 May, 1854, the costs to be paid the 
 auctioneer for sales by auction of estates, freehold, leasehold, &c., are ordered as fol- 
 lows: £5 per cent, on the first £300; after to £1,000, 2| per cent.; after to £5,000, 
 1 per cent. ; after to £10,000, J per cent. If the above be sold by valuation, half the 
 above charges ; and if not sold, the expenses to be paid, and fee to the auctioneer to be 
 allowed at the discretion of the taxing officer ; or if bought in, and subsequently sold 
 by private contract, by the negotiation of the auctioneer, half the above charges on sales 
 by auction. And by the general orders as to costs in bankruptcy in county courts of 
 10 March, 1861, it is ordered, that the auctioneer's charges in the county courts in mat- 
 ters of bankruptcy for sales by auction of freeholds, leaseholds, policies, &c., shall be 
 5 per cent, on the first £300 ; then 2 per cent, on the next £700. If sold by valua- 
 tion, one half of the above charges, or if bought in at the sslU, and afterwards sold by 
 private contract solely by the negotiation of the auctioneer, one half of the above 
 charge ; if not sold, the expenses to be paid and a fee to be allowed the auctioneer, at 
 the discretion of the taxing officer. These charges are stated to show what the legis- 
 lature deemed proper ones. No amount is fixed by statute or order- for sales by the 
 order of the court of chancery. 
 
 [46] 
 
CH. I. § HI.] auctioneee's commission. 67 
 
 full commission.(g') It has since been decided, that if a contract 
 be made to pay a given percentage on the sale by auction, but 
 nothing if no sale, and the auctioneer take the usual steps pre- 
 paratory to the sale, he is, by the custom of the trade, which is 
 in law part of the contract, entitled to the commission, although 
 the owner himself, or his solicitor, sell the property by private 
 contract.(>-) This should be guarded against by express stipu- 
 lation. Some auctioneers make it a condition that they shall 
 charge the commission if the estate be sold before, at, or within 
 six months after the time of auction, and if not sold within that 
 time, then a small fixed fee, exclusive of expenses. But, of course, 
 they cannot charge both the commission and the fixed fee and 
 expenses, although there have been abortive sales. . If a sale by 
 private contract be effected, and the owner rescinds it, still the 
 commission, it seems, would be payable. If a sale by private 
 contract is not provided for by the original contract, and the 
 auctioneers have been employed in attempts to sell, they would 
 be entitled to a reasonable remuneration.(s) 
 
 6. If several land agents are employed to sell an estate, one 
 who finds a purchaser may be entitled to a commission for so 
 doing, although the purchase is made of another of the agents, 
 who receives his commission ; but the jury are not bound to give 
 what is termed the usual commission for finding a purchaser, 
 namely, two per cent.(i) Where several agents are employed, 
 this also should be guarded against by express stipulation. In 
 one case it was said, that if a man having a house which he is 
 desirous of letting or selling, places it in the hands of several 
 house agents, though the successful agent alone would be enti- 
 tled to compensation, the others would clearly be entitled- to 
 something for their trouble.(M) This is put without reference 
 to any of the other agents finding a lessee or purchaser ; but 
 
 (?) 3 Smith, 440 (1806) ; see Biggs v. (t) Murray v. Currie, 7 C. & P. 584 ; 
 
 Gordon, 8 C. B. N. S. 638, as to private Bray v. Chandler, 18 C. B. 718. . [See 
 
 sale of leaseholds. Morgan v. Mason, 4 E. D. Smith (N. Y.), 
 
 (r) Driver u. Cholmondeley, 9 C. & P. 636. A broker cannot render such services 
 
 559 ; Eainy v. Vernon, 76. 559 ; Simpson for both buyer and seller at the same time, 
 
 V. Margetson, 11 Q. B. 23, on a special as tc entitle him to a commission from 
 
 contract. both. Pugsley v. Murray, 4 E. D. Smith 
 
 (s) Clark v. Smythies, 2 Pos. & Pin. (N. Y.), 245.] 
 
 83. (m) 1 C. B. N. S. 297. 
 
68 SALES, ETC., BY AGENTS. [CH. I. § III. 
 
 the general rule is, for the unsuccessful agents who have not. 
 found a lessee or purchaser to rest content with the sum paid to 
 them on registering the property. 
 
 * 7. If an agent for sale of an estate is to be paid a percent- 
 age on the sura obtained, he cannot recover his commission 
 until the money is received by the principal. If, therefore, it is 
 paid into the bank under an act of parliament, by the authority 
 of which the property was purchased, the commission is not 
 recoverable until at least the seller's right to the money is ascer- 
 tained, and it is owing to his wilful default that he has not 
 received it.(t') An agreement between the owner of a chattel 
 and another that the latter should use his best endeavors to sell 
 the chattel, and that if he sold it well he should have a fixed 
 sum, was held not to give the agent an irrevocable power to sell. 
 A revocation by death would not entitle the agent to recover his 
 expenses from the personal representative, but a revocation by 
 the principal would enable him to recover his reasonable ex- 
 penses.(a;) Where an agent was employed at a fixed price, and 
 he found a purchaser, but Ijhe owner refused to accept the offer, 
 the agent was held not to be entitled to the commission. He is 
 to find a purchaser in order to entitle him to his commission, 
 and if he do not do so before his authority is revoked, he is to 
 receive nothing ; but if he find a purchaser who is not accepted, 
 and his authority is then revoked, although the special contract 
 is at an end, yet the agent will be entitled to recover for work 
 and labor performed. (^) One learned judge said he did not see 
 
 (v) Bull u. Price, 7 Bing. 237 ; 5 Mo. & (TJ. S.) 221 ; Durkee v. Vermont Central 
 
 Pa. 2 ; Cannon ./. Kelly, 1 Hay. & Jo. Bail road Co. 29 Vt. 127 ; Chilton v. 
 
 655-; Alder v. Boyle, 4 C. B. 63.5, where Butler, 1 E. D. Smith (N. Y.), 150 ; Gk>ld- 
 
 the residue of the pm-chase money was to smith v. Obermeier, 3 E. iD. Smith (N. 
 
 be paid when "the abstract of convey- Y.), 121; Story Agency {6th ed.), § 329. 
 
 ance " was drawn out ; Moor v. Roberts, Where the compensation of a broker was 
 
 3 C. B. N. S. 830. to be, according to usage, three per cent. 
 
 (x) Campanari v. Woodburn, 15 C. B. on the purchase money, it was held that, 
 
 400 ; Moor v. Eoberts, [3 C. B. N. S. if there was no purchase, there was no 
 
 830 ; Simpson v. Lamb, 17 C. B. 603, 610, right to compensation, although the ven- 
 
 et seq. ; United States v. Jarvis, Davies E. dor refused to sell on the terms he first 
 
 274.] designated. Power v. Kane, 5 Wis. 605. 
 
 {y) Prickett v. Badger, 1 C. B. N. S. But if the auctioneer is the actual cause 
 
 296 ; Green v. Mules, 30 L. J. N. S. 343, of the sale by advertising or otherwise, he 
 
 C. P. ; see Pelly v. Sidney, 5 Jur. N. S. is entitled to his commission, although be- 
 
 793; [McGavock v. Woodlief, 20 How. fore the final sale the vendor withdrew 
 
 [47] 
 
CH. I. § III.J SALES, ETC., BY AGENTS. 69 
 
 why the jury should not give the agent the full amount ; but 
 this would be simply indirectly to enforce the special contract, 
 although there was no sale. 
 
 8. If an attorney or agent bid more for an estate than he was 
 empowered to do, he himself would be liable ; but it seems that 
 his principal would not.(z) But unless he were expressly limited 
 as to price, and not enabled to go beyond the limits of his au- 
 thority, his principal would be bound.(a) Where the agent has 
 disclosed the name of his principal, he is not bound to disclose 
 his knowledge of his principal's insolvency.(6) 
 
 9. Where the principal denies the authority, and the agent is 
 compelled to perform the agreement himself, because he cannot 
 prove the commission, he may afterwards file a bill against his 
 principal ; and if the principal deny the authority, an issue will 
 be directed to try the fact ; and if the authority be proved, the 
 principal will be compelled to take the estate at the sum which 
 he authorized the * agent to bid.(c) If the^ agent mal^e the agree- 
 ment in that character, and his authority is denied, and he pays 
 the deposit, he may recover it back in his own name if a good 
 title cannot be iaade.{d) If the agency be established, the agent 
 will be compelled to transfer the benefit of the contract to his 
 principal, although he made the contract in his own name, and 
 swears that it was on his own account.(e) If an agent at an 
 auction allows the auctioneer to put down his name as the pur- 
 chaser, he may be fixed as such ; but this mu^t depend upon 
 circumstances, for if the auctioneer knew that he was an agent, 
 and for whom, he might be held to be such only.(/) If an agent 
 buy at an auction,* but upon the seller's insisting on retaining 
 him as the bidder, signs the agreement as purchaser, he will be 
 bound, as between him and the seller, for an agent may become 
 liable on his own undertaking. And subsequent communication 
 
 the property from sale by him. Green v. {d) Langstroth v. Toulmin, 3 Star. 145. 
 
 Bartlett, 14 0. B. N. S. 681.] (e) Lees v. Nuttall, 1 Rus. & My. 53; 
 
 (z) Amb. 498; 10 Ves. 400. 2 My. & Kee. 819; Taylor v. Salmon, 4 
 
 (a) Hicks v. Hankin, 4 Esp. 114; E. I. My. & Cra. 134; Dale v. Hamilton, 5 
 
 Company v. Hensley, 1 Esp. 112. Hare, 369 ; Austin v. Chambers, 6 CI. & 
 
 (6) Dudgeon v. Thomson, 1 Mac. H. li. Fin. 1 ; Sugd. H. of L. 729. 
 
 719; 2 Mac. H. L. 482. (/) Williamson v. Barton, 2 Fos. & 
 
 (c) Waytt V. Allen, M. S. App. No. 6, Fin. 544, a purchase by auction of hay by 
 
 to Purch. ; Chadwick u. Maden, 9 Hare, a foreman. 
 188. 
 
 [48] 
 
70 PAYMENT OF THE PURCHASE MONEY. [CH. I. § III. 
 
 between the seller and the alleged principal will not amount to 
 a release of the bidder, nor would an acceptance of title by the 
 former bind the latter.(g-) Of course where a man enters into a 
 contract in hite own name for the purchase of an estate, he can- 
 not set up as a defence that, being a solicitor, he purchased for 
 a client, whom he names.(A) 
 
 10. A written proposal, or agreement, by an authorized agent 
 to sell to A,, provided he accept the offer within a given time, 
 will, if accepted by the proposed purchaser within the time, bind 
 the principal, although the agent neglected to communicate to 
 him the acceptance until after the time limited for the accept- 
 ance.(i) 
 
 11. An agent employed to sell has no authority as such to 
 receive payment of the purchase money ; (k) nor has an auc- 
 tioneer, under common conditions, any authority to receive more 
 than the deposit.(Z) 
 
 12. And if an auctioneer, being authorized to receive, give 
 credit to the vendee, or take a bill or other security for the pur- 
 chase money, it is entirely at his own risk ; the vendor can com- 
 pel him to pay the money. (m) As between an agent for the 
 seller and a purchaser, it seems that an agent with an undis- 
 
 (g) Chadwick v. Maden, 9 Hare, 188, agent may make and execute the proper 
 where the alleged principal and agent, the instrument required hy law to carry the 
 defendants, disputed their respective char- sale into effect. Valentine v. Piper, 22 
 acters ; Fawkes v. Lamb, 8 Jur. N. S. Pick. 85. A power to an agent to sell 
 385. lauds, on such terms in all respects as he 
 (h) Saxon v. Blake, 29 Beay. 438. might deem most advantageous, and to 
 {{) Wright V. Bigg, 15 Beav. 592. execute deeds of conveyance necessary to 
 (k) Mynn v. Joliffe, 1 Moo. & Ro. 326 ; the full and perfect transfer of the title, 
 see Pole v, Leask, 28 Beav. 562. [But it authorizes the agent to insert in tlia deed 
 has heen held that an authority to make the usual covenants of warranty. An 
 contracts for the sale of lands will author- agent to sell and receive the purchase 
 ize the agent to receive so much of the money, or for cash, would not be author- 
 purchase money as is to he paid in hand ized to sell without receiving the purchase 
 on the sale, as an incident to the power to money. Palls v. Gaither, 9' Porter, 605.] 
 sell. Yerby v. Grisby, 9 Leigh, 387 ; :^eck [l) Sykes v. Giles, 5 M. & W. 645 ; a 
 V. Marriott, 6 Serg. & E. 140 ; Higgins v. case of special conditions. 
 Moore, 6 Bosw. 344; Taylor v. Nussbaum, (m) Williams v. Millington, 1 H. Black. 
 2 Duer (N. Y.), 302 ; Pinckney o. Haga- 81 ; Wiltshire v. Sims, 1 Camp. 258 ; 
 dorn, 1 Duer, 89 ; Hackney „. Jones, 3 [Sykes v. Giles, 5 M. & W. 645 ; Williams 
 Humph. 612; Story Agency (6th ed.), § v. Evans, L. R. 1 Q. B. 352; see State 
 58; see R. §§ 98, 108, n. (5). Under of Rlinois y. Delafield, 8 Paige, 527 ; S. C. 
 an authority to make sale of real es- 26 Wend. 192; S. C. 2 Hill, 160; Story 
 tate and receive the purchase money, an Agency (6th ed.), §§ 27, 60, 108, 209.] 
 
CH. I. § III.J PAYMENT OF THE PURCHASE MONEY. 71 
 
 closed principal may vary the terms of payment after the sale is 
 completed ■; the principal may interfere at any time before pay- 
 ment, but not to rescind what has been before done. This is 
 essential to the safety of purchasers. * But if a man sell, acting 
 as a broker, the moment the sale is completed he is functus officii. 
 The terms of the contract cannot then be altered, except by the 
 authority of the principal. («) 
 
 13. If the seller is indebted to his agent, whom he authorizes 
 to receive the money out of which he intends the agent should 
 pay himself, the purchaser, to the extent of the agent's debt 
 against the seller, may discharge the purchase money by setting 
 it off in account with the agent if he is indebted to the pur- 
 chaser ; for this can make no difference to the seller if the agent 
 takes care to receive in cash the balance due to the seller. A 
 person, however, who does not take the ordinary course of pay- 
 ing the whole in money, must take care to be able to prove that 
 the agent is in this situation. If he pays by a settlement in 
 account, he takes upon himself the risk of being able to show 
 the debt due from the principal to the agent, and the specific 
 circumstances under which the agent was appointed to receive 
 the money.(o) 
 
 14. If the seller direct the purchaser to remit, or pay the pur- 
 chase money in a particular manner, as by the post, or to a 
 banker's, the purchaser so remitting or paying the money will be 
 discharged, although it be lost, if he have used due caution in 
 the transaction. (p) 
 
 15. If a purchaser, instead of paying the deposit in cash, give 
 a check for it, and he might have recovered the deposit if paid 
 
 (n) Blackburn v. Scholes, 2 Camp. 343 ; vendor, if the bill never came into his pos- 
 
 Heald v. Kenworthy, 1 Jur. N. S. 70. session ; Sykes v. Giles, 5 M. & W. 645 ; 
 
 (o) Barker v. Greenwood, 2 Yo. & Col. Williams v. Evans, L. E. 1 Q. B. 352 ; 
 
 414 ; Young v. White, 7 Beav. 506 ; where so a check, if given for the deposit, 
 
 the purchaser is a creditor of the agent, should be capable of being immediately 
 
 Hanley v. Cassan, 1 1 Jur. 1088 ; Wrout v. cashed, and should not include other mon- 
 
 Dawes, 4 Jur. N. S. 396 ; 25 Beav. 369 ; eys. Bridges v. Garrett, L. R. 4 C. P. 
 
 Sweeting v. Pearce, 7 Jur. N. S. Ex. Ch. 580.] 
 
 800; [9 C. B. N. S. 534; Bridges v. (p) Warwick v. Noakes, Peak, 67, a; 
 
 Garrett, L. R. 4 C. P. 580. If instead of Hawkins v. Rutt, lb. 186; Eyles v. Ellis, 
 
 making a cash payment, the purchaser '4Biug. 112. [See "Wakefield u. Lithgow, 
 
 gives his acceptance, payment of the bill 3 Mass. 249.] 
 when due is no defence to an action by the 
 
 [49] 
 
72 PAYMENT OF PUECHASE MONEY : OF THE DEPOSIT. [CH. I. § III. 
 
 on account of a misdescription, for example, — the check, though 
 not given without consideration, may be avoided ; and therefore 
 he may successfully defend an action upon the check.(9) A 
 seller, of course, is not bound to accept a check ; (r) if he do, 
 and it is void for want of a proper stamp, he will be entitled to 
 recover the purchase money from the purchaser, although the 
 banker has stopped payment ; but if a valid check be accepted, 
 the seller, if he is guilty of negligence in presenting it, must bear 
 any loss by the insolvency of the banker.(s) 
 
 16. Where, at a sale by auction, the purchaser signed a reg- 
 ular agreement which gave him credit for the deposit as paid, 
 and it was confirmed in writing by the auctioneer as agent to 
 the vendor ; but the purchaser having no money, the auctioneer, 
 with the consent of the vendor's solicitor, accepted his I O U 
 for the deposit, and the purchaser was unable to complete the 
 contract ; it was held that the * auctioneer could maintain an 
 action for the deposit for money lent, and on accounts stated.(<) 
 
 17. If a purchaser pay his money to the agent of the vendor 
 before the time when the latter is authorized to receive it, he 
 makes that agent his own for the purpose of paying over the 
 money to the right owner.(M) If the purchaser be directed to 
 pay the purchase money to the solicitor, for example, on the 
 completion of the purchase by conveyance, he cannot safely pay 
 any portion of, the money to the solicitor before the comple- 
 tion. (x) 
 
 (q) Mills V. OMj, 6 C. & P. 728. goods sold, that the defendant paid the 
 
 • I (r) Clarke u. liing, 2 C. & P. 286. principal before the action was commenced. 
 
 (s) Bond V. Warden, 1 Col. 583 ; Lord Robinson v. Rutter, 4 El. & Bl. 954. And 
 
 Ward 0. Oxford, &c. Ey. Co. 2 De G., M. where an auctioneer is employed to sell 
 
 & G. 750. real estate on terms which contemplate 
 
 (i) Cleave v. Moors, 3 Jur. N. S. 48; the parent of a deposit into his hands by 
 see the judgments. [In case of personal the buyer at the time of the auction and 
 property, an auctioneer employed to sell, before the completion of the sale by the de- 
 may ordinarily maintain an action for the livery of the deed, he may sue for such de- 
 price, or for the property itself. Thomp- posit in his own name whenever an action 
 son V. Kelly, 101 Mass. 296 ; Chitty Contr. for it, separate from the dther purchase ' 
 (10th Am. ed.) 252; Story Sales (4th ed.), money, may become needful. Thompson 
 §471 ; Story Agency (6th ed.), §§ 27, 107; o. KeUy, 101 Mass. 291.] 
 Seller v. Block, 19 Ark. 566; Tyler v. (u) Pamther i>. Gaitskill, 13 East, 432 ; 
 Freeman, 3 Cush. 261 ; 2 Kent (11th ed.), [Story Agency (6th ed. ), § 98.] 
 536. And it is not a sufficient .answer to (x) Hughes v. Morris, 9 Hare, 636. 
 the action of the auctioneer for the price of 
 
 [50] 
 
CH. I. § III.J PAYMENT OF PUECHASE MONEY : OF THE DEPOSIT. 73 
 
 18. If the seller for a valuable consideration direct his agent 
 to pay over the proceeds of the sale to a third person, he cannot 
 revoke the order.(y) 
 
 19. A deposit is considered as a payment in part of the pur- 
 chase money,(z) and not as a mere pledge, which was also the 
 rule of the civil law where money was given ; but if a ring or 
 the like was given by way of earnest or pledge, it. was to be 
 returned.(o) Accordingly, in a case (6) where there was, upon a 
 sale by auction, the common condition for the forfeiture of the 
 deposit and for a resale, " and any deficiency upon such resale, 
 with all expenses, should be made good by the defaulter, and 
 should be recoverable as liquidated damages," and the purchaser 
 did not pay the deposit, which amounted to 24/., and upon a 
 resale the property fetched 151. less than upon the first sale, and 
 •the expenses of the second sale were 9/. 55. ; it was held that the 
 seller could not recover the 15/., and the expenses and the deposit 
 besides ; for, although the deposit, if it had been paid, would 
 have been forfeited, yet it would have been a part payment of 
 the purchase money; the seller was allowed, therefore, to recover 
 only 24/. 5s. which exceeded the deposit, but to which sum the 
 loss on the resale and the expenses amounted. 
 
 20. The auctioneer should not part with the deposit until the 
 sale be carried into effect ; (c) because he is considered as a 
 stakeholder, or depositary of \t.{d) The same rule applies to a 
 solicitor receiving a deposit.(e) Where the auctioneer was also 
 the attorney of the seller, and paid over the money to the seller 
 after he knew that objections to the title had been raised, an 
 action against him for the deposit was sustained.(/) In a 
 
 (y) Metcalf v. Clough, 2 Man. & Ry. Berry v. Yotmg, 2 Esp. 640, n. ; Spurrier 
 
 178. [See Hunt o. Eousmauier, 8 Wheat, v, Elderton, 5 Esp. 1 ; post, ch. 17. 
 
 174; Mansfield w. Mansfield, 6 Conn. 559 ; (d) Jones v. Edney, cor. Lord EUeubor- 
 
 Wheeler w. Wheeler, 9 Cowen, 34; Story ough, 4 Dec. 1812; Robinson v. Rutter, 
 
 Agency (6th ed.), § 477 ; Kuapp v. Alyord, 3 Com. L. R. 1195 ; 4 B. & B. 954 ; Holmes 
 
 10 Faige, 205.] v. Tuttou, 1 Jur. N. S.-975 ; [Chitty Contr. 
 
 (js) Pordage v. Cole, 1 Saund. 319 ; Main (10 Am. ed.) 332 ; Teaffe v. Simmons, 11 
 
 V. Melbourn, 4 Ves. 720 ; Klinitz v. Surry, Allen, 342, 343.] 
 
 5 Esp. 207 ; Ambrose v. Ambrose, 1 Cox, (e) Wiggins v. Lord, 4 Beav. 30. [But 
 
 194 ; Palmer v. Temple, 9 Ad. & El. 508. see contra, Edgell v. Day, L. R. Eng. (Feb. 
 
 [a] Vinnius, 1, 3, 24. 1866) p. 79.] 
 
 (J) Ockenden v. Henley, 1 El. Bl. & (/) Edwards w. Hodding, 5 Taunt. 815; 
 
 Ell. 485. 1 Marsh. 377. 
 
 (c) Burrough v. Skinner, 5 Bur. 2639 ; 
 
74 OF INTERPLEADER : INJUXCTION. [CH. I. § III. 
 
 later case, where the auctioneer had *paid over the deposit to the 
 vendor, without any notice from the purchaser not to do so, and 
 before any defect of title was discovered, it was held that the 
 purchaser (the title being defective) might recover the deposit 
 from the auctioneer.(g-) If a good title is not made out, the 
 purchaser becomes entitled to his deposit ; and, in strictness, an 
 action may be maintained for it without giving notice of the 
 default to the auctioneer.(A) But if a purchaser has agreed that 
 the payment to an agent shall be considered as a payment per- 
 sonally to the vendor, his remedy for his deposit will be against 
 the ]atter.(i) Yet a deposit paid to the auctioneer cannot be 
 recovered as money had and received against the seller, where 
 the sale has been avoided, although in the same action the pur- 
 chaser recovers costs, &c., laid as special ,damages.(A;) 
 
 21. If both the parties claim the deposit, the auctioneer may 
 file a bill of interpleader, and pray for an injunction, which will 
 be granted, upon payment into court of the deposit.(Z) But if 
 after the sale of the estate, and payment of a deposit to the auc- 
 tioneer, the estate be again sold to another purchaser who also 
 pays a deposit to the same auctioneer, and the seller bring an 
 action against the auctioneer for both deposits, and each pur- 
 chaser insists upon his contract, the auctioneer cannot mix up 
 the cases of the seller and the two purchasers in one bill of in- 
 terpleader.(m) And an auctioneer cannot maintain a bill o| 
 interpleader if he insist upon retaining his commission out of 
 the deposit ; formerly, the same rule applied to the auction 
 duty.(M) Where, upon the sale of a horse, the owner had fraud- 
 ulently concealed defects, and made representations, but directed 
 no warranty to be given, and the purchaser gave the auctioneer 
 notice not to pay the purchase money to the owner, the fraud 
 
 [g) Gray v. Gutteridge, 1 Man. & By. (i) Hurley v. Baker, 16 M. & W. 26. 
 
 614. [See Teaffe o. Sipimons, 11 Allen, (k) Johnson v. Roberts, 24 L. T. 254. 
 
 342; Chitty Contr. (lOth Am. ed.) 332.] [See Teaffe v. Simmons, 11 Allen, 342, 
 
 (A) Dancan o. Cafe, 2 M. & W. 244. 344.] 
 
 [Where there is no contract, or no contract (l) Farebrother v. Prattent, 5 Pri. SOS ; 
 
 which can be enforced, the purchaser is en- Dan. 64; [2 Dan. Ch. Pr. (4th Am. ed.) 
 
 titled to have his deposit returned. Ca- 1.565, 1566.] 
 
 pon V. Eoberts, 31 Beav. 613; 8 Jur. N. (m) Hoggart u. Cutts, 1 Cra. & Phil. 
 
 S. 1199; see Betts v. Burch, 4 H. & N. 197. 
 
 506 ; Hinton v. Sparkes, L. K. 3 C. P. (n) Mitchell v. Hayne, 2 Sim. & Stu. 
 
 161.] 63; 11 Sim. 28. 
 
 [51] 
 
CH. I. § III.J INTERPLEADER : LOSS BY BANKRUPTCY. 75 
 
 having been found by the jury in an action by the owner against 
 the auctioneer, the latter obtained a verdict.(o) 
 
 22. If upon a bill filed for an injunction, the court order the 
 deposit to be paid into court, it will, it seems, be after deducting 
 the auctioneer's charges and expenses,(p) although perhaps this 
 desetyes reconsideration ; for the purchaser's deposit may not 
 ultimately be the fund out of which those charges are to be 
 paid ; but this is done without prejudice to any question as to 
 so much of the deposit as is retained. (^) 
 
 23. Under the interpleader act,(r) by which authority is given 
 to a court of law to make such order between such defendant 
 and the * plaintiff as to costs and other matters as may appear 
 just, the court has said, that in the first instance, upon applica- 
 tion for a rule to interplead, the fund shall bear the costs, and 
 the party in the wrong shall afterwards make up the fund ; and 
 although the seller became insolvent, the auctioneer was in one 
 case ultimately allowed to retain his costs out of the deposit, for 
 the purchaser, it was said, had a remedy over against the w^rong- 
 doer.(s) This would operate severely against the riglit of a pur- 
 chaser entitled to a return of his deposit. But in a later case 
 of an action against the auctioneer,(f) where it was doubtful 
 whether the seller was not insolvent, the court, on the general 
 rule, refused to make an order substituting her as a party in the 
 action without security for costs, and refused an application by 
 the auctioneer for his costs out of the deposit, which he offered 
 to pay into court. Why, the court asked, if the plaintiflF suc- 
 ceeded, is the auctioneer to get his costs out of the plaintiff's 
 fund ? The auctioneer had entered into a contract with the 
 plaintiff. It was not like the case of a party who, without any 
 interference of his own, finds property in his hands, and requires 
 the contending claimants to contest the right to it amongst 
 themselves. 
 
 24. Where an action is brought against auctioneers for the 
 produce of sales by them, and they plead equitable pleas of 
 set-ofF under the common law procedure act, and the plaintiff 
 
 (o) Stevens v. Legh, 2 Com. L. E. 251. (r) 1 & 2 Will. 4, c. 58. 
 
 (p) Annesley v. Muggridge, 1 Mad. 593 ; (s) Pitchers v. Edney, 4 Bing. N. C. 721. 
 
 [Kerr Inj. 537.] (j) Deller v. Prickett, 15 Q. B. 1081 ; 
 
 (q) Yates v. Earebrother, 4 Mad.'239. Early v. Smith, 7 Ir. C. L. Eep. 397. 
 
 [52] 
 
76 AUCTIONEER : LOSS BY BANKRUPTCY. [CH. I. § III. 
 
 replies, and there are no complicated accounts, the auctioneers 
 cannot file a bill for an injunction ; effect will be given to the 
 equitable rights of set-off of the defendants at law.(M) 
 
 25. Where 1,000/. was paid as a deposit to an auctioneer, 
 according to the conditions of sale, and the vendor opposed two 
 motions by the purchaser for payment of the deposit intojpourt, 
 and the auctioneer became bankrupt, the loss was holden to fall 
 on the vendor, although the second motion had succeeded, and 
 the day named for payment of the money into court was sub- 
 sequent to the bankruptcy. (a;) And a loss by the insolvency of 
 the auctioneer will, it seems, in every case, fall on the vendor, 
 who nominates him, and whose agent he properly is.(y) Where 
 a mortgagee concurred in a sale by the mortgagor, and the auc- 
 tioneer became insolvent, the loss as between the purchaser and 
 mortgagee was held to fall upon the latter, as he stood in the 
 seller's shoes.(2:) 
 
 26. Executors or trustees selling an estate are not answerable 
 for ' the loss of the deposit by the insolvency of the auctioneer, 
 if they take proper steps in due time to recover it.(a) 
 
 27. Unless an auctioneer disclose the name of his principal at 
 the time of the sale, an action will lie against him for damages 
 on breach of contract.(6) Generally speaking, an auctioneer is 
 not liable for interest ; but that subject will be considered in the 
 chapter on interest.(c) 
 
 28. An auctioneer being only an agent, may safely pay over 
 
 (m) Farebrotlier v. 'Welchmaii, 3 Drew. Wend. 431 ; Jones v. Littledale, 6 Ad. & 
 
 122. El. 486 ; Story Agency (6th ed.), § 27 ; 
 
 (a;) Brown ^. Fenton, MS. ; 14 Ves. Mauri v. Heffernan, 13 John. 58 ; M'Comb 
 
 144; Wilks u. Groom, 3 Drew. 584; 2 v. Wright, 4 John. Ch. 659; 2 Kent (11th 
 
 Jar. N. S. 681, a deposit of purchase ed.), 630, ei seg. ; and under the same cir- 
 
 money by a trustee. cumstances he may bring an action on 
 
 (y) 2 H. Black. 592 ; 13 "Ves. 602 ; 14 the contract of sale in his own name. 
 
 Ves. 150; Annesley w. Muggrid^e, 1 Mad. Bogart o. O'Eegan, 1 B. D. Smith (N. 
 
 593 ; Smith v. Lloyd, 75. 618 ; inf. pi 32. Y.) 590 ; Minturn v. Main, 7 N. Y. 220. 
 
 {z) Boweu. May, 18 Beav. 613; noth- So the auctioneer is liable to the purchaser 
 
 ing was decided as between the mortgagor if he sells for a sum less than the price to 
 
 and the mortgagee. ^ which he is limited. Bush o. Cole, 28 N. 
 
 (a) Edwards v. Peake, 7 Beav. 239. Y. 261.] 
 
 (5) Hanson v. Eoberdeau, Peak. 120; (c) Post, ch. 17, s. 1; [Story Agency 
 
 Simon v. Motives, 3 Bur. 1921 ; Owen v. (6th ed.), § 217 ; Holbrook v. Wight, 24 
 
 Gooch, 2 Esp. 567; 12 Ves. 352, 484; Wend. 169; Witman v. Felton, 28 Mis- 
 
 Franklyn v. Lamond, 4 C. B. 635 ; [Bush sou. 602 ; 2 Story Eq. Jur. § 817 ; Teaffe 
 
 V. Cole, 28 N. Y. 261 ; Mills v. Hunt, 20 o. Simmons, 11 Allen, 342.1 
 
 [53] 
 
OH. I. § ni.] AUCTIONEER : OF INVESTING THE DEPOSIT. 77 
 
 the proceeds of the sale to the seller, his principal, although the 
 latter is to his knowledge in embarrassed circumstances.(c?) (1) 
 It must be a very special case in which he can -set up the jus 
 tertii.{e) 
 
 29. Where a man is completely the agent of the vendor, a 
 payment to him is in law a payment to the principal ; and in an 
 
 •action against the latter for the recovery of the deposit, it is im- 
 material whether it has actually been paid over to him or not.(/) 
 
 30. If, pending a suit for specific performance, a deposit be 
 laid out in the public funds, under the authority of the court, it 
 will be binding on both vendor and vendee ; and, if laid out 
 without opposition by the seller, it must be presumed to be with 
 his assent ; and, in either case, he must take the stock as he finds 
 
 it.(g-) 
 
 31. Until lately, the general rule was to make the deposit pay- 
 able to the auctioneer ; but the Incorporated Law Society rec- 
 ommended this rule to be altered, and suggested a condition to 
 the following effect : " That all deposits on account of purchase 
 money on sales of estates by auction in Loudon be paid to the 
 auctioneer, who shall immediately after the sale pay the same 
 into a bank, to be named by the vendor in the conditiohs of sale, 
 in the joint names and subject to the joint order of the vendor 
 and purchaser, or their nominees, and at the vendor's risk." The 
 adoption of this course, it is observed, will enable the parties to 
 place the money in a bank where interest is allowed, or to invest 
 
 (d) White V. Bartlett, 9 Bing. 378. compliance with the terms of sale, and 
 
 (e) Crosskey v. Mills, 1 Cro., M. & Eo. the sale is afterwards abandoned by mu- 
 298 ; Farebrother v. Welchman, 3 Drew, tual consent of the parties, and the pur- 
 122. chaser thereupon forbids the auctioneer 
 
 (f) Duke of Norfolk ,«. Worthy, 1 paying over the money to the vendor, and 
 Camp. 337 ; Humble v. Hunter, 12 Q. B. thereby prevents his doing so, the vendor 
 310; Collen w. Gardner, 21 Beav. 540; is not liable to the purchaser for the 
 [Teaffe v. Simmons, 11 Allen, 342; see money so deposited. Eobinson w. Trofit- 
 
 ■Bamford v. Shuttleworth, 11 Ad. & El. ter, 11 Allen, 339.] 
 
 926 ; Taber v. Perrott, 2 Gall. 565. But (g) Poole v. Rudd, 3 Bro. C. C. 49 ; 
 
 if the purchaser of land at auction depos- Doyley v. Lady Powis, 2 Bro. C. C. 32 ; 
 
 its with the auctioneer a sum of money, in 1 Cox, 206. 
 
 (1) If a man obtain possession of goods by fraud between him and the owner, which 
 an auctioneer sells for him, the auctioneer cannot safely pay over the proceeds to his 
 principal after notice from the assignees of the insolvent owner. Hardman v. Will- 
 cock, 9 Bing. 382, n. 
 
78 OF INVESTING THE DEPOSIT. [CH. I. § III. 
 
 it in exchequer bills or stock, or to effect any other arrangement 
 that may be mutually desired for making the deposit safe and 
 productive. In such cases, the interest, it is added, would belong 
 to the party ultimately entitled to the deposit. 
 
 *32. If a purchaser is entitled to a return of his deposit, he 
 is not compellable to take the stock in which it may have been 
 invested, unless such investment were made under the author- 
 ity of the court, or with his assent. And an assent will not 
 be implied against a party because notice was given to him 
 of the investment, to which he made no reply. (A) Therefore, 
 where the deposit is considerable, and it is probable that the 
 purchase may not be completed for a long time, it seems ad- 
 visable for the parties to enter into an arrangement for the invest- 
 ment of it. An investment of the purchase money pending the 
 contract, where the purchaser is liable to interest, and his money 
 does not produce so much, upon the suggestion of the vendor in 
 joint names, will" give to the vendor the fund in lieu of the sum 
 invested, that is, upon the completion of the contract, he takes 
 subject to the rise or fall of the stock, (i) Where, pending the 
 investigation of the title, the purchasers applied for possession, 
 offering to deposit the money in joint names at the purchasers' 
 bankers, the seller agreed to possession being taken upon the de- 
 posit in joint names of the money at the seller's bankers, and 
 upon the purchaser's undertaking to pay five per cent, on the 
 purchase money till the completion of the purchase ; the money 
 was deposited accordingly, and before the purchase was com- 
 pleted the bankers failed ; the loss was held to fall on the seller.(A;) 
 The seller was considered to have agreed that the purchase 
 money should thus be dealt with. 
 
 33. If upon the sale of a settled estate a deposit be paid to 
 the tenant for life, which becomes forfeited by the default of the 
 purchaser, it of course will belong to the persons entitled under 
 the settlement.(Z) 
 
 34. As a vendor will not be subject to any loss by the invest- 
 
 (A) Roberts v. Massey, 13 Ves. 561; Co. 17 Jur. 1176; the case of Burroughs 
 
 M'Cann v. Forbes, 1 Hog. 13. v. Oakley, 3 Swa. is referred to in the 
 
 (i) Burroughes v. Browne, 9 Hslre, 609, judgment as reported by mistake, 
 
 the result of a correspondence. - (I) Lord Shrewsbury v. Lady Shrews- 
 
 {k) Sir H. St. Paul v. Birmingham Ky. bury, 18 Jur. 397. 
 
 [54] 
 
CH. I. § III.] FOEFEITUEE OE,EETUEN OF DEPOSIT. 79 
 
 ment of the purchase money in the funds without his assent, so 
 he will not be entitled to any benefit by a rise in the funds, al- 
 though the purchaser gave him notice of the investment, unless 
 he (the vendor) agreed to be bound by the appropriation. There 
 is no difference between a deposit at the purchaser's bankers and 
 a deposit at the Bank of England, or a conversion of the money 
 into stock ; as the one party has no more right to make the 
 other consent to have the fund laid out in stock than in a private 
 bank.(w) 
 
 35. No objection can be made to the whole of the deposit re- 
 quired by the conditions not being paid by the purchaser, if the 
 vendor, after the sale, agree to accept a less sum.(w) 
 
 * 36. A purchaser has no right to elect to put an end to the 
 agreement by forfeiting the deposit ; (o) and although the de- 
 posit be forfeited at law, yet equity will, in general, relieve the 
 purchaser, upon his putting the vendor in the same situation 
 as he would have been in had the contract been performed at 
 the time agreed upon.(j?) But if a bill by a purchaser for a 
 specific performance is dismissed, the court cannot order the 
 deposit to be returned: as that would be decreeing relief; (5) 
 although a refusal of the seller may influence the costs.(r) Thus 
 it stood before the 21 and 22 Vict. c. 27, which enables equity to 
 give damages either in addition to, or in substitution for specific 
 performance ; but this only extends to cases where the court has 
 power to grant specific performance, and therefore might not be 
 held to apply to this case.(s) 
 
 37. Where the seller files the bill, he submits to the jurisdic- 
 tion ; and although his bill is dismissed, the court will compel 
 
 (m) Roberts v. Massey, ubi sup. ; Acland 325. [The remarks in the text are quoted 
 
 V. Gainsford, 2 Mad. 28. with marked approbation by Sir K. Ma- 
 
 (n) Hanson v. Eoberdeau, Peak. 120; lins V. C. in Aberanian Iron Works u. 
 
 Ex parte Gwynne, 12 Ves. 378 ; 1 Camp. Wickens, L. E. 5 Eq. 485, 513 ; S. C. L. 
 
 427. ' R. 4 Ch. Ap. 101.] 
 
 (0) 2 Mer. 506 ; 9 Ad. & El. 520. [See (s) Tuck v. Silver, 1 John. 218 ; Phelps 
 
 Wood V. Mann, 3 Sumner, 317.J v. Prothero,7 De G., M. & G. 722 ; Ormes 
 
 (p) Vernon v. Stephens, 2 P. Wms. *. Beadel, 2 Giff. 166; Rogers v. Challis, 
 
 66; Moss v. Matthews, 3 Ves. 279. 27 Beav. 175; Soames u. Edge, 1 John. 
 
 (7) Rennet College v. Carey, 3 Bro. C. 669 ; Norris v. Jackson, 1 John. & H. 
 
 C. 390; Williams v. Edwards, 2 Sim. 78. 319; Chinnock v. Sainsbury, 30 L. J. N. 
 
 (r) Gee v. Pearse, 3 De G. & Sm. S. 409, infra. 
 
 [55] 
 
80 
 
 SALES BY PRIVATE CONTRACT. 
 
 [CH. I. § IV. 
 
 him to repay the deposits, and with interest, where that ought to 
 be paid ; (t) but of course not if he be still at liberty to bring an 
 action for breach of contract.(M) 
 
 SECTION IV. 
 
 OF SALES BY PRIVATE CONTRACT. 
 
 1. Printed conditions and agreement. 
 
 2. Written agreement ; letters. 
 
 3. Previous representations at an end. 
 i. Unless there be fraud. 
 
 5. Purchase completed by agent binding, 
 
 although contract not in writing. 
 
 6. Where agent binds himself: personal un- 
 
 dertaking by solicitor. 
 
 7. Attested copies o^ parcels where sale is 
 
 in lots. 
 
 8. Contract to procure a purchaser. 
 
 9. Waiver of contract on compromise by the 
 other party with his creditors. 
 
 10. Purchaser liable for nuisance on the es- 
 
 tate. 
 
 11. Eight and liability to drains as between 
 
 purchaser and seller. 
 
 12. Liability of purchaser and seller to fences 
 
 as between each other. 
 
 13. Seller bound to leave support to part 
 
 sold: Mines. 
 
 1. Where it is important to a seller that he should be guarded, 
 in a sale by private contract, by special conditions; he should 
 have the particulars of the estate with the conditions printed, 
 adapting them to a private sale with a printed form of an 
 agreement at the *end. Persons desirous of treating for the 
 estate would thus know beforehand upon what conditions the 
 sale was to be made, and would not be likely, if they did make 
 an offer, to object to be bound by them. 
 
 2. A regular written agreement should be signed by both par- 
 ties, containing the names of the seller and buyer, the descrip- 
 tion of the estate' and the price, with the usual stipulations. Let- 
 ters, as we shall see, may amount to a sufficient agreement.(a) 
 They are often relied upon, where it is feared by either party 
 that the other will withdraw if the matter is prolonged ; but they 
 generally lead to litigation, 
 
 3. After a contract is executed, what passed between the par- 
 It) [Butler V. Lord Portarlington, 1 Bare, 225 ; Ex parte 'Eector,'Bnck, 428 inf. 
 
 Dru. & War. 65 ; Graves v. Wright, 2 as to a bankrupt's estate. 
 Dru. & War. 77. (a) The letters must be stamped ; 
 
 («) Southcomb v. Bishop of Exeter, 6 Evans v. Prothero, 2 Mac. & G..319. 
 
 [56] 
 
CH. I. § IV.] EEPEESENTATIONS BEFORE THE CONTRACT. 81 
 
 ties cannot be adverted to (except as a defence against a specific 
 performance), because what passed between the parties in their 
 communication may have been altered and shifted in a variety 
 of ways, but what they signed and sealed was finally settled.(6) 
 One learned judge held, that where parties came to an under- 
 standing, and reduced the contract to writing, by that alone they 
 are afterwards to be bound, unless some fraud can be shown. 
 Even if there had been a representation it would not avail. If 
 a man brought him a horse, and made any representation what- 
 ever of his quality and soundness, and afterwards they agreed in 
 writing for the purchase of the horse, that shortens and corrects 
 the representation, and whatever terms are not contained in the 
 contract do not bind the seller, and must be struck out of the 
 case.(c) It is a conclusion of law that where parties are making 
 an agreement by parol, and subsequently reduce it into writing, the 
 writing constitutes the contract. Where they discuss a question 
 in the morning and in the afternoon put down the result in writ- 
 ing, the inference is that they mean to abide by what they have 
 written. If there be a discrepancy between the words and the 
 writing, there cannot be a doubt that the writing will, as a mat- 
 ter of law, prevail, (c?) 
 
 4. But fraud is an exception. Mere representations, not em- 
 bodied into the contract, are not a fraud. Where the representa- 
 tions do amount to a fraud, the purchaser, although the contract 
 is silent on that head, has been allowed to recover damages,(e) 
 or to avoid the contract.(/) 
 
 (6) Haynes v. Hare, 1 H. Bla. 664. 460 ; Herndon v. Henderson, 41 Miss. 
 
 (c) Pickering v. Dowson, 4 Taunt. 779; 584 ; Cinninnati, &c. R. R. Co. v. Pearce, 
 
 post. [See 1 Greenl. Ev. § 281.J 28 Ind. .502; Snyder i/. Griswold, 37 111. 
 
 (rf) Knight V. Barber, 16 M. & W. 66, 216 ; Van Buskirk u. Day, 32 111. 260; 
 
 per C. B. ; Fawkes v. Lamb, 8 Jnr. N. S. Kent v. Carcaud, 17 Md. 291.] 
 385 ; [Story Sales (4th ed.), §§ 137, 360 ; (e) Stevens v. Dobell, 3 B. & C. 623 ; 
 
 Kain v. Old, 2 B. & C. 627, 634 ; Carter Taylor w. Green, 8 C. & P. 316 ; Fuller v. 
 
 V. Hamilton, 11 Barb. 147; Hakes v. Wilson, 3 Q. B. 58, 68 ; /)0S<, ch. 5, s. 5. 
 Hotchkiss, 23 Vt. 231 ; Wynn v. Cox, 5 (/) Hutchinson v. Morley, 7 Sco. 341 ; 
 
 Geo. 373; Frost v. Blanchard, 97 Mass. [Hough v. Richardson, 3 Story, 690; 
 
 155 ; Boardman v. Spooner, 13 Allen, 353 ; Doggett v. Emerbon, 3 Story, 700 ; Pren- 
 
 ChittyContr. (10th Am. ed.) 114, note (r); tiss v. Russ, 16 Maine, 30; Smith v. 
 
 Shaw C. J. in Atwood v. Cobb, 16 Pick. Richards, 13 Peters (U. S.), 26 ; Daniel v. 
 
 231, 232; Parkhurst v. Van Cortlandt, 1 Mitchell, 1 Story, 172; Hazard v. Irwin, 
 
 John. Ch. 273; Williams v. Bacon, 2 18 Pick. 95 ; Matthews t/. Bliss, 22 Pick, 
 
 Gray, 391 ; Martin v. Thrasher, 40 Vt. 48 ; Stebbins v. Eddy, 4 Mason, 414 ; 
 VOL. I. 6 
 
82 
 
 AGENT. 
 
 [CH. I. § IV. 
 
 5. If a man at the request of another enter into a contract for 
 a purchase, and pay the price and obtain the subject, the princi- 
 pal cannot, in answer to an action for the money paid to his use, 
 object *that the contract was not in writing as required by the 
 statute of frauds. (g-) 
 
 6. As agreements for sale of estates are generally entered 
 into by the attorneys of the parties, it may be proper to observe 
 that, where an attorney enters into an agreement on behalf of 
 his principal, the agreement should be made and signed in the 
 name of the principal, by him as attorney; for if an attorney 
 covenant in his own name for himself, his heirs, &c., he will him- 
 self be personally bound, though he be described in the instru- 
 ment as covenanting for and on the part of his principal.(A) If 
 
 Cochrane v. Cummings, 4 Dall. 250 ; 
 Morris Canal Co. v. Everett, 9 Paige, 
 168.] 
 
 (g) Pawle v. Gun, 4 Bing. N. C. 445. 
 
 {h} Appleton v. Sinks, 5 East, 148 ; 
 Kendray v. Hodson, 5 Esp. 228 ; Norton v. 
 Herron, 1 Ey. & Mo. 229 ; 1 C. & P. 648 ; 
 Spittle V. Lavender, 1 Moo. 270 ; Gray v. 
 Gutteridge, 1 Man. & Ry. 614 ; Duke of 
 Norfolk V. Worthy, 1 Camp. 337 ; Bovfen 
 V. Morris, 2 Taunt. 375 ; Pell v. Stephens, 
 2 My. & Ke. 334 ; Gahy v. Driver, 2 Yo. 
 & Jer. 549 ; Humble v. Hunter, 12 Q. B. 
 310 ; Jenkins i). Hutchinson, 13 Q. B. 
 744 ; Jones v. Littledale, 6 Ad. & El. 486 ; 
 Magee v. Atkinson, 2 M. & W. 440; 
 Tanner v. Christian, 4 E. & B. 591 ; Len- 
 nard v. Eobinson, 5 E. & B. 125 ; Green 
 V. Kopke, 18 C. B. 549 ; Gillett v. Offer, 
 18 C. B. 905 ; supra, s. 3, pi. 8, 9, 10. 
 [In Mears v. Morrison, 1 Breese, 172, it is 
 said that the usual and appropriate method 
 of executing a deed or other writing by 
 an agent or attorney, is for the agent or 
 attorney to sign his principal's name, and 
 then his own as agent or attorney. Sign- 
 ing in the following manner, without 
 mentioning the name of the principal, is 
 not binding on the principal : to wit, " A. 
 B., agent." See 1 Dart V. & P. (4th Eng. 
 ed. ) 1 70, 1 7 1 . No particular form of words, 
 however, is necessary ; but the capacity in 
 which the agent acts must appear on the 
 
 [57] 
 
 face of the instrument ; and where this is 
 the case it is sufficient. Magill u. Hins- 
 dale, 6 Conn. 464. If the name of the 
 principal is signed, it seems to be indiffer- 
 ent, whether it be before or after that of 
 the attorney. Magill v. Hinsdale, 6 Conn. 
 464; Campbell v. Baker, 2 "Watts, 83; 
 Hovey v. Magill, 8 Conn. 680; Shelton 
 V. Darling, 2 Conn. 435 ; Parker v. Wins- 
 low, 7 El. & Bl. 944; Story Agency 
 (6th ed.), § 154 ; see also Stinchfield u. 
 Little, 1 Greenl. 231 ; Elwell v. Shaw, 1 
 Greenl. 339; S. P. 16 Mass. 42; Johnson 
 V. Johnson, 1 Dana, 368 ; Fowler v. 
 Shearer, 7 Mass. 14; Copeland v. Mer- 
 cantile Ins. Co. 6 Pick. 198 ; Stackpole 
 V. Arnold, 11 Mass. 27 ; Clapp v. Day, 2 
 Greenl. 30 ; Key v. Parnham, 6 H. & 
 John. 418; Spencer v. Eield, 10 Wend. 
 87 ; Dubois v. Del. & Hud. Canal Co. 
 4 Wend. 285 ; Minard v. Mead, 7 Wend. 
 78 ; Townsend v. Cowing, 23 Wend. 435 ; 
 Stanton o. Camp, 4 Barb. 274 ; Skinner 
 ii. Dayton, 19 John. 568 ; Marcy v. Beek- 
 man Iron Co. 9 Paige, 188; North River 
 Bank u. Aquee, 3 Hill, 263 ; Clark v. 
 Courtney, 5 Peters (U. S.), 318; Heffer- 
 nan u. Adams, 7 Watts, 116; Grubbs o. 
 Wiley, 9 Sm. & M. 29. If a bond sets 
 forth that A. B., as agent for C. D., legally 
 appointed for that purpose, binds the said 
 C. D. to make title, &c., and it is executed 
 thus, "A. B. (seal), agent for C. D," it is 
 
CH. I. § IV.J AGENT : COMMISSION : DEPOSIT. 83 
 
 he had no authority to make the contract, or exceeded his au- 
 thority, he may be personally liable.(i) A personal undertaking 
 by a solicitor at a sale to procure certain evidence of the title, 
 &c., cannot be enforced in a summary way under the summary 
 jurisdiction of the court. (A) 
 
 7. Where an estate is sold in lots, whether by public auction 
 or private contract, it may be advisable for the vendor to take 
 attested copies of the parcels included in the different convey- 
 ances ; in order to satisfy a cautious purchaser of any part of 
 the estate, that no part bought by him is included in any of the 
 conveyances to the other purchasers. 
 
 8. If a man agree to get another so much for his estate, and 
 actually provide a purchaser with whom the owner agrees for 
 the sale of the property, at the sum stipulated, and a deposit is 
 paid, the first agreement will be performed, although the pur- 
 chaser cannot perform the agreement, if the seller let him off, and 
 retain the deposit as a forfeiture.(/) 
 
 9. Where a man had bought an estate and paid a deposit, but 
 the title had not been made out, and being desirous of compro- 
 mising with his creditors, he applied to the seller to cancel the 
 contract and return the deposit, which the latter refused to do, 
 but said that he would never sue the purchaser on the contract, 
 
 the deed of C. D., provided the agent's note, the fact need not appear in the note 
 
 authority is sufficient. Darning v. Bullitt, but may be proved by parol. The rule, 
 
 I Blackf. 241 ; Hunter v. Miller, 6 B. in reference to the mode of executing an 
 
 Mon. 612. The rule of law, that an agent instrument by an agent, seems also to be 
 
 binds himCself and not his principal, unless relaxed in the case of a sealed contract, 
 
 he nses thp name of the principal, applies where the seal is not necessary to the 
 
 only to sealed instruments. In contracts validity of the instrument. Evans v. 
 
 not under seal, if the agent, having au- Wells, 22 Wend. 234 ; see Lawrence v. 
 
 thority, intend to bind his principal and Taylor, 5 Hill, 107, 113; Tapley v. But- 
 
 not himself, it will be sufficient if it appear terfield, 1 Met. 315; Despatch Line of 
 
 in such contract that he acts as agent. Packets v. Bellamy Manuf. Co. 12 N. H. 
 
 Andrews ». Este, 2 Fairf 267; New Eng. 205, 234-238; Hopkins v. Mehaffey, 11 
 
 Marine Ins. Co. v. De Wolf, 8 Pick. 56; Serg. & R. 129.] 
 
 Kice V. Gove, 22 Pick. 158, 161 ; Evans v. ' [i) Jones v. Downman, 4 Q. B. 235, n.; 
 
 Wells, 22 Wend. 324 ; Tovrasend v. Cow- [S. C. 9 Jnr. 454, Ex. Oh. ;] Downman v. 
 
 ing, 23 Wend. 435 ; Pentz v. Stanton, 10 Williams, 7 Q. B. 103 ; Lewis v. Nichol- 
 
 Wend. 271; Townsend u. Hubbard, 4 son, 18 Q. B. 503; supra, s.S. [See ajife. 
 
 Hill, 351 ; Story Agency (6th ed.), § 155. 44, 53, & notes.] 
 In Morse v. Green, 13 N. H. 32, it was (k) Peart v. Bushell, 2 Sim. 38. 
 held that if the agent be authorized to (l) Horford u. Wilson, 1 Taunt. 12. 
 subscribe the name of his principal to a 
 
84 
 
 NUISANCE. 
 
 [CH. I. § IV. 
 
 and thereupon the compromise with the creditors proceeded'; it 
 was held that it would have been a fraud in the seller if he had 
 attempted to enforce the contract, and therefore the purchaser 
 was not allowed to recover the deposit, although the title had 
 not been made out.{OT) 
 
 *10. A purchaser should be cautious in buying a.? property 
 where a nuisance exists; for if a nuisance be created, and a man 
 purchase the premises with the nuisance upon them, though 
 there be a demise for a term at the time of the purchase, so 
 that the purchaser has no opportunity of removing the nui- 
 sance, yet by purchasing the reversion he makes himself liable 
 for the nuisance. But if after the reversion is purchased, the 
 nuisance be created by the occupier, the reversioner incurs no 
 liability ; yet, in such a case, if there was only a tenancy from 
 year to year, or any short period, and the landlord chose to renew 
 the tenancy after the tenant had created the nuisance, that would 
 make the landlord liable. He is not to let the land with- the nui- 
 sance upon it.(w) 
 
 (m) Clark v. Upton, 3 Man. & Ry. 89. 
 
 (!i) The King v. Pedly, 1 Ad. & El. 827, 
 per Littledale J. ; Lucas t;. James, 7 
 Hare, 418; Todd v. Plight, 9 C. B. N. S. 
 377. [If the owner of land, on which a 
 nuisance is created, lets the land, an action 
 for the continuance will lie ; for he who 
 has been the author of a nuisance, cannot 
 exonerate himself fi-om liability therefor 
 by alienating it and the land under it. 3 
 Dane Abr. 57; Curtice v. Thompson, 19 
 N. H. 471. Where a nuisance is created 
 by a person on his own land by obstruct- 
 ing a watercourse, to the injury of the 
 land of another, and the party erecting 
 the nuisance then conveys the premises to 
 a purchaser with waiTanty, he neverthe- 
 less remains liable in an action on the' 
 case for the damjige caused by the contin- 
 uance of the nuisance subsequent to the 
 conveyance: Waggoner v. Jermaine, 3 
 Denio, 206, which limits and explains the 
 decision in Blunt v. Aiken, 15 Wend. 522. 
 In such cases an action for the nuisance 
 lies, at the option of the pai-ty injured, 
 either against the person who originally 
 
 [58] 
 
 created it, or the person in possession of 
 the premises who suffers it to continue ; so 
 that, if a person erects a mill to the nui- 
 sance of another, every occupier of it 
 afterwards, who permits a continuance of 
 the nuisance, is liable to an action. Sta- 
 ples V. Spring, 10 Mass. 72; Baldwin o. 
 Calkins, 10 Wend. 167 ; Beidelman r. 
 Foulke, 5 Watts, 308 ; Pillsbury v. Moore, 
 44 Maine, 156; Wendell v. Pratt, 12 
 Allen, 464; Hughes v. Mung, 3 H. & 
 M'Hen. 441. But where a party was not 
 the original creator of a nuisance, he must 
 have notice of it, and a request must be 
 made to remove it, before any action can 
 be brought against him. Penrudduck's 
 Case, 5 Rep. 101 ; Brent v Hadden, Cro. 
 Jac. 555 ; Pierson v. Glean, 2 Green (N. 
 J.), 36 ; Plummer v. Harper, 3 N. H. 88 ; 
 Johnson v. Lewis, 13 Conn. 303 ; East- 
 man V. Amoskeag Manuf. Co. 44 N. H. 
 143; Noyes u. Stillman, 24 Conn. 15; 
 Woodman v. Tufts, 9 N. H. 88 ; Pillsbury 
 V. Moore, 44 Maine, 156, 157 ; Branch v. 
 Doane, 17 Conn. 402, 418. As to the 
 kind of notice required, see Carleton u. 
 
CH. I. § IV.J DRAINS. FENCES. 85 
 
 11. Where the owner of two or more adjoining houses sells 
 or conveys one of the houses, the purchaser of such house will 
 be entitled to the benefit of all the drains from his house and 
 subject to all the drains necessary to be used foi: the enjoyment 
 
 ' of the adjoining house, and that without express reservation or 
 grant, inasmuch as he purchased the house such as it is ; (o) and 
 the first purchaser of one of the houses cannot stop up the drains 
 as against the subsequent purchaser of the other house.(o^) 
 
 12. In regard to the purchaser's liability where he is in pos- 
 session. Holt C. J. laid it down that, if a man has two houses 
 contiguous, and one has a house of office which is separated 
 from the cellar of the other by the wall which keeps in the filth 
 of the house of office, and he sells that house, the vendee must 
 keep in the filth of the house of office so that it shall not run 
 in upon the other house. And it would have been all one if 
 the vendor had sold the house with the cellar; then he must have 
 kept the wall of the house of office, so as to have kept the filth 
 in, for every man must take care to do his neighbor no damage. 
 So if a man has two pieces of pasture which lie open to one an- 
 other, and sells one piece, the vendee must keep in his cattle so 
 as they shall not trespass upon the vendor. If a man erects a 
 house and a house of office, and the latter adjoins to a vacant 
 piece of ground belonging to him, which keeps in the filth, and 
 then sells the vacant piece of ground, the vendee, if he would 
 dig a cellar by the house of office, must build a wall to it.(p) 
 The owner of two adjoining closes separated by a fence and 
 gate, is of course, not bound to keep up the fence and gate ; nor 
 
 Redington, 21 N. H. 291 ; Bunker v. Carbrey v. Willis, 7 Allen, 364 ; Randall 
 
 Bunker, cited 21 N. H. 312.] v. McLaughlin, 10 Allen, 366; Philbrick 
 
 (o) Pyer v. Carter, 1 H. & N. 916; ». Ewing, 97 Mass. 133; Dunklee «. Wil- 
 
 Ewart V. Cochrane, 7 Jur. N. S. 925 ; ton Railroad Co. 24 N. H. 489 ; Lamp- 
 
 Baird v. Fortune, lb. 926. man v. Milks, 21 N. Y. 507 ; Seymour v. 
 
 (fli) [This subject is very fully consid- Lewis, 2 Beasley (N. J.), 439 ; Elliott v. 
 
 ered in Angell Watercourses (6th ed.), Sallee, 14 Ohio St. 10; White v. Chapin, 
 
 §§ 166a -166v; Washburn Easements 12 Allen, 518 ; Russell u. Harford, L. R. 
 
 (2d ed.), 41, 54, et seq., 130, 386, 618, et 2 Eq. 507 ; Suffield u. Brown, 10 Jur. N. 
 
 seq.; Dodd v. Burchell, 8 Jur, N. S. S. Ill; Crossley v. Lightowler, L. R. 2 
 
 1180 ; 1 H. & C. 113 ; Hall ». Lund, 1 H. Ch. Ap. 486.] 
 
 & C. 681 ; Morland v. Cook, L. R. 6 Eq. (p) Tenant v. Goldwin, 2 Ld. ' Ray. 
 
 252, 263, 265 ; Thayer v. Payne, 2 Cush. 1089; 1 Salk. 21, 360; Alston v. Grant, 3 
 
 327 ; Johnson v. Jordan, 2 Cush. 234 ; E. & B. 128. 
 
86 
 
 SUPPOET TO LAND SOLD. 
 
 [CH. I. § IV. 
 
 does he, by a sale of one of the closes,' impose any such liability 
 on himself or on the purchaser ; nor by a subsequent 'sale of 
 the remaining close does he cast any such liability on the later 
 purchaser. There must be some specific contract to bind either 
 party.(9) 
 
 13. A vendor selling part of his land cannot so deal with that 
 which he retains as to cause what he has granted to sink or fall, 
 but the extent of the support to be left must depend on the cir- 
 cumstances of each case.(r) 
 
 {q) Boyle u. Tamlyn, 6 B. & C. 329. 
 [A stipulation in a deed poll, that the 
 grantee, his heirs and assigns, shall erect 
 and perpetually maintain a fence between 
 the granted premises and land adjoining, is 
 not a covenant running with the land, but 
 is merely a personal agreement of the 
 grantee, made as part of the consideration 
 of the grant, and evidenced by his accept- 
 ance of the deed, which may bind him 
 and his legal representatives, but does 
 not affect the estate. Parish u. Whitney, 
 3 Gray, 516 ; Plymouth v. Carter, 16 Pick. 
 183 ; but see Kellogg v. Eobinson, 6 Vt. 
 276.] 
 
 (r) Caledonian Ry. Co. v. Sprot, 2 
 Macq. H. of L. 449 ; Roberts v. Haines, 6 
 El. & Bl. 643 ; Haines v. Roberts, 7 El. & 
 Bl. 625 ; Rowbotham v. Wilson, 6 El. & 
 Bl. 593 ; 8 El. & Bl. 123 ; [8 H. L. Cas. 
 a48 ;] Backhouse v. Bonomi, 27 L. J. N. 
 S. 378 ; [S. C. 9 H. L. Cas. 503 ; 7 Jur. 
 N. S. 809; Ellis, B. & B. 622, 646;] 
 Brown v. Robins, 4 H. & N. 186 ; Bibby 
 V. Carter, Id, 153 ; North Eastern Ry. 
 Co. V. Elliot, 1 J. & H. 145 ; [Washburn 
 Easements (2d ed.), ch. iv. sect 1, p. 
 
 [59] 
 
 511, et seq.; Richards v. Rose, 9 Exch. 
 218; Nicholls v. Gayford, 9 Exch. 702 
 Humphries v. Brogden, 12 Q. B. 739 
 Murchie v. Black, 11 Jur. N. S. 608 
 North Eastern Railway Co. v. Elliott, 1 
 J. & H. 145 ; 2 De G., F. & J. 423 ; 10 
 H. L. Cas. 333 ; Thnrstou v. Hancock, 
 12 Mass. 226; Foley v. Wyeth, 2 Allen, 
 131 ; Lasala v. Holbrook, 4 Paige, 169 ; 
 Radcliff V. Mayor, &c. of Brooklyn, 4 
 Comst. 195; Richardson u. Vei-mont Cen- 
 tral Railroad, 25 Vt. 465 ; Napier v. 
 Bulwinkle, 5 Rich. 311 ; Farrand v. Mar- 
 shall, 19 Barb. 380 ; 21 Barb. 409 ; Charless 
 V. Rankin, 22 Missou. 566 ; M'Guire v. 
 Grant, 1 Dutch. 356 ; Richart v. Scott, 7 
 Watts, 460 ; Hunt v. Peake, Johns. 705 ; 
 Solomon v. Vintners' Co. 4 H. & N. 585.] 
 Where mines are granted, see Dugdale 
 V. Robertson, 3 K. & J. 695 ; Rogers v. 
 Taylor, 2 H. &.N. 828; [Wakefield v. 
 Duke of Buccleuch, L. R. 4 Eq. 613; 
 Popplewell V. Hodkinson, L. R. 4 Ex. 
 248.] As to a covenant for quiet enjoy- 
 ment by the owner of the land in a demise 
 of the mines, see Shaw v. Stenton, 2 H. & 
 N. 858. 
 
CH. I. § v.] 
 
 SALES BY TRUSTEES, ETC. 
 
 SECTION V. 
 
 OF SALES BY PARTIES NOT BEING OWNERS. 
 
 2. Valuation of property. 
 
 4. May sell privately, or by auction.^ 
 
 5. Insolvent's estates to be sold by auction. 
 
 6. Assignees of bankrupts not to delay sale. 
 
 7. Sale by private contract not within au- 
 
 thority to sell by auction; acts of 
 agents. 
 
 8. Sale in lots. 
 
 9. Sale by auction valid, although not at 
 
 fuU price. 
 
 Trustees must use reasonable diligence. 
 Time of sale. 
 
 10. i 
 11-! 
 
 12. 
 13. 
 14. 
 16. 
 17. 
 18. 
 19. 
 20. 
 
 21. 
 
 22. 
 
 2-3. 
 24. 
 25. 
 26. 
 27. 
 
 29. 
 30. 
 31. 
 
 32. 
 
 j Where sale will be stopped. 
 
 False representation by trustees. 
 
 Conditions of sale. 
 
 Liability of trustees. 
 
 Where assignees may buy in. 
 
 Where they may have a reserved bidding ; 
 
 mortgagee bidding. 
 Where damages against the assignees fall 
 
 on the estate. 
 Sale by creditors' assignees, under the 
 
 act of 1849. 
 Assignees putting up an estate. 
 Abandonment by assignees of lease. 
 Deposit repaid without a bill filed. 
 Biddings for bankrupt's estate opened. 
 Power to mortgagee to sell; mortgagor 
 
 cannot buy. 
 Conditions of sale. 
 Sales by private contract. 
 Leaving part of purchase money on 
 
 mortgage. 
 Purchase by mortgagee. 
 
 33. Expenses. 
 
 34. Where a power to sell ci^n be given to a 
 
 mnrto-flcrftft. 
 
 43 
 
 44. 
 
 35. Sale, where first and second mortgages. 
 
 36. Charges of mortgagee, an auctioneer. 
 
 37. What is proper notice. 
 
 38. Effect of notice to purchaser of want of 
 
 notice, &c., to mortgagor. 
 
 39. Purchaser bound by notice of tender. 
 
 40. Mortgagee cannot bid and conduct sale. 
 
 41. Evidence of default in payment. 
 
 42. Effect of bankruptcy. 
 BiU by mortgagee for administration of 
 
 assets. 
 Powers to mortgagees by 23 & 24 Tict. 
 c. 145. 
 
 45. Liability to make a good title. 
 
 46. And compensation for misdescription. 
 
 47. Cannot sell to themselves. 
 
 * 48. Trustee of legal estate to convey to 
 trustees to sell. 
 
 49. Tenant for life, when entitled to rents. 
 
 50. Sales by trustees under powers of sale 
 
 and exchange. 
 Cannot be controlled ; how to sell. 
 Sale and new purchase by tenant for 
 
 life. 
 Contract of trustees binds the estate. 
 Powers to trustees for sale by 23 & 24 
 
 Vict. c. 145. 
 
 55. Trustee's liability, for misapplication of 
 
 purchase money — to costs. 
 
 56. Time for sale limited, extended by 
 
 equity. 
 
 57. Irregular sale supported. ' 
 
 51. 
 52. 
 
 53. 
 54. 
 
 1. Where the seller is a trustee for sale, an assignee of a 
 bankrupt or insolvent, or a mortgagee with a power to sell, he 
 has to consider, not only his obligations to the purchaser, but 
 also his liabilities to his cestui que trust or mortgagor.(»^) 
 
 2. Of course trustees should satisfy themselves of the value 
 of the property they are empowered to sell ; and although it is 
 
 (ai) [See Lewin Trusts (5th Eng. ed.), 313.] 
 
 [60] 
 
88 SALES BT TRUSTEES, ETC. [CH. I. § V. 
 
 not necessary in every case to have a valuation made, yet they 
 will be justified in taking that step, and not allowing. the estate 
 to go for less than the valuation ; (a) but at last trustees, like 
 other sellers, must be guided by that common proof of value, 
 that a thing is worth what it will fetch. 
 
 3. The usual words, that the trustees may sell for such a price 
 as shall appear to them to be reasonable, must be construed, at 
 least in a question between the trustee^ and the cestui que trust, 
 after they have with due diligence examined.(6) 
 
 4. A sale by trustees, &c., may, unless there be a restriction, 
 be made by private contract or by public auction. Even in the 
 case of assignees of bankrupts, there is nothing in the statutes to 
 prevent them from selling by private contract; it may be fre- 
 quently advantageous for the creditors, and with their consent 
 would be unobjectionable. It is however a circumstance of evi- 
 dence not to be disregarded upon a complaint that the property, 
 by a different mode of disposing of it, might have been rendered 
 more productive. (c) 
 
 5. The real estate of an insolvent was, by provisions now re- 
 pealed, directed to be sold by public auction, with the sanction 
 of the creditors.(6?) , But if the scheme of selling by auction had 
 been tried and failed, the assignees were justified in selling by 
 private contract.(e) And a purchaser may be bound, although 
 the assignee may not have strictly followed the directions of the 
 creditors.(/) The insolvent's estate was also directed to be sold 
 within six months after the appointment of the assignee, or 
 within such other time as *the court for the relief of insolvents 
 shall direct.(g-) This has also been repealed, and the new law 
 
 (a) 5 Ves. 680, 681. (d) 1 & 2 Vict. c. 110, s. 42, 47, 48 ; 
 
 (6) 10 Ves. 309; as to rights of preemp- repealed by 24 & 25 Vict. c. 134, Sched. 
 
 tion giTcn through trustees, 11 Ves. 454, 6.; see s. 127 & 133.] 
 
 455, post, ch. 5. (c) Mather v. Priestman, 9 Sim. 352 ; 
 
 (c)PerLordEldon,£a;;)arteDunman, 2 [Tyson v. Mickle, 2 Gill, 383; Gibbs v. 
 
 Rose, 66; [Lewin Trusts (5th Eng. ed.), Cunningham, 1 Md. Ch. 44; Gibson's 
 
 321 ; Ex parte Hurley, 1 D. & C. 631 ; Case, 1 Bland, 138.] 
 
 Davey v. Durrant, 1 De G. & J. 535; (/) Wright v. Maunder, 4 Beav. 512; 
 
 Huger V. Huger, 9 Rich. Eq. 217 ; Harper see Borell v. Dann, 2 Hare, 440. 
 
 V. Hayes, 2 De G. & J. 542 ; Ashurst v. (g) Sect. 47 ; repealed by 24 & 25 Vict. 
 
 Ashurst, 13 Ala. 781 ; Minuse u. Cox, -5 c. 134, Sch. G. ; Doe u. Evans, 1 Cro. & 
 
 John. Ch. 441 ; Johnson v. Dorsey, 7 Gill, Mee. 450. * 
 269 ; Hintze v. Stingel, 1 Md. Ch. 283.] 
 
 [61] 
 
CH. I. § v.] TRUSTEES, ETC., SELLING BY AUCTION. 89 
 
 provides the like remedy for both bankrupts and insolvents. A 
 purchaser from the assignees of an insolvent has been protected 
 by an injunction in equity against trespass and waste by the in- 
 solvent and persons employed by him after repeated acts by 
 ttiem. (7i) 
 
 6. The bankrupt's estate should be sold without delay, and 
 assignees will not be justified in postponing the sale against the 
 demand of any individual creditor.(i) There appears to have 
 been a difference of opinion between Lord Thurlow and Lord 
 Eldon upon the point whether the chancellor had power to post- 
 pone the sale against the demand of a creditor,(A;) although Lord 
 Eldon fully assented to Lord Thurlow's doctrine as a general 
 rule.(Z) In a proper case, with the consent of the assignees, an 
 offer has been accepted from even the solicitor to the fiat, instead 
 of resorting to an auction. (m) 
 
 7. A sale by private contract by an agent authorized to sell by 
 auction is not valid, although the price be greater than was re- 
 quired, (w) nor could such a sale by trustees in the like case be 
 supported. (w^) The agent in every case must act within his au- 
 thority. An authority from a co-trustee cannot be inferred from 
 the fact that the alleged' agent is a solicitor, and conducts the 
 ministerial business of the trust, nor can a trustee lawfully dele- 
 gate to his co-trustee an authority to sell the estate by private 
 contract without reserving to himself a veto upon the eon- 
 tract.(o) 
 
 8. The sale may be made in lots or altogether, as may be 
 deemed most advantageous.(o^) And where the trust is to sell 
 to raise a specified sum and the expenses, and the estate is put 
 up in lots, the purchaser of the second lot cannot object that thes 
 first produced the amount of the principal sum, and therefore, 
 
 (h) Hodgson v. Dace, 28 L. T. 155. Loft, 8 Jur. 206. And a custom among 
 
 (i) Ex parte Goring, 1 Ves. jr. 168. auctioneers to sell at private sale, in such 
 
 {k) Ex parte Kendall, 17 Ves. 519, 522. a case Where the auction sale has proved 
 
 (I) 6 Ves. 622, 623. ineffectual, has been held to confer no 
 
 (m) Ex parte Watts, 1 De G. B. C. such right. 3 Fos. & Fin. 234.] 
 
 265 ; infra, pi. 19-26. (n') [See Greenleaf v. Queen, 1 Peters 
 
 (n) Daniel a.. Adams, Am. 495 ; Bulteel (U. S.), 145. 
 
 V. Lord Abinger, 6 Jar. 410; post, ch. 5; (o) Bulteel v. Lord Abinger, 6 Jur. 410. 
 
 [Story Agency (6th ed.), §§ 27, 108; [See Berger u. Duff, 4 John. Ch. 368.] 
 
 Wilkes V. Ellis, 2 H. Bl. 555; In re (oi) [See Rose «. Mead, 5 Oilman, 171.] 
 
90 LIABILITY OF TRUSTEES, ETC. [CH. I. § V. 
 
 that the sale of the second lot was to a great extent unneces- 
 sary, (p) 
 
 9. Where a trust estate was put up to sale by auction in sev- 
 eral lots, upon the deliberate opinion of the auctioneer that the 
 estate would sell most advantageously in lots, and such sale hav- 
 ing been tried without effect, the estate was put up at the same 
 sale in one lot and sold, so that competition was not invited by 
 any previous notice that such a sale would take place, the pur- 
 chaser was, upon slight circumstances, refused a specific perform- 
 ance. (g) 
 
 10. Where the sale by trustees, &c., is made by auction, with 
 all ' those circumstances of caution which a provident owner 
 would have applied in the case of his own property, it would 
 form no objection to the specific performance of the contract 
 that the estate had not obtained a full price. Those who sell by 
 auction submit themselves to the chance of competition, and 
 must abide by it.(r) 
 
 11. Every trust deed for sale is upon the implied condition 
 that the trustees will use all reasonable diligence to obtain the 
 best price ; (s) and that in the execution of the trust they will 
 pay equal and fair attention to the interest of all persons con- 
 cerned. If trustees or those who act by their authority fail in 
 reasonable diligence — if they contract under circumstances of 
 
 (p) Thomas v. Townsend, 16 Jur. 736. (r) Per Leach V. C. Ord v. Noel, 5 
 
 [See Gray v. Shaw, 14 Missou. 341 ; Mad. 440 ; 3 Mer. 208. 
 
 Delaplaine v. Lawrence, 3 Comst. 301 ; (s) See and consider Goodwin v. Field- 
 
 Ewing V. Higby, 7 Ohio, 98 ; Lewin ing, 4 De G., M. & G. 90 ; [Ord v. Noel, 5 
 
 Trusts (5th Eng. ed.), 323. But the Mad. 438, 440; Hatnper u. Hayes, 2 De 
 
 court may enjoin a sale where the pur- G., I". & J. 542 ; Montague v. Dawes, 14 
 
 poses of the trust are satisfied. Neely v. Allen, 369. A trust to sell land as build- 
 
 Steele, 1 Barb. Eq. 240.] ing land, has been held to authorize the 
 
 (q) Ord V. Noel, 5 Mad. 438 ; Hobson trustees to set it out and make the neces- 
 V. Bell, 2 Beav. 17; Harper v. Hayes, 2 sary roads, and pay the expenses out of 
 GifF. 210. [This last case was overruled the proceeds of the sale. 1 Dart V. & P. 
 in 2 De G., F. & J. 542, where it was held (4tb Eng. ed.) 62 ; Cooksou u. Lee, 23 L. 
 that the fact that a trustee for sale by J. Ch. 473. And so trustees for sale may 
 public auction or prirate contract, has not do all reasonable acts which they are jjro- 
 promoted competition by asking one of fess^onally advised are proper for the pur- 
 two persons proposing to purchase by pose of clearing the title and completing 
 private contract, to bid higher before the sale. Eorshaw v. Higginson, 8 De G., 
 closing with a rival bidder, does not fur- M. & G. 827.] 
 nish sufficient ground for setting aside or 
 cancelling the contract.] 
 
 [62] 
 
CH. I. § v.] LIABILITY OF TEUSTEESj ETC. : TIME OF SALE. 91 
 
 haste and improvidence — if they make the sale with a view to 
 advance the particular pm-poses of one party interested in the 
 execution of the trust at the expense of another party, a court 
 of equity will not enforce the specific performance of the con- 
 tract, however fair and justifiable the conduct of the purchaser 
 may have been. The remedy of the law is open to such a pur- 
 chaser, but he has no claim to the assistance of a court of 
 equity.(«) 
 
 12. The usual direction is, to sell with all convenient speed, 
 which is no more than the ordinary duty implied in a trustee, 
 and there must necessarily be some discretion which the trustee 
 may safely exercise ; (m) and if there are several trustees, one is 
 not bound to surrender his opinion as to the fittest time of sale 
 to the other ; (x) and acting providently they may buy in the 
 estate ; but trustees who do buy in an estate and delay the re- 
 sale, incur a great risk of answering for any loss which may be 
 sustained, (t/) Where the trust is for sale with a view to a con- 
 version out and out, the trustees must sell at once, and will not 
 be justified in first mortgaging the property.(z) 
 
 13. The court has refused to stay a sale by trustees, although 
 
 («) Per Leach "V. C. 5 Mad. 440, 441 ; lieves them of the trust, or authorizes the 
 
 Bridger v. Rice, 1 J. & W. 74 ; post, ch. delay ; Cuff v. Hall, 1 Jur. N. S. 972 ; 
 
 5; Turnery. Harvey, Jac. 178; Whites, and where a sale has been postponed 
 
 Cuddon, 8 CI. & Fin. 766. until long after the time at which it ap- 
 
 («) Garret v. Nohle, 6 Sim. 504; Bux- parently ought to have been effected, a 
 
 ton u. Buxton, 1 My. & Cra. 80; [Fry u. prudent purchaser should ask for some 
 
 Fry, 27 Beav. 144. But in cases of clearly explanation of the delay. Stronghill v. 
 
 improper, delay, a trustee will be responsi- Anstey, 1 De G., M. & 6. 635 ; and see 
 
 ble for any consequential loss to the estate, judgment in Devayijes v. Robinson, 24 
 
 Pattenden v. Hobson, 22 L. J. Ch. 697; Beav. 86 ; Lewin Trusts (5th Eng. ed.). 
 
 Cuff 0. Hall, 1 Jur. N. S. 972 ; Devaynes 337. Where trustees are directed to sell 
 
 V. Robinson, 24 Beav. 86 ; Fry v. Fry, 27 " with all convenient speed," or " so soon 
 
 Beav. 144 ; tewin Trusts (5th Eng. ed.), as conveniently may be," but the time for 
 
 314. A direction to sell with all reason- sale is left entirely to their own discretion, 
 
 able expedition and within a specified they may not arbitrarily postpone the 
 
 time, does not preclude a sale after the sale for an indefinite period ; especially in 
 
 expiration of such period, or incapacitate cases where such postponement may have 
 
 the trustees from making a good title, to the effect of varying the relative rights of 
 
 a purchaser; but as between themselves tenants for life and remainderman. Walker 
 
 and their cestuis que trust (Pearce v. v. Shore, 19 Ves. 391 ; Lewin Trusts 
 
 Gardner, 10 Hare, 287; Cuff v. Hall, 1 (5th Eng. ed.), 314.] 
 
 Jur. N. S. 972), the onus of showing that (x) Buxton v. Buxton, 1 My. & Cra. 80. 
 
 the cestuis que trust are not prejudiced by (y) Taylor v. Tabrum, 6 Sim. 281. Qu. 
 
 the time for sale being extended, is thrown If not heard upon appeal ■? 
 
 upon the trustees, unless the court re- {z) Haldenby v. Spofforth, 1 Beav. 390. 
 
92 LIABILITY OF TRUSTEES, ETC. : CONDITIONS OF SALE. [CH. I. § V. 
 
 to be made the next day, and the notice of the intended sale was 
 alleged to be much shorter than usual, because this was not one 
 of the cases in which, on account of irreparable injury to the 
 plaintiff, the court proceeds in this summary way.(a) But where 
 a trustee to sell in a mortgage had not apprised the mortgagor 
 of his intention to proceed to a sale, the court stopped the 
 sale.(ai) If the trust for sale had been in the mortgagee him- 
 self, the court thought that the mortgagor * might, where due 
 notice had not been given, relieve himself by giving notice to 
 the purchaser, that he had filed a bill to impeach the sale.(6) 
 
 14. Although a trust for sale has been established by decree, 
 yet if there be an appeal, the court will, in a proper case, stop 
 the sale until the final decision. («) 
 
 15. If a bill is filed for the execution of the trust, a sale can- 
 not be made without the leave of the court.(c?) 
 
 16. If a trustee falsely represent the state of the incumbrances 
 to a purchaser, he would, as we have seen, be bound to make 
 good the loss sustained through his misrepresentation. (e) 
 
 17. Although a man selling his own property may sell subject 
 to such conditions as he pleases, yet trustees and assignees can- 
 not impose any condition for the benefit of the creator of the 
 trust or the bankrupt which would reduce the value of the 
 property.(/) But strict conditions of sale, although somewhat 
 unusual, will not lightly be deemed of such a depreciating char- 
 acter as to amount to a breach of trust or constitute an objection 
 to the title. ("•) 
 
 [See Stronghill v. Anstey, 1 De G., M. & thie, 11 Jur. 504; Jenkins u. Jones, 2 
 
 G. 645; Page i--. Cooper, 16 Beav. 400; Giff. 99. The jurisdiction to restrain in 
 
 Devaynes w. Robinson, 24 Beav. 86.] sucli cases rests upon the breach of trust, 
 
 {a) Sir John Pechel u. Fowler, 2 Ans. Kerr Inj. 171. See Ex parte Montgom- 
 
 542. ery, 1 Gl. & J. 338 ; Marshall v. Sladden, 
 
 (ai) [A mortgagee cannot sell pending 7 Hare, 428 Kershaw v. Kalow, 1 Jur. 
 
 a suit to redeem. Rhodes v. Buclcland, N. S. 974; Wiles v. Gresham, 1 Eq. R. 
 
 16 Beav. 212.] 348.] 
 
 (b) Anon. 6 Mad. 10; Lord Eldon (c) Jenkins ». Herries, whilst in D. P. 
 
 thought there should be an application MS. 
 
 for an injunction, infra. [See 4 Kent (d) Walker v. Smallwood, Amb. 676. 
 
 (11th ed.), 190 ; Lewin Trusts (5th Eng. (e) Sup. Intro, pi. 19. 
 
 ed.), 322; Blennerhasset v. Day, 2 B. & B. (/) 3 Mer. 268; Robinson v. Musgrove, 
 
 133 ; as to restraining a mortgagee from 2 Moo. & Ro. 92. 
 
 selling, see Matthie v. Edwards, 2 Coll. (g) Hobson v. Bell, 2 Beav. 17. [See 
 
 465 ; S. C. on ajjpeal nom. Jones u. Mat- Goodale v. Wheeler, 11 N. H. 424.] 
 
 [63] 
 
CH. I. § V.J LIABILITY OF TRUSTEES, ETC. : CONDITIONS OF SALE. 93 
 
 18. All the trustees should see that the sale is duly made, for 
 they will be responsible for the act of any to whom they delegate 
 the duty.(/j) For where several trustees sell, although there is 
 the usual clause that each shall be liable only for his own re- 
 ceipts and defaults, yet if they allow one of them to receive and 
 retain the purchase money, they will be answerable for any loss 
 occasioned by his dishonesty or insolvency.(i) As soon as a 
 trustee is fixed with knowledge that his co-trustee is misapplying 
 the money, a duty is imposed upon him to bring it back into the 
 joint custody of those who ought to take better care of it.(^) 
 And trustees who choose to concur in a sale before the time 
 appointed by the settlement should see that all parties consent, 
 and that every one of them is sui juris, or he should have an 
 indemnity ; for if such a sale by them should prove abortive, 
 they may be left to pay all the costi<.(/) 
 
 19. An assignee of a bankrupt may buy in an estate with the 
 previous consent or subsequent approbation of the creditors ; (m) 
 but if he do so of his own authority he will be deemed the pur- 
 chaser, and held to the bargain.(n) 
 
 20. Upon a sale under an order in bankruptcy upon a petition 
 by the mortgagee, the assignees are not allowed to have a mere 
 reserved * bidding, and if they buy in the estate without au- 
 thority they will be held to the purchase.(o) If they desire 
 
 (A) See 8 Pri. 166, 167. 253 ; Phillips v. Edwards, 33 Beav. 440 ; 
 
 (i) Bone V. Cook, 13 Pri. 332 ; M'Clel. Sykes v. Sheard, 2 De G., J. & S. 6 ; 33 
 
 168 ; Brice v. Stokes, ll'Ves. 319 ; [Greg- Beav. 114.] 
 
 ory V. Gregory, 2 Y. & C. 313 ; Thomp- (m) Ex parte Buxton, 1 Gl. & J. 355. 
 
 son V. Pinch, 22 Beav. 316 ; 8 De G., M. & (n) Ex parte Lewis, Ih. 69 ; as to sales 
 
 G. 560 ; Lincoln v. Wright, 4 Beav. 427 ; by assignees, see also pi. 4, 5, 6,17, supra ; 
 
 Lewin Trusts (5th Eng. ed.), 216; 2 pi. 39, infra; [Ex paile Buxton, 1 Gl. & 
 
 Story Eq. Jur. §§ 1275, 1283 ; Clark v. J. 355 ; Ex parte Baldock, 2 D. & C. 60; 
 
 Clark, 8 Paige, 152 ; Wayman v. Jones, 4 Ex parte Gover, 1 De Gex, 349. So an 
 
 Md. Ch. 500 ; Elmendorf v. Lansing, 4 auctioneer, if he bid for himself, may if 
 
 John. Ch. 562 ; Einggold v. Ringgold, 1 the principal chooses upon notice of the 
 
 H. & Gill, 11 ; Jones's Appeal, 8 W. & fact, hold the auctioneer to his bid, as pur- 
 
 Serg. 147; Edmonds v. Crenshaw, 14 chaser at the sale; and the auctioneer 
 
 Peters (U. S.), 166.] when he purchases, purchases at his own 
 
 (k) 11 Ves. 327, ;)er Lord Eldon ; [2 risk and peril. Veazie v. Williams, 3 
 
 Story Eq. Jur. § 1284 ; Perry Trusts, §§ ' Story, 625, per Story J.] 
 
 418, 419; Wayman v. Jones, 4 Md. Ch. (o) Ex parte Tomkins Ch. 23d Aug. 
 
 506; Chertsey u. Market, 6 Price, 279.] 1816; MS. App. No. 11, to Purch. ; Ex 
 
 (I) Leedham v. Chawner, 32 L. T. 221. parte Lucas, 1 Hon. & Ay. 93. 
 [See Offen v. Harman, 1 De G., F. & J. 
 
 [64] 
 
94 SALES BY ASSIGNEES IN BANKRUPTCY. [CH. I. § V. 
 
 actually to bid for the property they may have permission, but 
 then the property may be l^nocked down to them as the real 
 buyers ; (p) nor upon the sale of unincumbered property can the 
 assignees have leave to bid unless under very special circum- 
 stances. A majority of the creditors present at a meeting sum- 
 moned for the purpose cannot bind the minority.(Q') Any mort- 
 gagee, with the leave of the court first obtained, may bid at any 
 sale of the mortgaged property.(r) 
 
 21. If assignees contract to sell subject to the approbation of 
 the creditors, and the creditors approve, and consent to the con- 
 tract, and afterwards the contract is resisted on the part of the 
 estate, the damages, if any be recovered by the purchaser, must, 
 as between the assignees and the estate, be paid out of the 
 estate, and not by the assignees.(s) 
 
 22. A contract by the creditors' assignees, under the act of 
 1849, was binding on the official assignee. Whether the official 
 assignee was bound by a contract clearly founded upon a breach 
 of trust, was open to great question, but a stipulation that the 
 purchase money should be paid to the solicitor, was considered 
 not to be such a breach of trust as would induce the court to 
 say that the contract should not be performed. (/) A sale of a 
 contingent reversion by the trade assignee, under the act of 
 1849, to the bankrupt himself after his certificate has been sup- 
 ported, although the reversion fell into possession by the hap- 
 pening of the contingency within one month after the agreement 
 for sale.(M) 
 
 23. Assignees of a bankrupt are not bound to take what Lord 
 Kenyon calls a damnosa hareditas, property of the bankrupt, 
 which, so far from being valuable, would be a charge to the 
 creditors ; but they may make their election ; if, however, they 
 do elect to take the property, they cannot afterwards renounce 
 it, because it turns out to be a bad bargain. (a;) Where they 
 
 (p) In re Skinner, 1 Mon. & Ay. 81. supra, p. 61 ; see now, as to official and 
 
 (q) Ex parte Beaumont, 1 Mon. & Ay. trade assignees, 24 & 25 Vict, c.134. 
 
 304. (x) 7 East, 342 ; Turner v. Richardson, 
 
 (r) 24 & 25 Vict. c. 134, s. 132. 7 East, 336 ; Wheeler v. Bramah, 3 Ca. 
 
 ■ (s) Turner v. Harvey, .lac. 178. 370 ; Copeland v. Stephens, 1 B. & Al. 
 
 (t) Hughes V. Morris, 9 Hare, 645 ; per 593 ; see Carter v. Warne, 1 Mo. & Mai. 
 
 cur. 2 De G., M. & G. 349. 479 ; 4 C. & P. 191 ; Lawi-ence v. Knowles, 
 
 [u] Be "Ward's Legacy, 26 Bear. 207; 7 Sec. 381 ; Cartwright v. Glover, 2 Giff. 
 
CH. i. § V.J SALES BY ASSIGNEES IN BANKRUPTCY, 95 
 
 have not entered into possession, but merely put up the property 
 to sale by auction, without stating to whom it belonged, or on 
 whose behalf it was sold, and no person bid at the sale, that 
 will not be an acceptance ; but where upon a sale the assignees 
 received a deposit, but the purchaser refused to complete his 
 purchase, the court, in the absence of evidence why * they 
 did not enforce the contract of sale, held that the contract of 
 sale fixed them with possession. (j?) 
 
 24. If the assignees do accept the property, the bankrupt is 
 relieved from the rent and covenants, and if the assignees decline 
 the same, the bankrupt is not to be liable in case he deliver up 
 the lease to the lessor within fourteen days, and the lessor is 
 enabled in a summary way to compel the assignees to make 
 their election either to accept the same or deliver up the lease 
 and possession of the estate,(«) I must refer the reader to the 
 statute itself for the particulars of this enactment. The later 
 act,(a) without repealing the former act, provides^ that in every 
 case of a lease, or an agreement for a lease, the assignees may 
 elect to take the same and the benefit thereof, and to keep pos- 
 session of the premises up to some quarter or half-yearly day on 
 which rent is made payable by the same lease or agreement, 
 such day not being more than six months from the adjudica- 
 tion of bankruptcy, and upon such day to decline such lease or 
 agreement for a lease.(a) This is not a convenient form of leg- 
 islation. 
 
 25. If a bankrupt's estate be sold, and the purchaser pay a 
 deposit, and then the adjudication be superseded, the court will 
 upon petition order the deposit to be returned, without driving 
 the purchaser to file a bill.(6) 
 
 26. The biddings for an estate sold under a fiat in bankruptcy 
 (now an adjudication), have been opened in analogy to the rule 
 upon sales by courts of equity.(c) This is much to be lamented. 
 
 620 ; Mackley v. Pattenden, 30 L. J. N. S. (a) 24 & 25 Vict. c. 134, s. 131 ■; see s. 
 
 Q. B. 225; 24 & 25 Vict.' c. 134, s.'131. 150. 
 
 (y) Hastings v. Wilson, Holt Ca. 290; (b) Ex parte Fector,Buck, 428. 
 
 Cartwright v. Glover, s. 2, Giif. 620. (c) Ex parte Hutchinson, 2 Mon. & Ay. 
 
 (z) 12 & 13 Vict. c. 106, s. 145, which 727 ; Ex parte Partington, 1 Bal. & Beav. 
 
 was not repealed by 24 & 25 Vict. c. 134 ; 209 ; Ex parte Lee, 12 Jur. 995; 1 De G. 
 
 see Sched. G. Ex parte Poraeroy, 1 Eo. B. C. 628, decided upon particular cir- 
 
 57; Ex parte Wix.on, 1 Ho. 445. cumstances ; [2 Dan. Ch. Pr. {4th Am. 
 
 [65] 
 
96 
 
 SALES BY MORTGAGEES, ETC., UNDER POWERS. [CH. I. § V. 
 
 Lord Manners refused to open such a sale unless there was fraud 
 or mismanagenient.(e?) 
 
 27. A power in a mortgage deed to the mortgagee to sell is in 
 the nature of a trust, but it may be exercised without the con- 
 currence of the mortgagor,(e) and I need hardly say that it is 
 not open to any objection on the ground of a perpetuity ;(/)(!) 
 but the mortgagee, like every other trustee, is bound to use all 
 the means in his power to get the fairest and best price for the 
 property, and he ought not to sell on a day when there is little 
 probability of a sufficient attendance.(g-) The power will of 
 course pass to an assignee of the mortgage, although to secure 
 a Icrss sum, and the mortgagor covenant to *pay it unless a con- 
 trary intention appear.(A) And where the power in a mortgage 
 in fee was to the mortgagee, his heirs, executors, administrators 
 or assigns, the personal representative of an assignee of the 
 
 ed.) 1285, et seg. notes. The former 
 practice of opening biddings on an offer 
 of a, larger price, has, been discontinued in 
 England. 30 & 31 Vict. c. 48, § 7 ; post 
 eh. 3, § 2.] 
 
 (d) In re Martin & Orrasby, 2 Mol. 
 446. 
 
 (e) Post, ch. 11 ; Jenkins v. Jones, 2 
 Giff. 108, supra, pi. 20. [See Montague v. 
 Dawes, 12 Allen, 400; Hubbard v. Jarrell, 
 23 Md. 66.] 
 
 (/) Gilbertson v. Kichards, 5 H. & N. 
 459. 
 
 ig) Orme v. "Wright, 3 Jur. 19. [See 
 Hubbard v. Jarrell, 23 Md. 66.] And 
 although the power of sale authorizes 
 the mortgagee or his assignee to become 
 the purchaser at the sale, yet if he at- 
 tempts to do so he will be held to the 
 strictest good faith and the utmost dili- 
 gence, in the execution of the power, for 
 the protection of the rights of the mort- 
 gagor ; and if he fails in either, the mort- 
 gagor may redeem the land notwithstand- 
 ing the sale. Montague v. Dawes, 14 
 Allen, 369. Wells J. in this case said: 
 
 " Here the notice proved ineffectual to 
 attract purchasers, as might reasonably 
 have been anticipated, from the meagre 
 information it contained, its irresponsible 
 character, and the place of sale' selected, 
 remote from the premises to be sold. 
 With such notice, and under such circum- 
 stances, a mortgagee who is authorized to 
 sell only at auction, finding himself to be 
 the only bidder at the sale, cannot in good 
 faith proceed with the sale and purchase 
 the property for himself at his own price, 
 and insist upon such a purchase as pre- 
 cluding the mortgagor from all right to 
 redeem the property." See Lewin Trusts 
 (5th Eng. ed.), 322; 4 Kent (Uth ed.), 
 ] 90. But in the absence of any stipula- 
 tion to the contrary, the giving of the no- 
 tices, the entry upon the land, and the 
 conduct of the auction, are all matters in 
 which the mortgagee may properly em- 
 ploy another to act under his or her direc- 
 tion ; and the authority of such agent 
 need not be under seal or in writing. 
 Cranston v. Crane, 97 Mass. 459.] 
 (A) Young V. Roberts, 15 Beav. 558. 
 
 (1) In Bell V. Carter, 17 Beav. II, a trust for sale to secure a debt was held to be ; 
 mere mortgage. Consider it. 
 
 [66] 
 
CH. I. § v.] SALES BY MOETGAGEES, ETC., UNDEK POWERS. 97 
 
 mortgage, who had obtained a conveyance of the fee to a trus- 
 tee for him, was held entitled to exercise the power.(i) 
 
 28. The mortgagor himself cannot purchase under the power 
 so as to relieve himself from subsequent charges made by him 
 before the purchase, (/c) and perhaps the rule would be the same 
 if even the estate were sold to a stranger, and subsequently pur- 
 chased from him by the mortgagor. If such a thing should 
 occur as a power for the mortgagor to sell, yet it is apprehended 
 that he could not sell to himself, although it has been held that 
 a mortgagor under a power of leasing, until the mortgagee has 
 taken some step to enforce his security, may grant a lease to a 
 trustee for himself. (/) 
 
 29. A sale by a mortgagee under a power, even with stringent 
 conditions, will not be stopped on light grounds.(m) A mort- 
 gagee, with a power to sell, subject to such special or other "con- 
 ditions of sale as he thought proper, sold by auction, subject to 
 a condition, that in case any objection or requisition should be 
 made in respect of the title or otherwise, which the vendor 
 should be unwilling or unable to remove, he should be at liberty 
 to rescind the sale on returning the deposit without interest or 
 costs, notwithstanding any steps taken by him in the mean time 
 to clear up the objections or comply with any such requisition. 
 
 (i) Saloway v. Strawbridge, 1 K. & J. (/) Beran v. Habgpod, 1 J. & H. 222 ; 
 
 371; 7 De G., M. & G. 594 ; Ashton u. jm., and consider tlje case. 
 Wood, 3 Sm. & Gif. 436. [See Varnum v. (m) Kershaw v. Kalow, 1 Jur. N. S. 
 
 Meserve, 8 Allen, 158. So where there is 974. [See Jenkins v. Jones, 6 Jur. N. S. 
 
 a mortgage to two persons, with a power 391 . While acting bona fide he can only 
 
 of sale to " them, their heirs and assigns," be stopped by tender of principal, interest, 
 
 and one dies, the survivor may sell. Hind and costs. Paynter «. Carew, 18 Jur. 41. 
 
 ■ V. Poole, 1 K. & J. 383 ; Lewin Trusts So long as anytjiing remains due upon 
 
 (5th Eng. ed.^, 431. If the mortgagee is the mortgage the mortgagee may pursue 
 
 a married woman, and the power of sale all his remedies concurrently. Lockhart 
 
 authorizes her to make all necessary con- v. Hardy, 9 Beav. 354 ; Cockell v. Bacon, 
 
 veyances for vesting the premises in the 16 Beav. 158. An entry for foreclosure 
 
 purchaser, in fee simple absolute, it may of a mortgage which contains a power of 
 
 be executed by her sole deed, reciting the sale, and a taking of rents and profits 
 
 power, and signed and sealed with her which are insufficient to discharge the 
 
 own name and seal, without her husband's mortgage debt, will not prevent the mort- 
 
 assent. Cranston v. Crane, 97 Mass. gagee from subsequently making a valid 
 
 459.] sale of the mortgaged premises under the 
 
 (k) Otter V. Ld. Vaux, 2 K. & J. 650; power of sale.' Montague v. Dawes, 12 
 
 6 De G., M. & G. 638. , Allen, 397.] 
 
 VOL. 1. 7 
 
98 SALES "BY MORTGAGEES, ETC., UNDER POWERS. [CH. I. § V. 
 
 And it was held to be a reasonable condition, and the purchaser 
 who objected to it was held to his purchase and compelled to 
 pay the costs.(w) 
 
 30. A mortgagee with a general power of sale may accept a 
 fair offer by private contract without first advertising the estate, 
 and he is not bound to wait upon speculation for a better bid- 
 ding or to put up the estate by auction, and although of course 
 the purchaser is bound to see that the sale is authorized by the 
 power, he is not bound to inquire what steps have been ante- 
 cedently taken for the purpose of prompting the sale.(o) 
 
 31. In Davey v. Durrant it seems to have been considered that 
 under such a power of sale, a part of the purchase money may 
 be left on mortgage, but this point did not arise, as the mortgage 
 was a distinct transaction, and the mortgagee who sold sub- 
 mitted to be charged with the whole of the purchase money, 
 and that, one of the lords justices considered, was the proper 
 course. (jo) 
 
 *32. A mortgagee under a power of sale cannot, of course, 
 by a pretended sale acquire the property as his own. Relief 
 from such a sale would be afforded at considerable distance of 
 time.(/?^) 
 
 33. Where such a power is given, with a view also of provid- 
 ing for the payment of prior incumbrancers who are not parties 
 to the deed, and the first trust is for payment of the expenses of 
 sale, such expenses cannot be retained as against the prior in- 
 cumbrancers, unless they have bound themselves to carry out the 
 trusts. (5) 
 
 (n) Falkner v. Eq. Eev. Soc'y, 4 Drew, sufficient compliance with the law. Hub- 
 
 352. [A mortgagee selling under a power bard v. Jarrell, 23 Md. 66.] 
 
 of sale, and retaining the surplus purchase (p) Davey v. Durrant, 1 De G. & J. 
 
 money unproductive, in consequence only 535; 26 L. J. N. S. 830. [See Bailey v. 
 
 of disputes between subsequent incum- -ffitna Ins. Co. 10 Allen, 286; Hubbard w. 
 
 brancers, is not chargeable with interest on Jarrell, 23 Md. 66.] 
 
 such surplus. Mathison u. Clark, 4 W. Qji) Robertson u.Norris, 1 Giff. 421,428; 
 
 E. 30.] [affirmed on appeal, 4 Jur. N. S. 155, 
 
 (0) Davey v. Durrant, 1 De G. & J. where redemption was decreed though fif- 
 
 535 ; 26 L. J. N. S. 830. [Where it ap-_ teen years had elapsed. See Dobson v. 
 
 peared that the bond required of mort- Eacey, 4 Selden, 216; Mapps v. Sharpe, 
 
 gagces before a sale was filed on the day 32 111. 13 ; Montague v. Dawes, 14 Allen, 
 
 of sale, the presumption will be that it 369 ; ante, 65, n. {g).'] 
 
 was filed before the sale ; this would be a (q) Crosse v. Gen. Kev. Society, 2 Eq. 
 
 R. 579. See and consider it. 
 
 [67] 
 
CH. I. § v.] SALES BY MOETGAGEES, ETC., UNDER POWERS. 99 
 
 34. Trustees, or a body acting under delegation with a simple 
 power to mortgage, cannot give to a mortgagee a power to 
 sell.(j-) But the court, in making an order for securing by mort- 
 gage, a sura on an infant's estate, will add a direction to insert 
 a power of sale if the mortgagee should require it.(s) And a 
 power to raise money by sale or mortgage, or by both or either of 
 those ways, authorizes a mortgage with a power of sale.(i) 
 
 35. Where an estate subject to two mortgages was assigned 
 to the second mortgagee upon trust to sell and pay off the first 
 mortgage, and then the second mortgage, it was, under the cir- 
 cumstances, held that a sale might be made of the equity of re- 
 demption subject to the first mortgage. (m) A second mortgagee 
 may purchase of the first mortgagee having a power of sale.(a;) 
 
 36. A mortgagee selling under a power, can only charge the 
 ordinary expenses allowed to a trustee, although he is an auc- 
 tioneer and acts as such on the sale, or the sale is made by the 
 firm of which he is a member. (^) 
 
 37. If the mortgagee is bound to give notice of the intended 
 sale to the mortgagor,(2/^) his heirs, or assigns, notice to the 
 guardian of an infant heir is sufficient.(2:) A provisional demise 
 to a trustee for the purpose of granting leases, and the appoint- 
 ment of him as trustee in case of default in payment of interest, 
 will not afiect the power of sale in the mortgage deed, and the 
 trustee of the term is bound to join in the conveyance to the pur- 
 chaser.(a) 
 
 38. If a purchaser is aware that notice has not been given, he 
 cannot protect himself by a clause that he need not inquire, 
 and that the receipt of the mortgagee should be a discharge.(6) 
 But in Ford v. Heely,(c) the proviso for redemption was upon 
 
 (r) Clarke v. Panopticon, 4 Drew. 26; (z) Tracey v. Lawrence, 18 Jur. 590; 2 
 
 see 24 Beav. 29. Eq. R. 818. [In case the party on whom 
 
 (s) Selby v. Cooling, 23 Beav. 418. notice is to be serred is a lunatic, or totally 
 
 (() Bridges v. Longman, 24 Beav. 27. blind or deaf; see Robertson o. Lockie, 
 
 (u) Manser v. Dix, 3 Jur. N. S. 252. 15 Sim. 285 ; Mellersh v. Keen, 27 Beav. 
 
 {x) Parkinson ^. Jlaijbury, 1 Drew. & 236.] 
 Sm. 143. lilH^,ifd^iO.M^/y.Jlf^t (a) King v. Heenan, 3 De G., M. & G. 
 
 (y) Mathison v. Clarke, 3 Drew. 3 ; [3 890 ; see Cruse v. Nowell, 2 Jur. N. S. 
 
 Eq. R. 127 ; Kirkman v. Booth, 11 Beav. 539. 
 
 273.] (J) Parkinson v. Hanbury, 1 Drew. & 
 
 (,!/!) [See Montague v. Dawes, 12 Allen, Sm. 143. 
 
 400.] (c) 3 Jur. N. S. 1116. 
 
100 SALES BY MORTGAGEES, ETC., UNDER POWERS. [CH. I. § V. 
 
 payment of principal and interest on the 11th November, with 
 a power of sale- after default * in payment and three months' 
 notice, but a purchaser was not to be affected by express notice 
 that no such default had been made or notice given. In Sep- 
 tember the mortgagor agreed to join in a sale, and waived 
 notice, but he had previously executed a transfer to trustees 
 for his creditors, which rendered this agreement null. The 
 mortgagee on the 19th November, contracted to sell. This, 
 on the face of the contract, showed that default could only 
 have been made in payment for a week, and the consent of the 
 mortgagor [qu. trustees for creditors] could not be obtained. It 
 was held that the mortgagee himself could- make a good title, 
 yet he was clearly liable to the creditors for selling contrary to 
 his power: the contract itself showed that the proper notice 
 could not have been given, yet equity at his suit enforced the 
 contract. 
 
 39. Where a tender was made before a sale under the power, 
 of the principal and interest, and the estate was ample to secure 
 the costs, which had not been ascertained, the purchaser at auc- 
 tion who had notice of the tender, was held to be still subject to 
 rederaption.(c^) The power contained a direction that a pur- 
 chaser should not be bound to inquire, but as the purchaser had 
 notice, it was held that he was equally bound with the mort- 
 gagee, the sellev.(£^) , 
 
 40. Where the sale is in bankruptcy, and the mortgagee has 
 liberty to bid, he cannot have the conduct of the sale.(e) If the 
 mortgagee sell improperly and receive a deposit, and the contract 
 go off, the deposit may be a lien on his own interest.(/) 
 
 (c') [But' a valid title will pass by a sale from him -without notice. Montague v. 
 
 made by an assignee of the mortgage to a Dawes, 12 Allen, 397. See Cranston v. 
 
 bona fide purchaser without notice, under Crane, 97 Mass. 459.] 
 
 and in pursuance of the provisions of a (d) Jenkins v. Jones, 2 Giff.-99; [6 Jur. 
 
 power of sale contained in the mortgage, N. S. 391.] 
 
 although payment of the mortgaged debt (e) Ex parte M'Gregor, 4 De G. & Sm. 
 
 has been tendered to such assignee, if such 603, inf. [See Montague v. Dawes, 14 
 
 tender has not been immediately followed Allen, 369.] 
 
 by a suit to redeem, founded thereon ; or (/) Wythes v. Lee, 3 Drew. 336; 2 Jur. 
 
 if, in pursuance of the provisions of the N. S. 130. [And so also of the costs of suit, 
 
 power of sale, the assignee is himself the Middleton v. Magnay, 2 H. & M. 233 ; 
 
 purchaser, and the title is made to him ac- Hindley v. Emery, 11 Jur. N. S. 874 ; Tur- 
 
 cordingly, he by his deed may thereafter ner v. Marriott, L. E. 3 Eq. 744.] 
 convey a good title to a bona fide purchaser 
 
 [68] 
 
CH. I. § V.J SALES UNDER POWERS IN SETTLEMENTS. , 101 
 
 41. Where, as is usual, the power is to sell in the event of de- 
 fault being made in payment of the instalments, the declaration 
 of the mortgagee, an interested party, is not, as against a pur- 
 chaser, sufficient evidence that the event has happened on which 
 the right of exercising the power of sale was to arise.(g-) 
 
 42. And where there was an equitable mortgage, with a po-wer 
 of sale, although the mortgagee was precluded from selling the 
 estate for a stipulated period, yet the mortgagor having become 
 bankrupt within that period, the court of review made an order 
 for an immediate sale, upon the petition of the mortgagee 
 against the wish of the assignees.(A) 
 
 43. A mortgagee filing a bill after the death of the mortgagor 
 for payment of his debt, and the administration of the assets, 
 should take care to have the purchase money paid to him, as it 
 comes in, or carried to his separate account, for otherwise he 
 would not be entitled to any accumulations pending the suit.(i) 
 And where he concurs in a sale * under a creditor's suit, he will 
 be entitled, out of the proceeds, beyond his mortgage money 
 and interest, to the actual expenses of the sale only, and all other 
 costs and expenses connected with the sale will fall upon the 
 general assets of the mortgagor. (A) 
 
 44. The 23 & 24 Vict. c. 145, has provided powers to sell and 
 to insure the property and to appoint a receiver,- with very spe- 
 cial directions for a mortgagee of hereditaments of any tenure, 
 at any time after one year from the time when such principal 
 money shall have become payable, or after any interest shall 
 have been in arrear for six months, or after any omission to pay 
 any premium on any insurance which by the deed ought to be 
 paid by the mortgagor.(/) But the parties may by express decla- 
 ration prevent these powers from being exercised, and the act 
 does not operate retrospectively. (m) 
 
 45. Trustees, assignees of bankrupts,(») and mortgagees with 
 a power of sale, are of course liable to make a good title, just as 
 a seller who is sui juris, although they are not bound to enter 
 
 (g) Hobson v. Bell, 2 Beav. 17. {h) Berry v. Hebblethwaite, 4 K. & J. 
 
 (h) Ex parte Bignold, 3 Mon. & Ay. 80. 
 477 ; sed qu. (I) Part III. and s. .33. 
 
 (i) Irby v. Irby, 22 Beav. 217. (m) Sect. 32, 34. 
 
 (n)Pos«, ch. 11. ' 
 
 [69] 
 
102 • SALES UNDER POWERS IN SETTLEMENTS. [CH. I. § V. 
 
 into covenants for the title ; (o) and if they do not deliver the 
 deeds to the purchaser, they are liable in the same way to furnish 
 attested copies of the deeds, and a covenant to produce the 
 deeds, (p) 
 
 46. And a purchaser from trustees is entitled to a compensa- 
 tion- for a misdescription of the quantity, &cc., although made 
 without fraud, as in the case of a sale by an owner. (5') If a 
 mortgagee with a power of sale, sell, and upon filing a bill 
 against the purchaser his bill is dismissed with costs, on account 
 of a misdescription, he cannot upon redemption claim those 
 costs against the mortgagor.(r) A first mortgagee, with a power 
 of sale, entering into a parol contract not binding to sell a por- 
 tion of the property, may purchase the interest of a second 
 mortgagee without communicating to him the imperfect con- 
 tract.(s) 
 
 47. Trustees, assignees, mortgagees with powers of sale, can- 
 not sell to themselves : (t) they may of course vest the estate by 
 conveyance in themselves as purchasers ; even executors, having 
 a power of sale, may sell and appoint the estate to themselves, or 
 any of them, or appoint it to a nominal parchaser, as a trustee 
 for them ; (u) but equity would not allow such a purchase to 
 stand, unless it should prove beneficial to the cestuis que trust.{x) 
 
 48. Where an equitable owner has conveyed the estate to 
 trustees to sell, the person in whom the legal estate is outstand- 
 ing is bound *to convey it to the trustees for sale, and is not 
 entitled to require the concurrence of the cestuis que trust of the 
 money to be produced by the sale. -But if, in parting with the 
 legal estate, he goes beyond the mere purpose of conveying it to 
 the equitable trustees, and so deals with it as to facilitate a 
 breach of trust by the trustees, and a breach of trust be in conse- 
 
 (0) Post, ch. 14 ; [Lewin Trusts (5th liability of assignees or heir at law, see 
 
 Eng. ed.), 320, 324; White v. Foljambe, Page v. Broom, 3 Beav. 36. 
 11 Ves. 343; M'Donald v. Hanson, 12 (?) Hfll w. Buckley, 17 Ves. 394; White 
 
 Ves. 277 ; Onslow v. Lord Londesborough, v. Cuddon, 8 CI. & Pin. 766 ; Sugd. H. 
 
 10 Hare, 74 ; Stephens v. Hotham, 1 K. of L. 590. 
 
 & J. 571 ; Ennis v. Leach, 1 Ired. Eq. 416 ; (r) Peers v. Ceeley, 15 Beay. 209. 
 see Sumner v. William's, 8 Mass. 162.J (s) Dolman v. Nokes, 22 Beav. 402. 
 
 (p) Inf. ch. 11 ; and as to the special (t) Ch. 20, post. 
 covenants to be contained in a lease for the (u) Mackintosh v. Barber, 1 Bing. 50. 
 
 [70] 
 
 {x) Sugd. Pow. (8th ed.) 125. 
 
CH. I. § v.] POWEES OF TRUSTEES : WHERE UNCONTROLLABLE. 103 
 
 quence committed, he is deemed a party to such breach of trust, 
 and is responsible for it.(y) 
 
 49. Although a tenant for life of money to be produeed by the 
 sale of an estate may not, by the expressions of a will, be en- 
 titled to any interest until a sale and investment of the produce, 
 yet where the sale is directed to be made with all convenient 
 speed, twelve months are considered as the time within which 
 the sale might reasonably have been made, and from that time 
 the tenant for life is entitled to the rents of the estate remaining 
 unsold, (z) 
 
 50. In regard to trustees having the usual power of sale and 
 exchange under a settlement, they must act in the execution of 
 the power, when ' they determine to exercise it, as if it were a 
 trust. They should ascertain before they proceed to a sale, that 
 their power is not a conditional one ; (a) and they should not sell 
 under a power to make partition, or to exchange, although this 
 may be accomplished indirectly.(6) Of course, although author- 
 ized to lend the money arising by sale to the husband, they can- 
 not make a pretended sale with a view to raise money and lend 
 it to him.(c) 
 
 51. Trustees of such a power, acting bond fide, cannot be con- 
 trolled by equity in the exercise of their discretion, and a proper 
 contract for sale by them will be enforced in equity ; [d) neither 
 can they be compelled to adopt a contract for sale by the tenant 
 for life.(e) They should not, under the usual power, which pro- 
 
 (y) Angier v. Stannard, 3 My. & Ke. (d) Sugd. Pow. 863 ; [Kekewicli v. 
 
 566. Marker, 3 Mac. & G. 311 (Am. ed.), note 
 
 (z) Tickers v. Scott, 3 My. & Ke. 500; (1) ; Lewin Trusts (.5th Eng. ed.), 439 ; 
 
 Sitwell V. Bernard, 6 Ves. 520, and many Re Eddowes, 1 Drew. & S 395 ; Re Coe's 
 
 later cases ; [Parry v. Warrington, 6 Mad. Trust, 4 K. & J. 199 ; Pulpress v. African 
 
 155; Greisley v. Lord Chesterfield, 13 Church, 48 Penn. St. 204 ; Gochenauer «. 
 
 Beav. 288. Twelve months wiU be deemed Froelich, 8 Watts, 19 ; Littlefield w. Cole, 
 
 a reasonable period, although the property 32 Maine, 552 ; Morton v. Southgate, 28 
 
 be a reversion. Wilkinson ./. Duncan, 23 Maine, 41; Cochran v. Paris, 11 Gratt. 
 
 Beav. 471.] 356; Hawes Place Cong. So. u. Trustees 
 
 (a) Sugd. Pow. 269, 862. The succes- of Hawes Eund, 5 Cush. 454 ; Cowles v. 
 sion duty act does not affect the exercise Brown, 4 Call, 477 ; Arnold v. Gilbert, 3 
 of these powers, 16 & 17 Vict. t. 51, s. 42 ; Sandf. Ch. 556 ; Mason v. Mason, 4 Sandf. 
 see 19 & 20 Vict. c. 120 ; ch. 12, s. i.post. Ch. 623 ; Leavitt v. Beirne, 21 Conn. 1 ; 
 
 (b) Sugd. Pow. 856. Chew v. Chew, 28 Penn. St. 17.] 
 
 (c) Eobinson u. Briggs, 1 Sm. & Gif. (e) Thomas v. Dering, 1 Ke. 729. 
 188. 
 
104 POWERS OF TRUSTEES : WHERE UNCONTROLLABLE. [CH. I. § V. 
 
 vides for a reinvestment, sell the estate for the mere purpose of 
 converting it into money ; (/) and if they sell the estate, they 
 must sell the standing timber with it, although the tenant for life 
 is unimpeachable of waste; for a sale by the trustees of the 
 estate only, and a sale by the tenant for life of the timber for 
 his own benefit is invalid, although he is unimpeachable of 
 waste ; (g) but now courts of equity have power to give validity 
 to such sales made by mistake, upon payment by the purchaser 
 of the value of the timber and interest for the benefit of the set- 
 tlement. And this extends to a case where a* tenant for life 
 has by mistake been allowed to receive out of the purchase 
 money the value of any other articles attached to the estate. (A) 
 They may sell the estate to the tenant for life himself, even 
 where his consent is required to the sale.(f) Under the common 
 power of sale with the consent of the tenant for life, although 
 he be unimpeachable of waste, the surface cannot be sold reserv- 
 ing the minerals ; but land and the minerals under it must be 
 sold together; (k) yet under the leases and sales of settled 
 estates act the courts of equity may authorize the sale and 
 conveyance of minerals under a settled estate apart from the 
 surface. (?) 
 
 52. If the tenant for life sell with the approbation of the trus- 
 tees, and invest the money in the purchase of another estate in 
 his own name, they will have a lien on the new estate for the 
 amount of the purchase money of the old one.(m) 
 
 53. The contract of the trustees to sell under a power of sale 
 binds the estate ;' and though by the deaths of parties the power 
 should be extinguished, yet the contract must be executed by 
 those who have got an interest by the extinguishment of the 
 power, (w) 
 
 54. The statute, 23 & 24 Vict. c. 145, before referred to, gives 
 
 (/) Sug4. Pow. 863 ; MarshaU v. Slad- {i) Sugd. Pow. 867. 
 den, 4 De G. & Sm. 468. {k) Buckley v. Howell, 7 Jur. N. S. 536 ; 
 
 ig] Cockerell v. Cholmely, 1 CI. & Pin. [Lewin Trusts (.5tli Eng. ed.), 320.] 
 60 ; [10 E. & C. 564 ; 3 Euss. 565 ;] Sugd. (/) 19 & 20 Vict. s. 120, 21 & 22 Vict. s. 
 
 Pow. 561 ; [Cholmeley u.Paxton, 3 Bing. 77 ; In re Law, 7 Jur. N. S. 511 ; Sugd. 
 
 207 ; 5 Bing. 48 ; Davies v. Wescomb, 2 Pow. 873. 
 
 Sim. 425; Kekewich v. Marker, 3 Mao. & (m) Price v. Blakeiuore, 6 Beav. 507. 
 G-311; Perry Trusts, § 776.] (n) Mortlock w. BuUer, 10 Ves. 292; 
 
 (A) 22 & 23 Vict. c. 35, s. 13. Shannon v. Bradstreet, 1 Sch. & Lef. 52. 
 
CH. I. § v.] POWERS OP TRUSTEES. COSTS. 105 
 
 to trustees having a simple power to sell very special powers 
 to enable them to execute their trust, which also extend to an 
 exchange where the power of sale authorizes it, and contains a 
 provision in regard to renewable leaseholds.(o) But as in the 
 case of mortgages the parties may by express declarations pre- 
 vent the powers of the act from being exercised, and the act is 
 prospective on\y.{p) 
 
 55. If trustees execute a conveyance, and sign the receipt, and 
 leave the deed with their attorney, who, obtains the purchase 
 mbpey, they will be responsible for any misapplication by him.{q) 
 Trustees will be answerable for costs in a suit if the decision be 
 against them, just as if they were selling their own property, as 
 between them and the vendor ; (r) although, if they have acted 
 properly, they may be able to charge those costs against the trust 
 property. But although often asked, the court seldom, in a suit 
 between the trustees and a purchaser, directs them to have their 
 costs over out of the trust estate, but leaves them to settle that 
 question with their cestuis que trust. 
 
 56. The court has authorized trustees for sale with a direction 
 not to postpone the sale beyond a period limited, to enlarge the 
 time for the benefit of all partles.(5) 
 
 *57. Where there was a power of sale with the consent of 
 the tenants for life (husband and wife), and the receipt of the 
 trustee was to be a sufficient discharge, a contract of sale by 
 the husband upon very unusual terms, followed by a convey- 
 ance by the trustee with a receipt for the purchase money, 
 although she received no part of it, but had a bond of indemnity 
 from the husband tenant for life, who received it at various times 
 
 (o) Part 1. and see s. 31, 33. both parties on a sale or purchase. Ed- 
 
 (p) Sect. 32, 34. monds v. Peake, 7 Beav. 239.] 
 
 (q) Ghost V. Waller, 9 Beav. 497. [See (r) Edwards v. Harvey, Coop. 40 ; post. 
 
 Chambers v. Minchiu, 7 Ves. 196; Grif- ch. 17, s. 2. 
 
 fiths V. Porter, 25 .Beav. 236 ; Ingle v. (s) Cuff v. Hall, 1 Jur. N. S. 972. [If 
 Partridge, 32 Beav. 661 ; 34 Beav. 411 ; the trust be, " with all convenient speed 
 Bostock V. Ployer, L. K. 1 Ch. Ap. 26 ; and within five years," to sell the estate 
 Sinclair v. Jackson, 8 Cowen, 582 ; Row- and apply the funds in payment of debts, 
 land V. Witherden, 3 Mac. & G. 568. But &c., the proviso as to the five years is con- 
 trustees may leave money in the custody sidered directory only, and the trustees can 
 of third persons when it is necessary in the sell and make a good title after the lapse 
 course of business, as where money is left of that period. Pearce «. Gardner, 10 
 in the hands of an auctioneer as agent of Hare, 287 ; 1 Dart V. & P. (4th Eng. ed.) 
 
 50, 51.] 
 
 [72] 
 
106 POWERS OF TRUSTEES. RECEIPT FOR PAYMENT. [CH. I. § V. 
 
 and misapplied it, was held to^be a valid payment of the money, 
 for the purchaser had obeyed the direction of the trustee to pay 
 it to another person, and thereby made a payment of it to the 
 trustee himself, and was exonerated from the misapplication of 
 it, as the purchaser had not notice that the person to whom he 
 was directed to pay it was about to commit a breach of trust in 
 such a way as to make her a party to the wrongful act.(^). 
 
 (<) Hope V. Liddell, 21 Beav. 183; con- nation. The remedy of the parties ag- 
 
 sider the case. [The land is discharged so grieved is against the trustees personally, 
 
 soon as the fund has been actually raised, without any lien upon the estate. Lewiu 
 
 even though the proceeds may be misap- Trusts (5th Eng. ed.), 329, and cases in 
 
 plied, and do not reach their proper desti- note (j).] 
 
CHAPTER II. 
 
 OP SALES TO RAILWAY COMPANIES. 
 
 9. 
 11. 
 10. 
 19. 
 12. 
 
 13. 
 14. 
 15. 
 16. 
 
 Eailway Clauses Consolidation Act ; 
 
 Lands Clauses Consolidation Act. 
 Powers to purchase. 
 Purchases by private contract. 
 Price for land or for not opposing. 
 Where company bound by contract of 
 
 promoters ; ultra vires doctrine. 
 Purchase of additional land by private 
 
 contract. 
 Sales by compulsion ; price ; mines. 
 Notice how far a contract as between 
 
 vendor and purchaser ; second notice ; 
 
 specific performance. 
 
 ( Of specific performance. 
 
 1 Notice by company not a conversion of 
 ) land, previously devised. 
 Hill V, Great Northern Eailway Com- 
 pany. 
 Effect of notice; quantity of land;* price. 
 Company must apply for abstract. 
 How purchase money is to be paid. 
 Conveyance after deposit of price. 
 
 17. Eefusal to accept the money, or to con- 
 
 vey, or want of title, &c. ; application 
 for the money. 
 
 18. Vendor's covenants for title. 
 
 19. Where the sale converts the estate into 
 
 personalty. 
 
 20. Where the company may enter; effect of 
 
 entry; deposit. 
 
 21. Entry before or after the prescribed 
 
 time. 
 
 22. Remedies against company ; mandamus ; 
 
 injunction. 
 
 23. Enactments as to costs. 
 
 24. Decisions thereon. 
 
 25. Costs of conveyance from infant heir or 
 
 devisee. 
 
 26. Right to purchase money. 
 
 27. Entry to make spoil banks, &c. ; com- 
 
 pany compellable to purchase. 
 
 28. Where interest payable by company; 
 
 loss by bankers. 
 
 29. Purchaser from company subject to a 
 
 condition. 
 
 1. We may now take a concise view of the law, so far as 
 it places a company and an owner of land in the relations of 
 vendor and purchaser.(l) * The special rights of every com- 
 pany, of course, depend on their own act of parliament ; but 
 as to railways authorized by acts passed after the 8th May, 
 1845, the provisions of ." The , Railways Clauses Consolidation 
 Act, 1845," form part of their acts, unless otherwise enacted. (a) 
 " The Lands Clauses Consolidation Act, 1845,"(6) applies to 
 
 {a) 8 Vict. c. 20, s. 1-5 ; as to joint- Vict. c. 79, s. 22 ; for Scotland, 8 Vict. c. 
 stock companies, 18 Vict. c. 16. 19. 
 
 (b) 8 Vict. c. 18 (8 May 1845); 15 & 16 
 
 (1) The powers to take land are fully and ably discussed in Hodge's Law of Rail- 
 ways. 
 
 [73] 
 
108 PURCHASE BY PRIVATE CONTRACT. [CH. II. 
 
 every undertaking authorized by any later act for the purchase 
 or taking of lands for such undertaking, except so far as they 
 shall be expressly varied or excepted. 
 
 2. The company may agree with the owners, and with parties 
 empowered to sell, for the purchase of messuages, lands, tene- 
 ments, and hereditaments of any tenure (2) for a money consid- 
 eration ; (c) but no party is compellable to sell a part of any 
 house, building, or manufactory,(c^) if he be able and willing to 
 sell the whole ; (d) and the word " house " receives a liberal inter- 
 pretation, so that it may extend to ground intended as a front 
 garden to the house, which, therefore, the company cannot take 
 without also purchasing the house, although they do not propose 
 to touch the house.(e) Where the company require only the soil 
 for their works they cannot insist upon a conveyance of the fee 
 to them.(/) The contract, where it only requires signature, may 
 
 (c) 8 Vict. c. 18, s. 3, 6. June. Ky. Co. 1 De G. & J. 446 ; King v. 
 (fli) [See Gibson v. Hammersmith & Wyeombe Ey. Co. 28 Beav. 104; as to 
 
 City Ry. Co. 9 Jur. N. S. 221 ; runiiss v. small severed pieces, see Marriage k. East. 
 
 Midland Ry. Co. L. R. 6 Eq. 473.1 C. Ky. Co. 27 L. J. N.' S. 185, Exch.; 
 
 (d) 8 Vict. c. 18, s. 92 ; Reg. ... London [Sparrow v. Oxford, &e. Ry. Co. 2 De G., 
 & Greenwich Ry. Co. 3 Q. B. 166; M. & G. (Am. ed.), 94, and cases in notes ; 
 Walker v. London & Blackwall Ry. Co. Eurniss v. Midland Railway Co. L. R. 
 25. 744; Sparrow u. Oxford, &c. Ry. Co. 6 Eq. 473; Alexander v. Crystal Palace 
 9 Hare, 436 ; 2 De G., M. & G. 94 ; Pinchin Ry. Co. 30 Beav. 556 ; Ferguson v. Lon- 
 V. London & Blackwall Ey. Co. 2 Eq. R. don &>Brighton Ry. Co. 33 Beav. 103; 
 1172; 3 Eq. R. 433; 1 K. & J. 34, 35 ; 11 W. R. 1088; Steele v. Midland Ry. 
 De 6., M. & G. 851 ; Spackman v. Great Co. L. R. 1 Ch. Ap. 275 ; Marson v. Lon- 
 "Western Ry. Co. 1 Jur. N. S. 130; Cole don, Chatham, & Dover Ry. Co. L. R. 6 
 V. West End of London, &c. Ry. Co. 27 Eq. 101.] 
 
 Beav. 242 ; King v. Wycombe Ry. Co. (/ ) Eversfield v. Mid-Sussex Ry. Co; 1 
 
 28 Beav. 104; Giles v. London, Chat. & Giff. 153; Dodd v. Salisbury & Yeo. By. 
 
 Dover Ry. Co. 1 Drew. & S. 407 ; Under- Co. lb. 158; Governors of St. Thomas's 
 
 wood u. Bedford & Camb. Ry. Co. 7 Jur. Hospital v. Char. Cross Ry. Co. 1 J. & 
 
 N. S. 941. H. 400; [27 Bear. 242.] 
 
 (e) Grosvenor, Lord E. v. Hampstead 
 
 (2) The right of entry on lands is regulated by s. 84-91 of 8 Vict. c. 18 ; see 8 
 Vict. c. 20, s. 30-44, et inf.; copyholds, by s. 95-98 of 8 Vict. c. 18; see Ecclesiastical 
 Commissioners u. London & South Western Ry. Co. 10 C. B. 703 ; common lands 
 by s. 99-107 ; mortgages by s. 108-114; see Eankeu o. East & West India Dock Ey. 
 Co. 12 Beav. 298; rentcharges by s. 115-118; leases by s. 119-122; see Reg. v. 
 Manchester, &c. Ry. Co. 4 E. & B. 88, and intersected lands by s. 93 & 94. The 
 right of preemption of superflvions lands is in the seller, s. 129-131, subject to which 
 they may be sdld generally, or within a time limited will revest in the owners, s. 127, 
 128 ; see Astley v. Manch. Ey. Co. 2 De G. & J. 453. In conveyances by the pro- 
 moters, the word "grant" is to operate as limited covenants for title, s. 132. As to a 
 right of way, see Pinchin v. Loud. & Blackwall Ey. Co. 5 De G., M. & G. 851. 
 
CH. II.] COMPANY BOUND BY CONTEAOT, ETC. 109 
 
 be signed by any, two directors: and it may, in like manner, 
 be varied or discharged, (g-) and the promoters may bind * them- 
 selves by the acts of their agents. And general powers are 
 given to parties under disabilities to sell and convey to the 
 company ;(^) but upon a sale by an equitable tenant for life, 
 the concurrence of the trustees of the legal estate was held to 
 be necessary, for the seventh section only enables a tenant for life 
 to bind those in remainder, and not trustees who have the 
 legal estate.(t) Special provision is made as to the mode of 
 ascertaining the amount of the consideration where the sellers 
 are under a disability, in which case the purchase money is 
 to be deposited in the hank.{j) The price is always to be a 
 gross sum, unless the seller is seised in fee, when the land may 
 be sold upon a chief rent.(A;) A tenant for life may, under the 
 act, contract to sell, and may stipulate for 51. per cent, for him- 
 self until the time fixed for payment of the price. (Z) 
 
 3. The act of parliament does not interfere with private con- 
 tracts where the parties are competent to contract. The com- 
 pany having a capacity to purchase, may obtain the land by 
 private contract ; and if they do, the contract may be enforced 
 against them in equity, and the court will secure to the vendor 
 any easements he contracted for.('/w) Upon a purchase by pri- 
 vate contract, t^e company will be entitled to a sixty years' title, 
 and, although in possession, will not be held to have waived 
 their right by a short delay j but if they refuse to accept such 
 title as the seller can make, he can call upon them to complete 
 or abandon the contract.(w) But if the agreement be waived 
 by mutual consent, and the company resort to the powers of the 
 act, the owmer may be leftto his legal remedies under the act.(o) 
 
 (g) 8 Vict. c. 16, o. 97; Leominster (m) Sanderson u. Cockermouth, &c. Ey. 
 
 Canal Co. ». Shrewsbury, &c. Ry. Co. 3 Co. 11 Beav. 497; 2 H. & T. 327; see 
 
 Jur. N. S. 930. Morgan v. Milman, 10 Hare, 279 ; 3 De G., 
 
 (h) S. 7, 8. Inalienable estates tail are M. & G. 24 ; [Lytton v. Great Northern 
 
 within the seventh section ; but the act does Ey. Co. 2 K. & J. 394.] 
 
 not bind the crown. In re Cuckfield Bur- {n) Douglas v. N. W. Ry. Co. 3 K. & 
 
 ,ial Board, 19 Bear. 153. J. 173. 
 
 (i) Lippincott v. Smyth, 29 L. J. 520. (o) Adams v. London & Blackwall Ry. 
 
 0') S. 9. Co. 6 Railway Cas. 271 ; 2 Mac. & G. 118 
 
 (k) S. 10, 11. [(Am. ed.), 131, note (1), and cases cited] ; 
 
 (/) In re Hungerford, 1 Jur. N. S. 845 ; s. 85 & 86 of 8 Vict. c. 18. 
 1 K. & J. 413. 
 
 [74] 
 
110 COMPANY BOUND BY CONTRACT, ETC. [CH. II. 
 
 Where after an entry by a railway company, and a subsequent 
 sale to them by private contract, and payment into court of the 
 purchase money, under the sixty-ninth section of the lands clauses 
 act, it appeared that there was a want of title to a material part 
 of the estate, the court, in the absence of the claimant of the 
 defective portion, apportioned the consideration, so as to give to 
 the sellers the benefit of the purchase money representing the 
 part to which a title could be inade.{p) In a case where, after 
 a notice to take the land by an incorporated company, the price 
 by consent was fixed by arbitration, and the landowner being 
 guilty of delay, the company gave him notice J;h at the purchase 
 money was appropriated, and lying idle, it was held that interest 
 on the purchase money stopped. (5) 
 
 *4. The price agreed to be paid by promoters to a land- 
 owner for his land, or as a compensation in consideration of 
 his withdrawing his opposition to their bUl, cannot, after the 
 act has passed, be objected to by the company as exorbitant 
 or illegal on that account; for each landowner may lawfully 
 make the best agreement he can for himself with any com- 
 pany of proprietors, just in the same manner as if a private 
 individual for any purpose of his own were negotiating to pur- 
 chase the land of the same persons.(r) It is not illegal for a peer 
 to agree to withdraw his opposition to a bill in consideration of 
 a sum to be paid to him as compensation for damage to his 
 estate in case the bill should pass.(s) (1) 
 
 (p) In re Perk's Estate, 1 Sm. & Gif. 807 ; 9 CI. & Kn. 61 ; see Vauxhall 
 
 545 ; consider the case. Bridge Co. v. Earl Spencer, 2 Mad. 356, 
 
 (q) Regent's Canal Co. v. "Ware, 23 Jac. 64 ; Edwards v. Grand Junction Ry. 
 
 Bear. 575. Co. I Sim. 337, 1 My. & Cra. 650 ; Doo 
 
 (r) Lord Petre v. Eastern Counties Ry. v. London & Croydon Ry. Co. 1 Railw. 
 
 Co. 1 Ry. Cas. 462 ; Stanley v. Chester Cas. 257 ; Lindsey v. Great Northern Ry. 
 
 & Birkenhead Ry. Co. 3 My. & Cra. 773 ; Co. 10 Hare, 664; Williams v. St. Geor. 
 
 Hawkes v. Eastern Counties Ry. Co. 3 Harbor Co. 24 Beav. 339. What may 
 
 De G. & Sm. 743 ; 1 De G., M. & G. 737 ; amount to a fraud on the legislature or 
 
 see Gage v. Newmarket Ry. Co. 18 Q. B. on the other landowners, see Lord How- 
 
 457. den v. Simpson, ubi sup. ; Shrewsbury, &o. 
 
 (s) Simpson v. Lord Howden, 1 Kee. Ry. Co. v. London & North Western Ry. 
 
 583 ; 3 My. & Cra. 97 ; 10 Ad. & EI. 793, Co. 17 Q. B. 652; 4 De 6., M. & G. 115. 
 
 (1) An agreement by projectors adopted by the directors which secures a benefit to 
 the directors and their officers without the knowledge of the shareholders, of course 
 cannot be enforced. Maxwell v. Port Tennant, &c. Co. 24 Beav. 495. 
 
 [75] 
 
CH. 11.] . COMPANY BOUND BY CONTEACT, ETC. Ill 
 
 5. After the bill has passed, the company, according to grave 
 authorities, stand in the place of the projectors ; and they are 
 bound by the arrangements entered into by the projectors ; and 
 therefore an agreement by projectors with a landowner to pur- 
 chase his estate if the bill pass, would be enforced against the 
 company ; (t) and they cannot object that they have allowed the 
 time limited by the act to expire; but the seller should file his bill 
 before the time has expired.(M) But it has been held that the 
 company when formed, are not bound by the agreement of the 
 projectors, although they have had the benefit of the withdrawal 
 by the owner of his opposition, unlesfe they adopt and take the 
 benefit of the contract.(x) And the authority of the cases decided 
 by Lord Cottenham has * recently been questioned in the House 
 of Lords, although those cases were not overruled, as they did 
 not govern the case before the House, for all the contracts 
 which he held to be binding on the company were contracts 
 to do things warranted by the terms of the incorporation. 
 But as in the case before the Lords, the act to be done was 
 not an act for the effecting of which the company when estab- 
 lished could lawfully devote its funds, an agreement by a com- 
 mittee of management on behalf of the projected company was 
 held to be ultra vires, and not binding on the company after 
 the act passed. (^) In general, a cpmpany cannot be bound 
 where the act of the directors is ultra vires.{z) A considerable 
 
 (i) Edwards v. Grand Junction Ey. Co. agent of the existing company entered 
 
 1 My. & Cra. 650. into the agreement. The statements of 
 
 (m) Hawkes v. Eastern Counties Ey. the facts in p. 132, and in the judgment, 
 
 Co. 3 De G., & Sm. 743 ; 1 De G., M. & G. do not seem to agree. In this case, and 
 
 737 ; 5 Clark, 331 ; Shrewsbury, &c. Ey. in Preston v. Liverpool Ry. Co. the line 
 
 Co. V. London & North Western Ey. Co. was abandoned. 
 
 ■ 2 Mac. & G. 324; 3 Mac. & G. 70; 16 (jf) Caledonian, &c. Ey. Co. v. Mayor 
 
 Beav. 441 ; 17 Q. B. 652; 4 De G., M. of Helensburgh, 2 Macq. H. of L. 391. 
 
 &G. 115; 6 H. L. Cas. 113; Lindsey,Ld. (2) See Hawkes v. Eastern Counties 
 
 V. Great Northern Ey. Co. 10 Hare, 664; Ey. Co. ubi sup. ; Macgregor v. Deal, &c. 
 
 Bryson u. Warwick, &c. Can. Co. 1 .Sm. Ey. Co. 18 Q. B. 618 ; Gage v. Newmarket 
 
 & Gif. 447 ; 4 De G., M. & G. 711. Ey. Co. 18 Q. B. 457 ; Salamon v. Laing, 
 
 (x) Preston v. Liverpool, &c. Ey. Co. 1 12 Beav. 339 ; Munt v. Shrewsbury, &c. 
 
 Sim. N. S. 586 ; 17 Beav. 114 ; 5 H. L. Cas. Ey. Co. 13 Beav. 1 ; East Anglian Ey. 
 
 605; Leominster Canal Co. v. Shrews- Co. v. Eastern Counties Ey. Co. 11 C. 
 
 bury, &c. Ey. Co. 3 Jur. N. S. 930 ; Will- B. 775 ; Ld. Ward v. Oxford, &c. Ey. Co. 
 
 iams V. St. Geo. Har. Co. 24 Beav. 339; 2 De G.,M. & G. 750; Mayor of Norwich 
 
 Nickoll's case, lb. 639 ; Gooday v. Col- v. Norfolk Ey. Co. ; Bostock a. North 
 
 Chester, &c. Ry. Co. lb. 132, where the Stafford Ey. Co. 4 B. & B. 397, 798 ; 
 
 [76] 
 
112 
 
 COMPANY BOUND BY CONTRACT, ETC. 
 
 [CH. II. 
 
 difference of opinion as to this doctrine of ultra vires prevailed 
 for some time, but the law is now settled against the liability of 
 the company. (a) Where the agreement before the act is contin- 
 gent and dependent upon the company requiring or taking the 
 land, and after the act they abandon their scheme and do not 
 want the land, clearly a specific performance will not be en- 
 forced.(&) (1) On the appeal in Hawkes v. Eastern Counties 
 Company, Lord Campbell, admitting the rights of individuals 
 so to bind themselves, said that the directors of a railway com- 
 pany have only a limited authority to negotiate for the pur- 
 chase of land, and he rather thought that they would be con- 
 sidered as having exceeded that authority to the knowledge of 
 the vendor if they agreed to accept a defective title, thereby 
 subjecting *the railway company to the risk of being inter- 
 
 Lancaster, &c. Ry. Co. V. London & 
 North Western Ry. Co. 2 K. & J. 293 ; 
 Willey V. West Corn. Ry. Co. 2 H. & N. 
 703 ; Richmond's case, 4 K. & J. 305 ; 
 Ellis V. Colman, 4 Jur. N. S. 350, for 
 remedy against the directors. 
 
 (a) See 5H.,L. Cas. 331; Bargate v. 
 Shortridge, lb. 297 ; 2 Macq. H. of L. 420 ; 
 Bateman u. Mayor, &c. of Ashton-under- 
 Lyne, 3 H. & N. 323; [Hawkes v. The 
 Eastern Counties Railway Co. 1 De G., M. 
 & G. (Am. ed.) 737, 760, and note (1), and 
 the English and American cases there 
 cited ; Shrewsbury & Birmingham Ry. Co. 
 V. The London & North Western Ry. Co. 
 4'De G., M. & G. (Am. ed.), 115, note (2), 
 and the English and American cases there 
 cited; 6 H. L. Cas. 113; Morris & Essex 
 Railroad Co. v. Sussex Railroad Co. 5 C. 
 E.Green (N.J.), 542, 562-564; East Bos- 
 ton Freight Railroad Co. v. Eastern Rail- 
 road Co. 13 Allen, 422 ; Pennsylvania 
 &c. Railroad Co. v. Dandridge, 8 Gill & 
 J. 248; Downing v. Mount Washington 
 
 Road Co. 40 N. H. 235 ; Bangor Boom 
 Co. V. Whitney, 29 Maine, 123; Hood v. 
 New York & New Haven Railroad Co. 
 22 Conn. 502 ; Pearce v. Madison & 
 Ind. Railroad Co. 21 How. (U. S.) 441; 
 Brown v. Winnisimmet Co. H Allen, 
 331.] 
 
 (6) Webb V. Direct L. & Ports. Ry. Co. 
 9 Hare, 129; reversed 1 De G., M. & G. 
 621 ; Ld. Jas. Stuart v. London & North 
 West. Ry. Co. 1 De G., M. & G. 721 ; 15 
 Beav. 513 ; Bland u. Crowley, 6 Ex. 522 ; 
 Gage V. Newmarket Ry. Co. 18 Q. B. 457 ; 
 Preston v. Liverpool, &c. Ry. Co. 17 Beav. 
 114; 2 Macq. H. of L. 420; Gooday v. 
 Colchester, &c. Ry. Co. Zft. 132 ; Hawkes 
 V. Eastern Counties Ry. Co. 3 De & Sm. 
 743 ; 1 De G., M. & G. 737 ; 5 H. L. Cas. 
 331 ; and see p. 605 ; Edinburgh, &c. Ry. 
 Co. V. Philip, 2 Macq. H. of L. 514 ; 
 Williams v. St. George's Har. Co. 2 De G- 
 & J. 547 ; London & Brighton Ry. Co. v. 
 London & S. Western Ry. Co. 4 De G. & 
 J. 389. 
 
 (1) As to a stipulation in the deed that the directors shall buy the shares, if they 
 do not allow a transfer to a stranger,^and they have no assets, see Taft v. Harrison, 10 
 Hare, 489. _ Property taken compulsorily cannot be employed for purposes not con- 
 templated by the act so as to affect the enjoyment of the former owner over the rest 
 of his estate. Boston v. North Staff. Ry. Co. 4 E. & B. 397, 798 ; 3 Sm. & Gif 283 ; 
 Shrewsbury, &c. Ry. Co. v. London & N. "W. Ry. Co. 6 H. of Lords, 113. 
 
 [77] • 
 
CH. 11.] SALES BT. COMPULSION. PRICE. 113 
 
 rupted by an ejectment from part of the land over which the line 
 runs. He must likewise doubt as to the effect to be given in 
 such a case as that before the House to a covenant that the com- 
 pany would obtain power by act of parliament to make a good 
 title if no such power had been granted.(c) But the latter point 
 seems to be settled in favor of the validity of the covenant in 
 equity. And another of the law lords observed, that although a 
 corporation can only contract under seal, yet he was of opinion 
 that corporations were bound by their conduct and by the acts of 
 their solicitors after their contract, just as an individual would 
 he.(d) It would not, however, be safe to trust to this view, and 
 solicitors are advised not to rely upon each other in these trans- 
 actions, but to insist upon a solemnly executed contract by the 
 company.(e) 
 
 6. The company may, in addition to the land authorized to be 
 compulsorily taken, contract with willing parties for the pur- 
 chase of any land adjoining or near to the railway, not exceed- 
 ing the prescribed- number of acres, for extraordinary purposes, 
 namely, for stations, works, &c.(/) 
 
 7. If the parties cannot agree, the company, after the capital is 
 subscribed under the contract, may compel a sale to them,(g') (1) 
 but not where they propose to execute only a portion of the 
 line,(A) nor after the expiration of the period prescribed by the 
 special act, and if no period be prescribed, not after the expira- 
 
 (c) 5 H. L. Cas. 363, 364 ; Devenish v. Dock Co. v. Sinnott, 8 E. & B. 347 ; Be 
 
 BroFD, 2 Jur. N. S. 1043. Athenseum Life Ins. Soc'y, 4 K. & J. 549. 
 
 {d) lb. 376 ; Eeuter v. Elec. Tel. Co. 2 (/) 8 Vict. c. 18, s. 12 ; 8 Vict. c. 20, s. 
 
 Jnr. N. S. 1245. 45 ; see Hawkes v. Eastern Counties Ry. 
 
 (e) See and consider Leominster Canal Co. 3 De G. & Sm. 743 ; 1 De G., M. & 
 
 Co. V. Shrewsbury, &c. Ry. Co. 3 Jur. G. 737. 
 N. S. 930; Williams v. St. Geo. Har. (jr) 18 Vict. u. 18, ». 16,17. 
 Co. 2 De G. & J. 547 ; Prince of Wales (A) Gray v. Lirerpool, &c. Ry. Co. 9 
 
 Ass. Soc'y V. Athenaeum Assu. Soc'y, 1 Boav. 391 ; Cohen v. Wilkinson, 1 Mac." 
 
 Ell., Bl. & Ell. 183 ; Agar v. Atheuseum & G. 481 ; see Salmon v. Randall, 3 My. 
 
 Assu. Soc'y, 3 C. B. N. S. 725 ; London & Cra. 439. 
 
 (1) As to extent of compulsory powers, under 8 Vict. c. 20, s. 14, see Beardmer v. 
 London & North Western Ry. Co. 1 Mac. & G. 112, and under s. 16, see Gather v. 
 Midland Ry. Co. 2 Phil. 469 ; Sadd v. Maiden, &c. Ry. Co. 6 Ex. 143. A restricted 
 power to purchase is not to be extended by construction beyond the necessary limits ; 
 Warden, &c. of Dover v. South Eastern Ry. Co. 9 Hare, 495 ; Gray v. Liverpool, &c. 
 Ry. Co. 9 Bear. 391. 
 
114 EFFECT OF NOTICE AS ^A CONTRACT. [CH. II. 
 
 tion of three years from the passing of the special act,(i) (1) 
 unless by mistake they shall have omitted to purchase any in- 
 terest in land upon which they shall have duly entered.(A) 
 Mines, however (except such parts as * shall be necessary to 
 be carried away or used in the works), are not to pass, unless 
 expressly purchased and named in the conveyance and con- 
 veyed thereby.(/) Where the company intend to avail them- 
 selves of the compulsory powers, they are authorized to give 
 notice to the other parties, demanding particulars of their 
 claims and interests, and the notice is to state the lands re- 
 quired, and that the promoters ar^ willing to treat for the pur- 
 chase thereof, and as to compensation for damage.(»i) The 
 parties may agree after the notice. If the company buy the 
 lessee's interest they must buy the reversion also.(w) If the party 
 fail to treat with the company, or if he and the promoters dis- 
 agree as to the amount of the compensation, ample means for 
 fixing the amount are provided; in the case of a claim not ex- 
 ceeding 501. by two justices,(o) or if exceeding 50/., and the party 
 desire it, by arbitration. (ja)' In other cases of non-agreement the 
 compensation is to be settled by a jury,{q) and the costs are pro- 
 vided for,(r) or in case of absence or the like, by a surveyor 
 named by two justices,(s) with, if desired by the party, a refer- 
 ence to arbitration. (/) 
 
 ()■) 8 Vict. c. IS, s. 123 ; see 11 & 12 c. 43, s. 11 ; Eeg. v. Leeds, &c. Ry. Co. 
 
 Vict. c. 3. _ 21 L. J. N. S. Q. B. 259. 
 
 (k) lb. s. 124-126. ' (p) 8 Vict. c. 18, s. 23-37 ; Skerratt v. 
 
 (/) 8 Vict. c. 20, s. 77-85. For regnla- North Staff. Ry. Co. 2 Phil. 475; Doe v. 
 
 tions as to mines, see 7i. s. 78-85; Cale- Leeds, &c. Ry. Co. 16 Q. B. 796; In re 
 
 donian Ry. Co. ». Sprot, 2 Macq. H. of L. Elliot, 2 De G. & Sm. 17 ; In re Hawley, 
 
 449 ; rietcher v. Gt. West. Ry. Co. 4 H. lb. 33 ; s. 68 ; Hailstone v. York, &c. Ry. 
 
 &N. 242. Co. 15 Q. B. 404; Reg. !/.< London & 
 
 (m) 8 Vict. c. 18, s. 18-20; as to sec. N. W. -Ry. Co. 3 E. & B. 443. As to 
 
 19, Kemp v. West End, &c. Ry. Co. 1 costs of tenant for life, see s. 34. In re 
 
 Jur. N. S. 1012. Aubrey's Estate, 17 Jur. 874. 
 
 (n) Legg V. Belfast, &c. Ry. Co. 1 Ir. (q) S. 38-57. 
 C. L. R. 125, n. ; Reg. v. London & North (r) S. 51-53. 
 Western Ry. Co. 18 Jur. 993 ; 3 E. & B. (s) S. 58-68. 
 443. ' (t) S. 64-67. 
 
 (0) 8 Viet. c. 18, s. 22 ; see 11 & 12 Vict. 
 
 ( 1 ) Where in an act a power is given to a company to purchase lands for works 
 and no time is specified within which the work is to be completed, the time cannot be 
 limited. Thicknesse v. Lancaster Canal Co. 4 M. & W. 472. 
 
 [78] 
 
CH. II.] EFFECT OF NOTICE AS A CONTRACT. 115 
 
 8. The company may give a second notice for more land,(M) 
 but notice cannot be countermanded,(a;) nor can a deficiency of 
 funds in general be made a defence ; (y) the notice is binding 
 and creates the relation of vendor and purchaser,(2:) (1) and 
 it is no objection *that the price and the compensation form 
 one sum. (a) The notice is a kind of inchoate or quasi pur- 
 chase, and it places the landowner in the same position as if 
 there had been a contract to purchase his land ; he is placed in 
 the position of a vendor, and he may compel the company to 
 complete, after the expiration of the prescribed period, and he is 
 bound equally with the company, who may enter after the ex- 
 piration of the term limited for compulsory purchase, for the 
 power of entry is a power necessary for the completion of .the 
 purchase, but is not itself one of the powers of compulsory pur- 
 chase.(6) 
 
 9. "Upon the authority of Walker v. The Eastern Counties 
 Railway Company, and Adams v. The London and Blackwall 
 Railway Company, and upon the authority of several learned 
 judges,(c) the force of whose expressions it is difficult to explain 
 
 (m) Stamps V. Birmingham, &c. Ry. 1 5 Q. B. 647, n. ; Marquis of Salisbury r. 
 
 Co. 7 Hare, 251; 2 Phil. 673; see 17 Great Northern Ry. Co. 17 Q. B. 840. 
 Beav. 81, 82; Simpson u. Lancaster, &c. (c) See Walker v. Eastern Counties 
 
 Ry. Co. 15 Sim. 530. Ry. Co. 6 Hare, 594 ; Adams v. London 
 
 (x) Rex V. Hungerford Market Co. 4 & Blackwall Ry. Co. 2 M. & G. 118; 
 
 B. & Ad. 327; Sparrow v. Oxford, &c. Hyde v. Edwards, 12 Beav. 160; South 
 
 Ry. Co. 2 De G., M. & G. 94; 13 & 14 Eastern Ry. Co. v. Knott, 10 Hare, 122; 
 
 Vict. c. 83, a. 20 ; [Tawney v. Lynn & Inge v. Binningham, &c. Ry. Co. 1 Sm. 
 
 Ely RaUway Co. 16 L. J. N. S. Ch. 282.] & Gif. 347 ; 3 De G., M. & G. 658 ; Mur- 
 
 (y) Rex u. Manchester Commissioners, roe v. Newry, &c. Ry. Co. 2 Ir. C. R. 
 
 4 B. & Ad. 333, n. ; see Reg. v. York, 260 ; 1 K. & J. 34 ; see 1 Drew. & Sm. 
 
 &c. Ry. Co. 1 E. & B. 178, 858 ; Reg. u. 454 ; the writer considered the cases in 
 
 Ambersgate, &c. Ry. Co. 1 E. & B. 372. this and the next note in the last edition 
 
 («) Doo V. London & Croydon Ry. Co., to establish the point in the text, but in 
 
 1 Railw. Cas. 257 ; Reg. v. Birmingham referring to all the cases generally on the 
 
 Ry. Co. 15 Q. B. 634, 647, n., which subject, he did not intend to represent that 
 
 overruled Brockelbank v. Whitehaven Ry. theje was no difference between them. 
 
 Co. 15 Sim. 632 ; see Morgan v. Milman, The cases were referred to as a class, as a 
 
 10 Hare, 279 ; 3 De G., M. & G. 24. text writer is often compelled to do. This 
 
 (a) Webb v. Direct London, &c. Ry. should be kept in view throughout the 
 Co. 9 Hare, 129 ; vide inf. citations. 
 
 (b) Birmingham, &c. Ry. Co. v. Reg. 
 
 (1 ) A specific performance of an agreement to make a railway would not be enforced ; 
 the remedy is at law. Heathcote v. North Stafford Ry. Co. 20 L. J. N. S. 82; South 
 
 [79] 
 
116 OPERATION OF NOTICE BY COMPANY. [CH. Ii; 
 
 away,(l) it was stated, in the last edition of this work, that, after 
 a notice from a railway company, the landowner might; file a bill 
 for a specific performance. (c^) But it was added that the right 
 to a specific performance had been lately denied by V. C. Kin- 
 dersley, although it was not necessary to * decide the point,(c^) 
 and that a specific performance was refused in a late case by the 
 master of the rolls. (e) 
 
 10. Since the publication of the last edition of this work, V. 
 C. Kindersley, in an elaborate judgment, decided that a notice 
 by a railway company to a man who had devised his estate, and 
 no other act done until after his death, did not operate as a con- 
 version as between the devisees and the residuary legatee, and 
 therefore the devisees were entitled to the purchase money. (/) 
 This decision will probably not be disputed. It was not the in- 
 tention of the writer to state the contrary rule,(g') nor did he 
 
 (c 1) [See Jacobs o. Peterborough & Co. 1 K. & J. 34 ; 5 De G., M. & G. 851 ; 
 
 Shirley R. K. Co. 8 Cush. 223.] 1 Drew. & Sm. 456 ; Williams v. St. 
 
 {d) Hill u. Great Northern %. Co. 1 Geo. Har. Co. 24Beav. 339; 2 De G. & J. 
 
 Jur. N. S. 102. .547. 
 
 (e) Gooday o. Colchester Ey. Co. 17 (/) Haynes v. Haynes, 1 Drew. & Sm, 
 
 Beav. 132 ; and see Leominster Canal Co. 426. [See Re Arnold, 32 Beav. 591 ; 9 
 
 L-. Shrewsbury, &c. Ry. Co. 3 Jar. N. S. .Tur. N. S. 883.] 
 430 ; Pinchin v. London & Blackwall Ey. (g) See 1 Drew. & Sm. 452, 460. 
 
 Wales Ey. Co. v. Wythes, 1 K. & J. 186; 3 Eq. E. 153; 5 De G., M. & G. 880; 
 Hamilton v. Dunsford, 6 Ir. C. Eep. 412. 
 
 (1) In giving judgment in Lord Salisbury's case, 17 Q. B. 853, Lord Campbell C. 
 J. observed that, strictly speaking, there is no purchase, and no contract created by the 
 notice under section 18 ; but the company and the landowners were placed by the 
 notice in the same position as if a contract of purchase had been actually entered into 
 by them. In Eegina and Oxford Junction Railway Company, the judgment in which 
 case was confirmed in the exchequer chamber, the judges held that the notice placed 
 the company and the landowner in the position of purchaser and vendor, and that the 
 contract thereby created might be considered as mutual, it being in the landowner's 
 power to compel the company, after the expiration of the period prescribed for exercis- 
 ing their compulsory powers, to complete their purchase. It was possible that there . 
 might be no reciprocity in the transaction, that the landowner might be free and the 
 company bound ; but they should not, except with the greatest caution, arrive at such 
 a conclusion. It seemed to him, on the contrary, that the intention of the legislature was, 
 that the contract of purchase should be complete as soon as the notice had been given by the 
 company. The great majority of the decisions was in favor of this view. Mr. Justice 
 Patteson said that he did not at aU dissent from the decisions, in which it was laid 
 down that the mere notice by the company was of itself sufficient to create a contract of pur- 
 chase between them and the landowner; see the observation on these opinions by V. C. 
 Kindersley, 1 Drew. & Sm. 446. 
 
 [80] 
 
CH. II.] OPERATION OF NOTICE BY COMPANY;. 117 
 
 intend to do more than to state how the law stood according to 
 the decided cases, as far as the conflict between them enabled 
 him to do so. In Haynes v. Haynes, V. C. Kindersley took the 
 opportunity of maintaining his opinion already expressed; he 
 treated Walker v. Eastern Counties Ry. Company as ill decided, 
 and considered that there was no other case in which a notice 
 had been held to constitute a contract on the part of the land- 
 owner. The learned judge held that even if the notice consti- 
 tuted a contract by the landowner to sell, yet he could not obtain 
 a specific performance against the company, and clearly that a 
 bill for a specific performance would not lie against the land- 
 owner, in respect of the contract, if the notice amounted to a 
 contract. The only question however which he was called upon 
 to decide was, what was the effect of the notice with respect to 
 the landholder. It was, we may observe, a settled point, that an 
 actual sale (1) to a railway company of land for a proposed rail- 
 way ought to be enforced in equity, like any other contract for 
 sale of land, (A) even where they had abandoned the line, and 
 they had allowed the time to expire ; and it had been held that 
 after a notice by the company to purchase, an agreement ' pre- 
 pared by their agents and signed by the seller fixing the price, 
 bound the company to specifically perform the agreement, al- 
 though not under their corporate seal.(t) 
 
 11. The company may obtain a specific performance where 
 notice to take the land has been served and the price has been fixed 
 by arbitration, and they are not compelled to resort to their comr 
 
 (h) Hawkes v. Eastern Counties Ry. Edinburgh & Perth Ry. Co. u. Leven, 1 
 
 Co. 1 De G., M. & G. 737, 5 H. L. Cas. Macq. H. L. Cas. 284. 
 
 331 ; Nash v. Worcester Improvement (i) Smith v. Dublin & Bray Ry. Co. 3 
 
 Commissioners, 1 Jur. N. S. 973 ; see Ir. C. R. 225. 
 
 (1) The text in the last edition was, tha-t "a sale," to a railway company, &o. I 
 haye endeavored to make the meaning clearer by the expression " an actual sale." 
 After quoting the passage as it stood in the text, the vice chancellor, in the case 
 above referred to, observed that he thought it must be presumed that the author only 
 intended thereby to lay down that if there be an actual sale by the lando-vjfner, whether 
 arising out of a notice to treat or not, such sale may be enforced in equity, like any 
 other contract for sale of land, 1 Drew. & Sm, 457. This was the inttotion. The 
 text stated what had been decided for and also against the equitable jurisdiction, and 
 then stated what was and still is clearly settled. 
 
 [81] 
 
118 OPERATION OF NOTICE BY COMPANY. [CH. II. 
 
 pulsory powers. (A;) But notices to treat, whatever operation 
 they have, cannot of course be placed higher than contracts, and 
 de|ay and conduct on the part of the company may be such as 
 to authorize the court to treat the contract as abandoned, and no 
 longer capable of being enforced. (Z) 
 
 12. In a case,(m) where notice was given by a company to a 
 person who was supposed to be a joint lessee, but who was in 
 fact an equitable annuitant, and the company having obtained a 
 legal prior title from a first incumbrancer, under a power of sale, 
 refused to pay the annuitant the value of his annuity, the court 
 upon a bill filed by the latter compelled the payment sought for. 
 The view taken by the vice chancellor appears to be, that it is 
 contrary to equity to allow a railway company to .deal with a 
 first incumbrancer in such a manner as to defeat the rights of 
 other persons. This is a point of great importance, but the de- 
 cree was reversed by the appellant court upon the frame of the 
 bill, without any opinion being pronounced on the merits, («) 
 and without prejudice to the filing of a new bill, a demurrer to 
 which, when filed, the vice chancellor allowed. He considered 
 that the company had acquired a good title under the power of 
 sale in the prior security, which appears to be the true view of 
 the case. 
 
 13. The notice determines what land is to be taken, (o) but 
 notice to take part will not of itself compel the company to take 
 the vvhole.(;o) If a company give notice to take a part where 
 they are bound to take the whole, and then refuse to pay the 
 price demanded, the owner may require them to take the whole, 
 notwithstanding his offer to sell a part.(g') If after the notice 
 
 (k) Regent's Canal Co. v. Ware, 23 & 6. 118; Stone v. Commercial Ry. Co. 
 
 Bear. 575. 4 My. & Cra. 122 ; see Burkinsliaw v. 
 
 (/) Hodges V. Metrop. Ey Co. 28 Beav. Birmingham, &c. Ey. Co. 5 Ex. 475, et 
 
 109 ; see Adams v. London & Black wall sup. where the company has entered under 
 
 Ey. Co. 2 M. & G. 132 ; [Richmond v. s. 85, Doe v. North Stafford, &c. Ey. Co. 
 
 North London Railway Co. L. R. 5 Eq. 16 Q. B. 526 ; Doe v. Leeds, &c. Ey. Co. 
 
 352 ; L. R. 3 Ch. Ap. 679.] Ih. 946. 
 
 (m) Hill <^. Great Northern Ey. Co. 18 {p) Eeg. v. South Western Ry. Co. 12 
 
 Jur. 116; 23 L. J. N. S. 20; Eanken v. Q. B. 775; see Schwinge o. London & 
 
 East & West India Docks, &c. Ey. Co. Blackwall Ey. Co. 3 Sm. & Gif. 30 ; 
 
 12 Bear. 298. King v. Wycombe Ey. Co. 28 Bear. 104. 
 
 (n) 5 De G., M. & G. 66; 2 Eq. Eep. (j) Gardner i;. Char. Cross Ey. Co. 8 
 
 1069, 18 Jur. 65. Jur. N. S. 51. 
 
 (o) Adams v. Blackwall Ry. Co. 2 M. 
 
CH. n.] HOW PUKCHASE MONEY IS TO BE PAID. 119 
 
 the price is *not ascertained, the powers of the act must be 
 called into action to fix it.(r) 
 
 14. Although the company have power to purchase lands, and 
 to deposit the purchase money in the bank if the owner fail to 
 make out a title, and thereupon the interest in the lands is to vest 
 in the company, yet they cannot avail themselves of the power 
 to deposit the money without having previously applied to the 
 owner for an abstract of title, who is not bound to send it to 
 them without its having been asked for.(s) The costs of the 
 abstract fall on the company.(<) Where an early railway act 
 directed that all contracts, sales, and conveyances should be 
 made at the expense of the company, this was held to include 
 the costs of making out the title. The court said that in an 
 ordinary case between vendor and purchaser, when it is part of 
 the contract that " the costs of the contract " should be paid by 
 the purchaser, that stipulation would entitle the vendor to costs 
 of this description. (m) 
 
 15. The purchase money coming to parties under disabilities, 
 if amounting to 2001., is to be paid into the bank,(l) and to be 
 applied in redemption of the land tax,(a;) or in discharge of in- 
 cumbrances affecting the land in respect of which such money 
 shall have been paid, or affecting other lands settled therewith to 
 the like uses,(y) or in the purchase of other lands to be settled to 
 the old uses,(2r) or in specified cases in building,(o) or in payment 
 
 (r) Walker v. Eastern Counties Ey. for rebuilding an estate settled to like 
 
 Co. 6 Hare, 594. uses, In re Davis's Est. 27 L. J. N. S. 
 
 (s) Doe V. Manchester, &c. Ky. Co. 2 712; 4 Jur. N. S. 1029; 3 De G. & J. 
 
 C. & K. 162 ; 14 M. & W. 687. 144. The purchase money of glebe lands 
 
 (() 8 Vict. c. 18, s. 82. allowed to be expended in building a 
 
 (u) Exparte Addies.' Charity, 3 Hare, 22. parsonage house, Re Incumbent of Whit- 
 
 (x) Ex parte Northwick, 1 Yo. & Col. field, Ij. & H, 610. 
 
 166. («) See pi. 21, inf. As to costs of 
 
 (y) See ex parte Passmore, 1 Yo. & Col. tenant for life, see Ex parte Passmoje, ubi 
 78 ; Ex parte Wilkinson, 3 De G. & Sm. sup. ; and ^ to costs of trustees, Ex parte 
 633. As to corporation lands, Ex parte Longfield, 1 Yo. & Col. 79 ; Exparte Tow- 
 Corporation of Cambridge, 6 Hare, 30 . good, lb. 588. 
 
 and as to a rector, Ex parte Lockwood, 14 (a) Exparte Shaw, 4 Yo. & Col. 506. 
 Beav. 158, 159, n. Tenant for life allowed 
 
 (1) A company, under pressure, paid the money to a corporation instead of into the 
 bank, and the latter was ordered, on motion, to pay it into court. London & North 
 Western Ey. Co. v. Corporation of Lancaster, 15 Beav. 22. 
 
 [82] 
 
120 CONVEYANCE: DISPOSITION OF PEICE. [CH. 11. 
 
 to any party becoming absolutely entitled to such money, and 
 an interim investment (b) of the money may be made, and the 
 interest paid to the party who would have been entitled to 
 the rents.(c) A question * has been raised, who is to elect to 
 which of these purposes the money shall be applied : it would 
 probably be held that the persons entitled under' the settlement 
 may elect, subject, no doubt, to the correction of the court; an 
 election by a tenant for life and the trustees would hardly be set 
 aside by the court without strong grounds.(c?) If the purchase 
 money do not exceed 200L, but exceeds 20/., it may be paid 
 into the bank or to two trustees upon the like trusts, and if the 
 money do not exceed 20/., (e) it is to belong to the party en- 
 titled to the rents.(/) 
 
 16. When the money is deposited, the owner is to convey to 
 the promoters, and in default, or if he fail to adduce a good title 
 to their satisfaction, the promoters themselves may, by a simple 
 declaration, vest the property in themselves ; (g-) and this extends 
 to mortgages,(A) and to rentcharges, and the ]ike.(/) These pro- 
 visions have been held to be confined, in the first instance, to the 
 cases provided for by the seventh section, and where the party in 
 possession has shown a bad title, and the true owner cannot be 
 found, it has been said that the promoters of the undertaking 
 must have recourse to the jury clauses of the act, and that if the 
 true owner fail to appear, the seventy-sixth and seventy-seventh 
 clauses will come into operation. (A) Where the price has been 
 assessed by a jury, the company must apply for a title, and can- 
 not, as we have seen, at once pay the money into the bank. 
 
 17. If the owner refuse to accept the purchase money, or neg- 
 lect or fail to make out a title, or if he refuse to convey, or be 
 
 (6) Ex parte Eton Coll. 20 L. J. N. S. {d) In re He Beauvoir, 2 De G., F. & 
 
 1 ; 3 Uailw. Cas. 271. As to investments J. 5. 
 
 on mortgage, see Ex parte Francklyn, I (e) In re Ld. Egremont, 12 Jur. 618; 
 
 De G. & Sm. 528 ; Barry v. Marriott, 2 Ex parte Barrett, 1 5 Jur. 3 ; Ex parte 
 
 De G. & Sm. 491. Rector of Little Steiping, 5 Eailw. Cas. 
 
 (c) Sec. 69. As to ecclesiastical corpo- 207. 
 rations, In re Archbishop of Canterbuiy, (f) 8 Vict. c. 18, s. 69-75. 
 
 2 De G. & Sm. 365 ; In re Bucks Ey. Co. {g) S. 75. 
 
 5 Eailw. Cas. 702; and as to charity (A) S. 109-111. 
 
 trustees, In re Collin's Charity, 20 L. J. (t) S. 117. 
 
 N. S. 168. (k) Douglas v. N. W. Ey. Co. 3 K. & 
 
 173. 
 
 [83] 
 
CH. n.] CONVEYANCE : DISPOSITION OF PRICE. 121 
 
 absent, &c., the money is to be paid into the bank, subject to 
 the control of the court of chancery ; (/) and the court is author- 
 ized to apply the money according to the rights of the parties,(m) 
 but has no jurisdiction as to interest ; (m) and the party in pos- 
 session is to be deemed the'owner until the contrary be shown,(o) 
 and he is entitled to an order on his affidavit ; but that will not 
 be dispensed" with, although the company have accepted the title 
 and consent.(j») When the application is for the dividends 
 only, the affidavit of his solicitor will be received. (^) A party 
 entittled to a share may apply * for it without giving notice to 
 his co-proprietors. (r) Tenant for life need not serve those in 
 remainder ; but he must serve his own incumbrancers, and the 
 company are not to pay their costs of attendance.(s) A transfer 
 of the fund to an administration suit is, of course, as to costs, a 
 payment out of court, within the eightieth section.(<) The whole 
 fund, the price of a leasehold for lives, which had dropped, was 
 paid to the tenant for life, although the trustees had neglected 
 to renew for a life, in lieu of the testator's, as directed by his 
 will ; but it was without prejudice to any question as to the 
 renewal. (m) Forms of conveyance are added to the act ; but 
 it is at the option of the purchasers to adopt them, or any other 
 form they think fit. All conveyances made according to the 
 forms in the schedule, or as near thereto as the circumstances of 
 the case will admit [which is not very consistent with the 
 authority to adopt any other form they think fit], are made 
 effectual to vest the lands thereby conveyed in the promoters of 
 the undertaking, and are to operate to merge all terms of years 
 
 (I) S. 76, 77; Douglas u. N. W. Ry. (r) In re Midland Countiea Ey. Co. 11 
 
 Co. 3 K. & J. 173.' Jar. 1095. As to the costs, see Melling v 
 
 (m) S. 78 ; In re Alston's Estate, 28 L. Bird, 22 L. J. N. S. 599. 
 
 J. 337. (s) Ex parte Smith, 6 Rail. Cas. 150 ; 
 
 (n) Crystal Palace Ry. Co. o. Divers, 1 one order may be made for several pur- 
 
 Jur. N. S. 995. poses; Ex parte Metherell, 20 L. J. N. S. 
 
 (o) S. 79 ; see Ex parte Freemen, &c. 621 ; see In re Martin, 22 L. J. N. S. 
 
 of Sunderland, 1 Drew. 184 ; Douglas v. 248. 
 
 N. W. Ry. Co. 3 K. & J. 173. (t) Dinning v. Henderson, 2 De 6. & 
 
 (p) Ex parte Hollick, 16 L. J. N. S. 71 ; Sm. 485 ; Hayes v. Barton, 1 Drew. & 
 
 Ex parte Shears, 2 Yo. & Jer. 493 ; Ex Sm. 483. , 
 
 parte Grainge, 3 Yo. & Col. 62, and cases («) In reBeaufoy's Estate, 1 Sm. & Gif. 
 
 in the note, p. 66. 20 ; see s. 78, 8 "Vict. o. 18. 
 
 (}) Ex parte Lady Braye, 16 Jur. 1129 ; 
 22 L. J. N. S. 285. 
 
 [84] 
 
122 COVENANTS FOE TITLE : CONVERSION OF ESTATE. [CH. II. 
 
 attendant by express declaration or by construction of law on 
 the estate or interest so thereby conveyed, and to bar and de- 
 stroy all such estates tail, and all ,other estates, rights, titles, re- 
 mainders, reversions, limitations, trusts, and interests of and in 
 the lands comprised in such conveyances, which shall have been 
 purchased or compensated for by the consideration therein men- 
 tioned ; but although terms of years are thereby merged, they 
 are, in equity, to afford the same protection as if they had been 
 kept on foot and assigned to a trustee for the promoters of the 
 undertaking, to attend the inheritance.(a;) (1) 
 
 18. Where the sale is by compulsion, the vendee cannot re- 
 quire any covenants for title ; but where the sale is by agree- 
 ment, the vendor usually enters into the common covenant9,(2/) 
 which covenants would run with the land, (z) 
 
 19. Where a person is competent to -sell, and a binding con- 
 tract, or what is tantamount to it, is made under an act giving a 
 company power, to take land, the landowner's interest is con- 
 verted int« personalty, and will go to his personal representa- 
 tive, notwithstanding *a devise by him before the sale of the 
 estate ; (a) (2) but a mere notice by a company to take the 
 owner's land under compulsory powers, does not, we have seen, 
 operate as a conversion. (6) And where the statute does not 
 alter the nature of the estate, and the land is in settlement and 
 is taken under the powers of the act, there is no conversion, 
 and the money is impressed with the character of real estate. (c) 
 So, in the like case, where the person is seised in fee, but is in- 
 capacitated to contract, e. g., by mental incapacity, the nature 
 
 (x) 8 Vict. c. 18,- B. 81 ; see The Queen (6) Supra, pi. 10 ; Haynes v. Haynes, I 
 
 V. General Cemetery Co. 6 E. & B. 415. Drew. & Sm. 426. [See Re Arnold, 32 
 
 il/) See in re London Bridge Acta, 13 Beav. 591.] 
 
 Sim. 176. (c) In re Taylor's Settlement, 9 Hare, 
 
 (x) West London Ey. Co. v. London 596 ; in re Horner's Estate, 5 De G. & 
 
 & Northwestern Ry. Co. 1 1 C. B. 354. Sm. 483 ; In re Stewart, 1 Sm. & Gif. 32 ; 
 
 (a) JUx parte Hawkins, 13 Sim. 569 ; In re Harrop's Est. 9 Drew. 726. 
 GaJliers v. Allen, lb. 577, n. ; Richards v. 
 Att. Gen. 6 Moo. P. C. 381. 
 
 (1) For a form of the order approving of a purchase, and for investment of the 
 money received under the act, see 10 Hare App. 36. 
 
 (2) In quoting this passage in Haynes v. Haynes, 1 Drew. & Sm. 459, it was cor- 
 rectly observed by the learned vice chancellor, that the writer did not mean to lay down 
 the proposition that mere service of a notice to treat would effect conversion. 
 
 ■ [85] 
 
CH. II.] ENTEY BY THE COMPANY : DEPOSIT. 123 
 
 of the property is not changed.(rf) But where, the landowner 
 being in a state of mental incapacity, a railway company took 
 the land, and paid the money under the powers of the 8 Vict. c. 
 18, Lord Cranworth V. C. held that the property was con- 
 verted, and the money was personal estate.(e) This decision 
 is opposed to the spirit of the act, and a liberal interpretation of 
 its provisions would, it should seem, enable the court to deal 
 with the money as real estate. If the company could not legally 
 take the land, there could be no conversion ; but still the real 
 representative adopting the sale might be held entitled to the 
 purchase money. Where the contract merely fixed a price per 
 acre, and was not for any particular portion of the estate, the 
 money paid for land taken after the owner's death was held to 
 be real estate. (/) And in Re Sloper (§■) the lords justices held 
 that the purchase money paid by a railway company for lands 
 belonging to a lunatic was to be treated as realty. But in all 
 these cases a party becoming absolutely entitled to the fund as 
 real estate may, it should seem, elect to take it as money. 
 
 20. A company may enter upon and use the land before 
 any agreement, upon making the deposit and giving the bond 
 required by s. 85 of the 8 Vict., at any time befoire the expira- 
 tion of the time allowed by the compulsory clauses; (A) (1) but 
 they cannot enter on * part without giving security for the 
 who]e,(t) although they may, under s. 85, deal with one party 
 
 {d) Midland Counties R7. Co. v. Oswin, 16 Q. B. 526; Worsley v. South Devon 
 
 1 Col. 74 ; the marg. n. is incorrect ; Rex Ry. Co. lb. 539 ; Fooks v. Wilts, &c. Ry. 
 
 V. Commissioners of London Docks, 12 Co. 5 Hare, 199; Ramsden w. Manchester, 
 
 East, 477. &c. Ry. Co. 5 Rail. Cas. 552 ; Doe v. 
 
 (e) In re Lincolnshire Ry. Act, 1 Sim. Manchester, &c. Ry. Co. 14 M. & W. 687. 
 
 N. S. 360. (i) Barker v. North Staffordshire Ry. 
 
 (/) Ex parte Walker, 1 Drew. 508. Co. 2 De G. & Sm. 55. As to the frame 
 
 ((?) 22 Bear. 198 cited; Cooke v. Dea- of the bond, see Poynder «. Great North- 
 ley, lb. 196. ern Ry. Co. 2 Phil.. 330 ; Willey v. South 
 
 {h) Doe V. North Staffordshire Ry. Co. Eastern Ry. Co. 1 M. & G. 58. 
 
 ( 1 ) Where a company took possession with the consent of a person in possession, to 
 whom they had given notice (and who proved to be tenant for life of half, and lessee 
 of the other half), and afterwards paid for the property, and took a conveyance from a 
 third party, whose title was subsequently denied by the lessee and other parties, who 
 applied to equity for rdief, an order was made for the company to proceed under s. 85, 
 and an inquiry was directed whether the claimants could make a title ; but the posses- 
 sion was not disturbed. Alston v. Eastern Counties Ry. Co. 26 L. T. 51. 
 
 [86] 
 
124 MANDAMUS AGAINST THE COMPANY, ' [CH. H. 
 
 only having an interest.(A;) The deposit will not be repaid by 
 the court under s. 87 without notice to the landowner, although 
 the purchase is completed ; (/) but if the vendor repudiates the 
 contract, the deposit may be repaid to the company.(m) The 
 vendor cannot claim out of the deposit any costs to which he 
 may be entitled.(w) Penalties are imposed for a wilful entry.(o) 
 A landowner may lose his right to be protected in equity against 
 an entry by a company where he has misled them by looking 
 on at their works, to the completion of which possession of his 
 land is essential. (^) 
 
 21. If a company enter before the expiration of the time pre- 
 scribed, they cannot after its expiration be ejected, as their pos- 
 session is still lawful ; but the landowner may still, under s. 68, 
 have the purchase money assessed ; nor can the company be 
 ejected if they enter by consent of the landowner pending a 
 reference for compensation. (5) Where the company gave notice 
 within the time, and took the other proper steps, but did not 
 enter until after the expiration of the time, the entry was held 
 to be only an exercise of a power for carrying the purchase 
 into effect, and that may be exercised without reference as to 
 time.(r) 
 
 22. The legal remedy to eompfel a company to perform its 
 obligations, and to complete its contracts made under the statu- 
 tory powers, is by mandamus ; (s) (1) and the company will be 
 
 (h) S. G. Co. 3 My. & Cra. 784 ; Ffooks v. South 
 
 (/) Ex parte South Wales Ey. Co. ''6 Western Ry. Co. 1 Sm. & Gii'. 142. 
 
 Rail. Cas. 151. (q) Doe v. Leeds, &c. Ry. Co. 16 Q. B. 
 
 (m) In re Fooks, 2 Mac. & G. 351. 796 ; Doe v. North Staffordshire Ry. Co. 
 
 (n) Ex parte Stevens, 2 Phil. 772 ; In re lb. 526 ; Worsley v. South Devon Ry. Co. 
 
 London & Southampton Ry. Co. 16 Sim. lb. 539; Williams v. South Wales Ry. 
 
 165 ; Ex parte Great Northern Ey. Co. Co. 3 De G. & Sra. 354 ; Great Northern 
 
 lb. 169. Ry. Co. v. Lancashire, &c. Ry. Co. 1 Sm. 
 
 (0) S. 89; see Hutchinson v. Manches- & Gif. 81. 
 
 ter, &c. Ry. Co. 15 M. & W. 314; The (r) Marquis of Salisbury ». Great North- 
 Same V. East Lancashire Ry. Co. 3 Rail, ern Ry. Co. 1 7 Q. B. 840. 
 Cas.. 748. (s) Reg. v. Birmingham, &c. Ry. Co. 
 (p) Greenhalgh «. Manchester, &c. Ry. 15 Q. B. 634, 647, n. ; Reg. v. Irish South 
 
 ( 1 ) Permissive power to railway companies to make a railway cannot be deemed 
 compulsory. Reg. u. York & North Midland Ry. Co. 1 E. & B. 178, 858; Reg. u. 
 Lancashire & Yorkshire Ry. Co. lb. 228,873, u. ; 16 Q. B. 907, n.; Anstruther v. 
 East of Fife Ry. Co. 1 Maoq. H. of L. Rep. 98 ; Reg v. Great Western Ry. Co. 1 E. & 
 B. 253, 874 ; Reg. v. Ambersgate, &c. Ry. Co. 1 E. & B. 372. 
 
[CH. 11, ENACTMENTS AS TO COSTS. 125 
 
 compelled to do *all acts necessary to the completion of the 
 contract ; e. g*., to summon a jury and procure an assessment of 
 the price,(^) or to take up an award of the price.(M) But a 
 mandamus will not issue where the time has expired so that 
 the company has not power to perform the works,(a;) or where 
 on other grounds the company is not able lawfully to exercise 
 the compulsory powers.(y) A person claiming adversely to the 
 landowner cannot obtain an injunction against the company to 
 prevent them from keeping possession or interfering with the 
 land.(2r) Where a company having taken land has not com- 
 plied with the requisitions of the act, yet equity will not restrain 
 the company by injunction if justice can be done to the land- 
 owner by securing to him the price to be paid. (a) 
 
 23. Costs are thus provided for : In all cases of moneys de- 
 posited in the bank, except where it Was by reason of the wilful 
 refusal of the party to receive it or to convey the lands, or of the 
 wilful neglect of the party to make out a good title, the court of 
 chancery may order the promoters to pay^ including all reason- 
 able charges and expenses incident thereto, the costs of the pur- 
 chase, or incurred in consequence thereof (not otherwise provided 
 for), and the costs of the investment in government or real securi- 
 ties, and of the reinvestment thereof in the purchase of other 
 lands, and the costs of obtaining orders for those purposes, and 
 of orders for payment of the dividends and interest of the securi- 
 ties, and for payment out of court of the principal or of the 
 securities, and of all proceedings relating thereto,(6) except such 
 
 Eastern By. Co. 1 Ir. C. L. E. 119; Pin- & North Westeni Ky. Co. 16 Q. B. 864; 
 
 chin V. London & Blackwall Ry. Co. 5 Reg. v. York, &c. Ry. Co. 76. 886 ; see 
 
 De G., M. & G. 851 ; Leominster Canal the note, lb. 906. 
 
 Co. V. Shrewsbury, &c. Ry. Co. 3 Jur. (z) "Webster v. South Eastern Ry. Co. 
 
 N. S. 930 ; [Eotherby v. Metrop. Rail- 1 Sim. N. S. 272. 
 
 way Co. L. R. 2 C. P. 188.] (a) Jones v. Great "Western Ry. Co. 1 
 
 (t) Reg. o. Birmingham, &c. Ry. Co. Rail. Cas. 684 ; Attorney General v. East. 
 vM sup. ; In re South Yorkshire, &c. Ry. Counties Ry. Co. 3 Rail. Cas. 337 ; Lang- 
 Co. 14 Jur. 1093. ford v. Brighton, &c. Ry. Co. 4 Rail. 
 
 (m) Reg. V. South Devon Ry. Co. 15 Cas. 69; and see The Queen v. London 
 
 Jur. 464. & North "Western Ry. Co. 3 Q. B. 443, 
 
 (x) Reg. V. London & North "Western and the cases there cited. 
 
 Ry. Co. 1 E. & B. 199, n. (6) Re Ellison's Estate; 1 Jur. N. S. 
 
 (y) Reg. u. Ambersgate, &c..Ey. Co. 1 1155; 2 Jur. N. S. 293; see 8 De G., 
 
 E. & B. 372 ; Reg. v. Great Western Jly. M. & G. 62. 
 Co. 1 E. & B. 253 ; see Reg. v. London 
 
 [87] 
 
126 DECISIONS AS TO CO'STS. [CH. II. 
 
 as are occasioned by litigation between adverse claimants,(c) 
 and the word such refers not to proceedings, but to costs.(c/) 
 Provided that the costs of one application only for reinvest- 
 ment in land are to be allowed, unless it appear to the court for 
 the benefit of the parties interested in the money, that the 
 purchases should be in different sums and at different times, 
 in which * case it is lawful, if the court think fit, to order the 
 costs of any such investments to be paid by the promoters, (e) 
 Where the tenant for life is the petitioner for a reinvestment, 
 the remainder-men and trustees if they approve, should concur 
 in the petition, or not appear.(/) The costs of all convey- 
 ances are to be borne by the promoters, and are to include 
 all charges and expenses incurred, as well by the seller as by 
 the purchaser, of all conveyances of any lands, and of any out- 
 standing terms or interests, (g-) and of deducing, evidencing, 
 and verifying the title, and of making out and furnishing such 
 abstracts and attested copies as the promoters may require, 
 and all other reasonable expenses incident to the investiga- 
 tion, deduction, and verification of such title,(/i) which costs 
 may be submitted to taxation, (t) Even where the money is 
 paid out of court, the costs of application must be included. (y) 
 Where a company is directed to pay costs, the common order 
 contains an exception of such, if any, as are occasioned by liti- 
 gation between adverse claimants, which exception would not 
 be omitted unless under special circumstances.(A;) 
 
 24. Wilful refusal or neglect in the exception means a refusal 
 or neglect from mere will or caprice,(Z) but it is otherwise where 
 the refusal is the exercise of reason, as where the landowner was 
 
 (c) See as to such costs, '^ar^jartc Collins, re Eastern Count. Ey. Co. 2 Jur. N. S. 
 19 L. J. 244 ; Ex parte Palmer, 13 Jur. 1013. 
 
 781 ; Hore v. Smith, 14 Jur. 55 ; Re Long- (/) Wilson v. Foster, 26 Bear. 398. 
 
 worth's Estate, 2 Eq. E. 776 ; 1 K. & J. 1 ; {g) FeofF. Addies' -Charity, 3 Hare, 22. 
 
 In re Spooner's Estate, lb. 220 ; In re (h) S. 83 ; Re Jones's Settled Est. 4 Jur. 
 
 Hungerford, lb. 413 ; Re Mid-Kent Ey. 1 N, S. 887, as to costs of conveyancing 
 
 John. 387 ; In re Cant's Est. 4 De G. & counsel. 
 
 J. 593; 1 De G., E. & J. 153; Re Hat- (i) S. 83. 
 
 field's Est. 29 Beav. 370. (j) Toft's Estate, 26 L. T. 290. 
 
 (d) Re Cant's Est. 1 JDe G., E. & J. 153. (h) Re Cant's Est. 1 De G., E, & J. 153. 
 
 (e) 8 Vict. c. 18, s. 80; see Ex parte (I) £x.;)arte BradShaw, 16 Sim. 174; /« 
 Great Northern Ky. Co. 16 Sim. 169. It re Windsor, &c. Railway Act, 12 Beav. 
 extends to costs of serving'mortgagees ; In 522 ; see Elliott v. Turner, 13 Sim. 477. 
 
 [88] 
 
CH. II.] DECISIONS AS TO COSTS. 127 
 
 advised that the company were not entitled to take his land,(OT) 
 or where the neglect arises from necessity, e. g., in consequence 
 of judgment debts of larger amount than the purchase money.(w) 
 The costs of making out a title include costs of a petition and 
 reference in a suit to ascertain the propriety of the sale,(o) or of 
 a reference in lunacy,(/») but not of abortive references,(5) nor 
 more than one set of costs, although there are mortgagees ; (r) 
 but the costs of two petitions by co-heirs, where properly served, 
 will be incliided.(s) The costs of investment include broker's 
 commission. (*) If the owner present a petition that the money 
 may be paid to an incumbrancer, and he serve the petition on 
 the incumbrancer, the costs of the latter will * fall on the peti- 
 tioner.(M) A railway company was compelled to pay the costs 
 of a petition to pay the price of glebe land for the building 
 of a parsonage, and the costs of paying out the money, but 
 not the costs of the governors of Queen Anne's Bounty.(v) 
 Where there is an administration suit, and a company take 
 the lands, they must pay the costs rendered necessary by the 
 existence of the suit.(a;) The costs of reinvesting in other lands 
 includes the enfranchisement of copyholds {y) settled to the same 
 uses ; and the redemption of land tax is deemed a reinvest- 
 ment ; (2) but the costs of altering buildings on other parts of 
 the estate, or other collateral matters, are not payable by the 
 company. (a) But although the uses have been varied before the 
 reinvestment, yet the company must bear the costs of it ; there- 
 fore, where a testator devised all his real estates in strict settle- 
 
 (m) Ex parte Dashwood, 3 Jur. N. S. (u) In re Hadfield's Estate, 7 Jur. N. S. 
 
 103. 383. 
 
 (n) Crystal Palace Ey. Co. o. Divers, 1 {v) Re Incumbent of Whitfield, 1 J. & 
 
 Jur. N. S. 995. H. 610. 
 
 (0) Picard v. Mitchell, 12 Beav. 486. (x) Haynes v. Barton, 1 Drew. & Sm. 
 
 (p) In re Taylor, 1 Mac. & G. 210 ; In 483; Henniker v. Chafy, 28 Beav. 621. 
 
 re Walker, 15 Jur. 161. (y) In re Cheshunt College, 1 Jur.N. S. 
 
 (q) Ex parte Stevens, 15 Jur. 243. 995; Dixon v. Jackson, 27 L. T. 53, as to 
 
 (r) In re Webstfer, 2 Sm. & Gif. App. 6 ; costs of admission where money is invested 
 
 see In re Naish, 1 Jur. N. S. 1082. in copyholds ; In re East Count. Ry. Co. 
 
 (s) in re Spooner's Estate, 1 K. & J. 27 L. J. N. S. 755. 
 
 220. (z) Inre London & Brighton Ey. Co. 
 
 (t) In re Trinity House, 3 Hare, 95; 18 Beav. 608; Sc ;)arte Beddoes, 2 Sm. & 
 
 In re Braithwaite's Trust, 17 Jur. 753 ; Gif. 466. 
 
 sea Ex parte Harborough, 23 L. J. 260. , (a) In re Bucks, &c. Ey. Co. 14 Jur. 
 
 1065. 
 
 [89] 
 
128 DECISIONS AS TO COSTS. [CH. II. 
 
 ment, which estates included a reversion in fee which fell into 
 possession, and afterwards a railway company purchased a por- 
 tion of the property, and then the testator died, the company 
 were compelled to pay the costs of the reinvestment of the pur- 
 chase in another estate to be settled to the former uses ; but the 
 court did not decide whether an owner in fee can come to have 
 a reinvestment in land at the expense of the company.(6) And 
 even the costs of purchases properly made for reinvestment, but 
 subsequently on account of difficulties of title abandoned, were 
 fixed on the company, and also the costs of a disentailing deed 
 of the lands to entitle the parties to receive the money which 
 was liable to be invested.(c) An equity of redemption cannot 
 be purchased ; (d) nor can leaseholds, or perhaps copyholds, with 
 the purchase money of freeholds ; (e) but the purchase of bene- 
 ficial leases in other lands settled to the same uses would be al- 
 lowed, treating them as an incumbrance ; but the costs of the 
 investment would not be thrown on the company. (/) The price 
 of leaseholds for years may,- however, be invested in copyholds 
 of inheritance.(g-) Before a reinvestment, the title, of course, 
 must *be approved. (1) Costs of reinvestment do not in similar 
 cases include the costs of the payment of the dividends.(A) 
 The company must pay the costs of a petition for a temporary 
 investment in the funds, although a contract for land has been 
 entered into.(j) The costs of repeated investments are allowed 
 to the sellers,(A;) but where the proposed investment is not ap- 
 
 (6) ^In re De Beauvoir's Trusts, 2 De G., (g) In re Liverpool Dock Acts, 1 Sim. 
 
 F. & J. 5; consider the argument on the N. S. 202. 
 
 words, or other lands " settled therewith." (Ti) Ex parte Althorp, 3 Yo. & Col. 396 ; 
 
 (c) In re Korth Stafford. Ky. 7 Jur. N. Mitchell v. Newell, 3 Kail. Cas. 515. 
 
 S. 753 ; 3 Giff. 224. (j) /„ re Liverpool, &c. Ry. Co. 1 7 Beav. 
 
 (d) Ex parte Craven, 17 L. J. N. S. 392; 7n re London & North Western Ry. 
 215. Co. 1 Jur. N. S. 227. 
 
 (c) In re Lancaster & York Ey. Co. 23 (k) Ex parte Eton College, 3 Rail. Cas. 
 
 L. J. 815. ' 271; and cases lb. 513, 514; Ex parte 
 
 (/) Ex parte Lord Hardwicke, 17 L. J. Bouverie, 4 Rail. Cas. 229 ; Jones v. Lewis, 
 
 422; In re Manchester, &c. Ry. Co. 21 2 Mac. & G. 163; Ex parte Bishop of 
 
 Beav. 162. Durham, 3 Yo. & Col. 690 ; In re Stra- 
 
 (1 ) For the practice as to the execution of a deed of conveyance, see In re Caddick's 
 Settlement, 9 Hare App. 9 ; Ex parte Rector of South Collingham, lb. 12. As to an 
 allotment of part of the money to a tenant for life, &e. as compensation, see s. 73, 78, 
 8 Vict. c. 18. ' 
 
 [90] 
 
CH. II.J DECISIONS AS TO COSTS. 129 
 
 proved of, the petitioner will have no costs, and the company 
 will be paid their costs out of the fund in court ; (I) and if 
 more money be laid out, the costs occasioned by the excess 
 will not be thrown on the company.(j») Costs of a second 
 petitioner occasioned by the purchase of an estate sold by the 
 court must be borne by the company ; (n) but not the costs 
 of a negotiation for a purchase which went off, or of a double 
 investigation of title ; (o) nor can tenant in tail, becoming, en- 
 titled to the money,(p) throw on the company his costs of the 
 petition, &c., for obtaining the money out of court,(g') for the 
 costs of an absolute transfer are not payable by the company, (r) 
 But where successive incumbents of a living are entitled to the 
 interest of stock, the produce of land sold, the company must 
 pay the costs of enabling every new incumbent to receive the 
 dividends.(s) If a petition is rendered necessary by the negli- 
 gence of both parties in not providing for the case by a prior 
 order, each will be left to pay his own costs. (<) Under sections 
 34 and 78, the court may, at its discretion, order the costs of an 
 arbitration of a tenant for life to be paid out of the purchase 
 money, although he refused, a larger sum than was awarded.(M) 
 Where the matter has been referred to arbitration, the costs 
 may be ascertained * subsequently to the award. (a;) In the case 
 of a charity estate, the petition for reinvesting the money does 
 not require the leave of the charity commissioners under 16 
 & 17 Vict. c. 137.(2/) Where two distinct railway companies 
 
 Chan's Estate, 9 Hare, 185; Trustees of Beav. 239. In re Brooking, 2 Giff. 31; 
 
 St. Bartholomew's Hosp. 4 Drew. 425. the costs of a disentailing deed by a land- 
 
 (Z) lie Hardy's Estate, 2 Eq. R. 634. owner, to enable him to get the money out 
 
 (m) Ex parte Hodge, 16 Sim. 159; Ex of court, were held to he costs in couse- 
 
 parte Newton,, 4 Yo. & Col. 518; In re quence of the purchase; and see In re 
 
 Braumer's Estate, 14 Jur. 236 ; see Ex North Stafford By. Co. 3 Giff. 224. 
 
 parte Lord Palmerston, 4 Hail. Cas. 57, n. ; (s) In re Birkenhead, &c. Ey. Co. 2 
 
 Ex parte Tetley, lb. 55. Jur. N. S. 793 ; 8 De G., M. & G. 380. 
 
 (n) Carpmeal v. Profitt, 17 Jur. 875. (*) Ex parte Governors of Oakham, £c. 
 
 (0) In re "WooUey's Trust, 1 Eq. R. 160. Schools, 23 L. T. 251. 
 
 {p) See In re Great Southern, &c. Ry. (m) In re Aubrey's Estate, 17 Jur. 874. 
 
 Co. 9 Ir. E. R. 482. {x) Gould v. Stafford Ry. Co. 5 Ex. 
 
 (?) Ex parte Thoroton, 12 Jur. 130; 214.- 
 
 Ex parte Molineux, 2 Col. 273. {</) In re Brighton & South Coast Ry. 
 
 (r) In re Land's Trust, 4 K. & J. 81 ; Act, 23 L. T. 36 ; In re Lister's Hospital, 
 
 In re Robertson, 23 Beav. 433, contra, not 6 De G., M. & G. 184. 
 followed ; In re Tiverton Market Act, 26 
 
 VOL. i. 9 [91] 
 
130 _ EXPENSE OF CONVEYANCE. [CH. II. 
 
 separately bought charity lands from the same trustees, the costs 
 of the joint proceedings for a reinvestment were held to be pay- 
 able by the companies equally without reference to the amount 
 of the purchase moneys.(2) 
 
 25. Where, in an act passed before the general acts already 
 referred to, the expenses of conveyances were to be borne by the 
 company, they were held not to be liable to the costs of a suit 
 to ojjtain a conveyance from the infant heir of the seller who 
 had died intestate after the eontract,(a) for he ought to have de- 
 vised the land so as to render such a suit unnecessary. This 
 was followed in a case since the passing of the general acts, 
 where, at the time of the contract, the property was devised in 
 strict settlement by the seller's will ; and the devise having taken 
 effect before the conveyance, it was held that the devisees were 
 to pay the costs of the suit rendered necessary by the devise out 
 of the purchase money, the company paying the costs of the 
 conveyance and of making out the title.(6) And in another, case 
 since the general acts, where at the time of the contract for a 
 copyhold, the legal estate was in an infant as a trustee for the 
 seller, the costs of proceedings to obtain a conveyance from the 
 infant were held not to be costs thrown on the company by the 
 eighty-second section. (c) Yet in a case where the seller had de- 
 vised the estate in strict settlement before the contract, and then 
 died, and an infant devisee became entitled at law, the company 
 appear to have been ordered to pay all the costs of the infant 
 devisee, occasioned by the devise, except the costs of adverse 
 litigation. (rf) Where a contract was made for 'reinvestment of 
 purchase money, and the vendor died, leaving an infant heir, and 
 a bill was rendered necessary against the heir, this was deemed 
 an adverse litigation, to the costs of which the company were not 
 liable, but they had to pay the costs of a second petition, ren- 
 
 (z) London & Brigh. Ry. Co. a. Shrops. (c) Re South Wales Ry. Co. 14 Bear. 
 
 Union Ry. Co. 23 Beav. 605; see Ex parte 418. 
 Bishop of London, 2 De G., F. & J. 5. {d) In re Manchester & Southport Ry, 
 
 (a) Midland Counties Ry. Co. v. Westr Co. 19 Beav. 365 ; see the general terms 
 
 comb, 11 Sim. 57; see 2 Yo. & Col. C. C. of the order; see Midland Ry. Co. v. 
 
 328. Rice, 2 Eq. R. 1109, where the heir had 
 
 (6) Eastern Counties Ry. Co. i/. Tuff- his costs out of the purchase money up to 
 
 nell, 3 Rail, Ca. 133. the hearing. 
 
CH. II.] COSTS : INTEREST. 131 
 
 dered necessary by the event.(e) Upon a contract for sale be- 
 tween individuals, where there has been no default on either side, 
 the death of "the vendor recently after the sale, although it render 
 a suit necessary, would not throw the costs on *his estate, but 
 each party will have to bear his own costs.(/) If, however, he 
 place the estate in strict settlement after his contract, by which 
 a suit is rendered necessary, his estate must pay the costs of the 
 suit.(g-) 
 
 26. The person in possession is primd facie entitled to the 
 purchase money.(A) The tenant for life, if in possession at the 
 time of the sale, although he has created mortgages, need not 
 serve his mortgagees with notice of his petition to receive the 
 dividends.(t) Where a man was tenant in tail of land taken by 
 a railway company, he was paid the produce out of court, with- 
 out being required to execute a disentailing deed.(A;) 
 
 27. Where a company enter upon lands for making spoil 
 banks or side cuttings, or for obtaining, materials, the owners 
 may, during such possession, and. before accepting compensation, 
 compel the company to purphase the land, and the purchase 
 money should be ascertained and applied according to the direc- 
 tions of the lands clauses consolidation act.(/) 
 
 28. If the company, in dealing with a landowner, abandon 
 the course pointed out by the lands clauses consolidation act, 
 they may render themselves liable to the payment of interest on 
 the purchase money. (m) Where the seller, after the contract 
 gave the company possession upon condition that the purchase 
 money was paid into his banker's in the joint names of himself 
 and the chairman, and the company was to pay interest until 
 the time of completion, a loss by the failure of the banker's was 
 held to fall on the seller.(w) 
 
 (e) Armitage v. Askham ; Ee London (k) In re South East. Ey. Co. 30 L. J. 
 
 & North Western Ry. Co. 1 Jur. N. S. N. S. 602. 
 
 227. (I) 8 Vict. c. 20, s. 42, 44. 
 
 (/) Hanson v. Lake, 2 Yo. & Col. C. C. (m) Blount v. Great Southern & West- 
 
 328; Hinder v. Streeten, 10 Hare, 18; ern Ry. Co. 2 Ir. C. R. 40; see Lewis v. 
 
 Hawkins v. Perry, 25 L. J. N. S. 656. South Wales Ry. Co. 10 Hare, 113. 
 
 (g) Wortham v. Ld. Dacre, 2 K. & J. (n) Sir H. St. Paul v. Birmingham, &c. 
 
 437 ; Purser v. Darby, 4 K. & J. 41. Ry. Co. 17 Jur. 1176 ; Lord Ward v. 0.x- 
 
 (A) Re Alsop's Estate, 28 L. T. 337. ford Ry. Co. 2 De G., M. & G. 750. 
 
 (i) In re Hungerford's Trust, 3 K. & J. 
 455. 
 
 [92] 
 
132 CONDITIONS: INJUNCTIONS. [CH. II. 
 
 29. A purchaser from a railway company of land under which 
 a tunnel ran, subject to a condition that he was not to erect any 
 new buildings, &c., but according to a specification approved in 
 writing by the principal engineer, was enjoined, on the ground 
 of the public safety, from proceeding with buildings which the 
 resident engineer had verbally told him he might proceed with 
 after he had sent in a specification, but which had not been sub- 
 mitted to the principal engineer.(o) A purchaser irom a railway 
 company, therefore, should strictly comply with any condition 
 imposed upon him. 
 
 (o) Attorney General v. Briggs, I Jur. N. S. 1084. 
 
* CHAPTER III. 
 
 >F SALES UNDER THE AUTHORITY OF THE COURTS OF EQUITY.(l) 
 
 SECTION I. 
 
 )F THE PK0CEEDING3 FROM THE ADVERTISEMENTS TO THE CONVEYANCE. 
 
 Power to sell in suits. 
 
 Power to sell in foreclosure suits. 
 
 Sale under direction of judge. 
 
 Title to be first examined. 
 
 Charges for abstracts; conditions; an- 
 swering queries. 
 
 Opinion of conveyancing counsel. 
 
 Verification of conveyance. 
 
 Amount of deposit. 
 
 Reserved bidding. 
 
 Advertisements. 
 
 Direction for sale, how carried out. 
 
 Particulars of sale. 
 
 Compensation for misrepresentation. 
 
 Appointment of auctioneer. 
 
 Mortgagee not to conduct sale. 
 
 How sale conducted. 
 
 Best bidder. 
 
 Deposit. 
 
 Fraud by puffing. 
 
 Verbal declarations by auctioneer. 
 
 Substitution of another as purchaser. 
 
 Resale at a profit. 
 
 Proceedings after sale. 
 
 Contract not complete till confirmation. 
 How report is confirmed. 
 
 Loss by fire, &c., in the interim. 
 
 Proceedings where purchaser holds back. 
 
 Bidding by insane person void. 
 
 Proceedings at chambers. 
 
 Payment of purchase money and posses- 
 sion. 
 
 31. Incumbrances, how paid off. 
 
 33. Possession from previous quarter day. 
 
 35. Mortgagee's right when purchaser. 
 
 37. Purchaser's right to life annuity. 
 
 38. And to a life interest. 
 
 39. Purchase of reversion fallen in. 
 
 40. Purchaser's right to a coUiery. 
 
 41. Court alone gives possession. 
 
 42. Preparation, &c., of conveyance. 
 
 43. Objections to title. 
 
 44. Equitable title. 
 
 45. Purchaser cannot bring an action. 
 
 46. Costs to purchaser where title bad. 
 
 47. Who is to pay them. 
 
 48. Costs of reference of title. 
 
 50. Delay in making out title. 
 
 51. Death of purchaser before conveyance. 
 
 52. Bights of incumbrancers. 
 
 53. Sale contrary to order void. 
 
 55. Sale not within statute of frauds. 
 
 57. Purchaser restrained from was-te. 
 
 58. Indemnity against rent and covenants. 
 
 59. Conveyance by incompetent, &c., per- 
 
 sons. , 
 
 60. Improvements before sale confirmed. 
 63. Decree a security to purchaser. 
 
 65. Judgment creditors affected. 
 
 66. Improper payments to tenants for life. 
 
 67. Lord Bandon v. Becher. 
 
 68. Vans Agnew v. Stewart. 
 
 1. Where it shall appear necessary or expedient, the court 
 nay direct the real estate, to which the suit relates, or any part 
 
 I ) For the practice in Ireland up to that time, see Purch. (11th edit.) eh. 2, s. 2, p. 78. 
 
 [93] 
 
134 FOEECLOSURE SUITS. [CH. III. § I. 
 
 thereof, to be sold for the purposes of the suit at any time after 
 its institution, * and any party to the suit in possession of such 
 estate, or in receipt of the rents, is to be compelled to give up 
 such possession or receipt to the purchaser, or such other person 
 as the court shall direct,(a) which only means that a sale may 
 be directed at once, where before it could only be done at the 
 hearing, and does not alter the legal rights of any parties. (i) 
 
 2. And the court in any foreclosure suit is authorized, upon 
 the request of the mortgagee or of any subsequent incumbrancer, 
 or of the mortgagor, or any person claiming under them respec- 
 tively, to direct a sale on such terms as the court may think fit, 
 and if it think fit without determining priorities, but the consent 
 of the mortgagee or a deposit is required, where another party 
 makes the request, for securing the performance of such terms as 
 the court may impose on such party.(c) 
 
 3. And by the general orders under the 15 & 16 Vict. c. 80, 
 where an order is made directing a property to be sold, unless 
 otherwise ordered, the same is to be sold, with the approbation 
 of the judge to whose court the cause or matter is attached, to 
 the best purchaser to be allowed by such judge, and all proper 
 parties are to join therein as such judge shall direct.(/Z) 
 
 4. Before any estate or interest is put up for sale under the 
 order of the court, an abstract of title is with the approbation of 
 the court to be laid before some conveyancing council for his 
 opinion, to the intent that the court may be the b&tter enabled 
 to give such directions as may be necessary respecting the con- 
 
 ■ ditions of sale (which are drawn by the counsel), and where an 
 estate or interest is put up for sale, a time for the delivery of the 
 abstract to the purchaser or his solicitor is to be specified in the 
 conditions of sale,(e) but still a discretion rests in the court not 
 
 (a) 15 & 16 Vict. c. 86, s. 55. 372 ; Messer i'. Boyle, 21 Beav. 559; Hut- 
 
 (6) Mandeno v. Mandeno, 1 Kay App. ton v. Sealey, 4 Jur. N. S. 450. As to 
 
 2; Prince!). Cooper, 16 Beav. 546. loss by investment in stock during suit, 
 
 (c) 15 & 16 Vict. c. 86, s. 48 ; Boydell see Bridger v. Wickena, 26 L. T. 163. 
 
 V. Manby, 9 Hare App. 53, and the cases in (d) Orders, 16 Oct. 1852, No. 12. See 
 
 the note ; Girdlestone «. Lavender, 76. 53 ; General • Orders, 22 April 1850, as to 
 
 Mears v. Best, 10 Hare App. 51 ; Campbell claims. No. 17. 
 
 ». Moxhay, 18 Jur. 641 ; Laslett w. Cliffe, (e) Sec. 56. The conveyancing counsel 
 
 2 Sm. & Gif. 278 ; Wickham v. Nicholson, are now appointed under 15 & 16 Vict. i;. 
 
 19 Beav. 38 ; Hurst v. Hurst, 16 Beav. 80, s. 40, 43. 
 
 [94J 
 
CH. III. § I.] CONVEYANCING COUNSEL. 135 
 
 to send the abstract to counsel where it is unnecessary to do 
 
 5. ^here the abstract was returned by the counsel of the 
 seller with queries on some of the sheete, which it was not ad- 
 visable to show to purchasers, the solicitor was only allowed 
 to charge for recopying those sheets, and was not allowed for 
 another copy of the abstract. And as the solicitor charges for 
 drawing the conditions of sale, although they are now drawn 
 by the counsel, he was not allowed * to charge for answering the 
 queries of the counsel. There may of course be exceptions to 
 these rules.(g-) 
 
 6. The court or any judge in chambers has now power to re- 
 ceive and act upon the opinion of conveyancing counsel, in cases 
 where according to the old practice it had been usual for the 
 master to require or receive the opinion of such counsel for his 
 aid in the investigation of the title to an estate, with a view to 
 an investment of money in the purchase or on mortgage thereof, 
 or with a view to a sale thereof, or in the settlement of a draft of 
 a conveyance, mortgage, settlement, or other instrument, (A) (1) 
 or otherwise, and in such other cases as the lord chancellor 
 should by any general order direct; but it is competent for any 
 party to object to the opinion of any such counsel, and there- 
 upon the point in dispute is to be disposed of by the court or by 
 the judge in chambers, according to the nature of the case. The 
 counsel were to be appointed by the lord chancellor, and that 
 power has been exercised.(i) 
 
 7.. Where the conveyance of land to be paid for out of funds 
 in court has been settled by counsel after the approval of the 
 title, and has been engrossed, it must be produced to the judge 
 and verified by affidavit, with a blank for the insertion of the re- 
 cital of the order of court for the payment of the purchase money, 
 and an order will be made that upon the completion and execu- 
 
 (/) Gibson v. Woollard, 24 L. T. 137. (i) 15 & 16 Vict. c. 80, s. 40, 41, 43. 
 
 Ig) Eurasey v. Kumsey, 21 Beav. 40. General Orders, 16 Dec. 1852, 24 Dec. 
 
 (A) Blaxland v. Blaxland, 9 Hare App. 1852. 
 68. 
 
 (1) In this case the judge held, that it was in the case of the reinvestment of money 
 in land that the deeds were settled by conveyancing counsel. The deed of an appoint- 
 ment, &c. of new trustees, he said, would be approved by the judge of the branch of 
 the court to which the cause was attached. 
 
 [95] 
 
136 RESERVED BIDDING. [CH. III. § I. 
 
 tion of the conveyance, to be also verified by affidavit, the pur- 
 chase money shall be paid.(j) 
 
 8. The third of the general orders of 16 July, 1851, which 
 are yet followed in the judges' chambers, authorized the master, 
 whose power is now vested in the judge, to fix the amount of 
 the deposit, and to appoint a person to receive it, who if required 
 is to give security, and he is to pay the deposit within the time 
 appointed by the master, in like manner as the produce of the 
 sale is to be paid. And by the fourth of such orders, the mas- 
 ter was to be at liberty, before or after the property should have 
 been put up by public auction, to receive proposals for the sale 
 by private contract, and to * report thereon to the court, which 
 report was to be submitted to the court for confirmation, in the 
 same manner as reports made upon special references as to sales 
 by private contract. (&) 
 
 9. By a general order of 16 July, 1851, No,. 2, which is still 
 followed,' the master was to be at liberty to fix a reserved bid- 
 ding to be made one of the conditions of sale, for which pur- 
 pose the parties were to carry in proposals. And the master was 
 to use his discretion as to communicating such reserved bidding 
 to the parties, or any of thera, or their solicitors. And the master 
 was authorized before the sale to put under a sealed cover, to be 
 delivered to the person appointed to sell, the sum at which he re- 
 serves the bidding for each lot, and unless there is a higher bid- 
 ding the lot shall be declared not to be sold. The power given 
 to the master now devolves on the judge and his chief clerk. 
 •And now by a general order of 6 August, 1857, rule 13, affi- 
 davits for the purpose of enabling the judge to fix reserved 
 bids, are to state the value of the property, by reference to an 
 exhibit containing such value, so that the value may not be dis- 
 closed by the affidavit when filed. The auctioneer of course as 
 a general rule is not to disclose the reserved bidding, yet it is 
 said by authority that it is notorious that the reserved bidding is 
 
 (j) In re Caddick's Settlement, 9 Hare (fc) See Pimm v. Insall, 10 Hare App. 
 App. 85.(1) ' 11.74. 
 
 (1) For a form of the order approving of a purchase and the inquiry as to title, and 
 the settlement of the conveyance and payment of the money, see 10 Hare, 36. The con- 
 veyance is to be sent to chambers, and from chambers it goes to the conveyancing 
 counsel. In re Bennett's Estate, 18 Jur. 33. 
 
 [96] 
 
CH. III. § I.] PROCEEDINGS BEFORE SALE. ADVERTISEMENTS. 137 
 
 always known, and that it is the constant practice for persons to 
 take the property at the reserved bidding, although there may be 
 some contest between them. And where upon a sale by auction 
 by authority of the court, lot 1 was knocked down as unsold, 
 and the purchaser of lot 2, who had bid for lot 1, at the conclu- 
 sion of the sale, having in the mean time been informed by the 
 auctioneer's clerk of the reserved price of lot 1, agreed to buy 
 it at that sum, and signed the usual paper for both lots as sold 
 to him by auction; he was held to his bargain, although it was 
 insisted that the auctioneer's authority had ceased before the sale 
 of lot 1, and that he ought not to have disclosed the reserved 
 bidding,(^) which the written directions stated was not to be 
 divulged to any person either at or at any time after the 'sale. 
 The court observed that it was very usual that the reserved bid- 
 ding is known, and it is the constant practice for persons to take 
 it at the reserved bidding.(^^) 
 
 10. The 15 & 16 Vict. c. 80, s. 30, authorizes each chief clerk 
 to issue advertisements, and the general orders of 16 October, 
 1852, Nos. 33 and 34, direct that where advertisements are re- 
 quired, a peremptory and only one is to be issued, unless for any 
 special reason it may be thought necessary to issue a second or 
 further advertisements, and any advertisement may be repeated 
 as many times and in such papers as may be directed. The ad- 
 vertisements are to be prepared by the solicitor, and approved 
 of and signed by *the chief clerk, and his signature is an au- 
 thority for their insertion in the Gazette.(P) 
 
 11. These are the general powers given to the court and to 
 the chief clerk. They are thus acted upon where the decree 
 directs a sale, or the court is authorized to sell.(l) Under the 
 
 (I) Else V. Barnard, 28 Beav. 228 ; advertisement by himself, or printed, or 
 
 [Bonsfield v. Hodges, 33 Beav. 90.] signed by another, is immaterial. Coxe 
 
 (P) [See 2 Dan. Ch. Pr. (4th Am. ed.) u. Halsted, 1 Green Ch. 311. The report 
 
 1268, 1269.] on the record should show that an adver- 
 
 (P) [It is not necessary that advertise- tisement was made, in a case where the 
 ments of the sale of real estate by a sheriff sale is ordered to be made after advertis- 
 er master in chancery should be signed by ing. Clark v. Bell, 4 Dana, 15. See 2 
 the officer with his osvu proper signature; Dan. Ch. Pr. (4th Am. ed.) 1269, 1270.] 
 whether the officer's name is signed to the , 
 
 (1) For an accurate statement of the practice under the new system, I am indebted 
 to Mr. Hall and Mr. Peake, the chief clerks of Vice Chancellor Stuart ; I have em- 
 bodied it in the text. 
 
 [97] 
 
138 PROCEEDINGS BEFORE SALE. PARTICULARS. [CH. III. § I. 
 
 seventeenth of the general orders of October, 1852, a certified copy 
 of the decree is left at the judges' chambers, and a summons to 
 proceed on the order is taken out under the first and third of the 
 same general orders. The conduct of the sale is given as be- 
 fore to one of the parties in the suit, usually to the party having 
 the conduct of the suit. He is directed to bring in an abstract 
 of title, and a draft of the particulars and conditions of sale at 
 a day fixed, to which the proceedings under the summons is ad- 
 journed. Proper directions are given to enable the party to make 
 or procure the abstract in time, where the title deeds are in the 
 possession of trustees or of any of the defendants. At the time 
 appointed, or to which it may have been adjourned, the abstract, 
 with the particulars and conditions of sale, including those 
 agreed upon and settled by all the chief clerks, are brought in 
 before the chief clerk, and they are forwarded through the solic- 
 itor of the party to the conveyancing counsel, according to the 
 rota kept by order by the senior clerks in the registrar's office. 
 The matter is then adjourned generally, with liberty for the par- 
 ties to apply for an appointment when ready. The requisitions 
 of the counsel are attended to by the solicitor of the -party just 
 as in sales out of court. At this period, where the property is 
 large, or other circumstances render it desirable, a general adver- 
 tisement of the intended sale is issued. When the counsel has 
 finally advised on the title, and settled the conditions, they are 
 returned to the chambers by the solicitor, at an appointment pre- 
 viously obtained, and the particulars and conditions are then 
 finally settled. And now by the 14th rule of the orders of August, 
 1857, as soon as particulars and conditions of sale settled at 
 chambers have been printed, two prints thereof certified by the 
 solicitor to be correct prints of the particulars and conditions set- 
 tled at the judges' chambers are to be left at chambers. 
 
 12. The particulars should, as in the case of private sales, 
 correctly state the rental and nature of tenure, &cc.{l^) If the 
 
 {P) [See 2 Dan. Ch. Pr. (4th Am. ed.) But no particulars should be added to the 
 
 1269. The advertisement should give such description of the property, v?hich may 
 
 a description of the property as to indicate unduly enhance the value thereof, or mis- 
 
 and identify it. Kauffman v. Walker, 9 lead the purchaser. Veeder v. Fonda, 3 
 
 Md. 229 ; Merwin v. Smith, 1 Green Ch. Paige, 97, 490 ; see Post v. Leet, 8 Paige, 
 
 182 ; Den v. Tellers, 2 Halst. (N. J.) 154 ; 337 ; Seaman v. Hicks, 8 Paige, 656.] 
 Hodgdon v. Farrell, 4 C. E. Green, 88. 
 
CH. III. § I.] 
 
 PARTICULARS AND CONDITIONS. 
 
 139 
 
 property be described as held by tenants under written agree- 
 ments, and the holdings are by parol, the purchaser will be al- 
 lowed to retire from the contract.(OT) And the particulars of 
 coarse should contain proper provisions as to the expense of cov- 
 enants to produce deeds, and of attested copies, as to which sub- 
 jects it seems to have been supposed *that the general rules upon 
 private sales do not apply to sales by the court.(w) 
 
 13. If the rents of the estate are incorrectly represented to 
 the purchaser's disadvantage, he will be entitled to compensa- 
 tion ; but if he object to the statement upon a sale, and there is 
 a resale under the same representation, and instead of pointing 
 out the error he again purchases, he cannot claim compensa- 
 tion. (o) 
 
 14. To resume : When the particulars and conditions are 
 finally settled, the time and place of sale are fixed, (o^) and a day 
 
 (m) Bessonet v. Robins, 1 Sau. & Scu. 
 142, et vide sup. 
 
 (n) Strong v. Strong, 4 Jur. N. S. 943 ; 
 infra, ch. 11, s. 6. 
 
 (o) Campbell v. Hay, 2 Mol. 102. 
 
 (oi) [See 2 Dan. Ch. Pr. (4th Am. ed.) 
 1267, 1268. A reasonable notice in the 
 sale under a decree of chancery is all that 
 can be required, and such ^ sale may be or- 
 dered in the discretion of the chancellor, 
 for cash or credit. Darrington v. Borland, 
 3 Porter, 12. See Penn v. ToUeson, 20 
 Ark. 652 ; Cummins u. Little, 1 C. E. 
 Green, 48. Where the sale is advertised 
 for a specified day, between the hours of 
 " twelve and five o'clock in the afternoon," 
 and the property is sold in pursuance of 
 such advertisement, the sale will not be 
 set aside, although there is a propriety 
 and convenience in specifying a particular 
 hour between twelve and five o'clock for 
 the sale. Coxe v. Halsted, 1 Green Ch. 
 311. A sale on the land under a decree 
 ordering it to be made there is entirely 
 proper. Mitchell v. Berry, 1 Met. (Ky.) 
 602. If the sale is adVertised to he on the 
 premises, and the estate is actually sold 
 within eighty yards of the dwelling-house 
 and within view, it will not be set aside, 
 although in fact it was not on the prem- 
 
 ises, but fifteen or twenty yards from the 
 boundary line ; the sale otherwise being 
 regular and no fraud appearing. Fergu- 
 son V. Franklin, 6 Munf. 305. See Mon- 
 tague V. Dawes, 14 Allen, 374. Where 
 land is sold without being advertised for 
 sale for the time or in the manner pre- 
 scribed in the order, the sale is invalid and 
 will be set aside. Baily o. Baily, 9 Rich. 
 Eq. (S. C.) 392 ; Vanbussum v. Maloney, 
 2 Met. (Ky.) 602; Glenn v. Wotten, 3 
 Md. Ch. 514; Williams v. Woodruff, 1 
 Duvall (Ky.), 257. So where the person 
 authorized to sell abuses the discretion 
 vested in him in regard to notices of the 
 time and place of sale, equity will relieve. 
 Montague v. Dawes, 14 Allen, 374; Cum- 
 mins 0. Little, 1 C. E. Green, 48. The 
 true test of the propriety of. the action of 
 the person authorized to make the sale, in 
 setting up the notices is this : Did he set 
 them up as a discreet man, desirous of ef- 
 fecting a sale of his property to the best 
 advantage would have set them up ? Cum- 
 nains V. Little, 1 C. E. Green, 48. This 
 last case contains many valuable sugges- 
 tions in regard to the duties of ofiicers in 
 giving notices of sales. A mere error of 
 judgment, or mistaken exercise of discre 
 tion, by the oflicer, in the absence of fraud 
 
 [98] 
 
140 HOW SALE CONDUCTED. [CH. III. § I. 
 
 appointed for the approval of the certificate, delivery of the ab- 
 stract, and of objections to the title, and the like. The auction- 
 eer is approved of upon evidence of fitness, and his remunera- 
 tion is fixed,(;?) for estates are not sold before the chief clerk as 
 they used to be before the master, but in the general way by auc- 
 tion. The sale may be in the country, if the judge shall think 
 fit.(9) The advertisement for sale is also settled and issued, and, 
 where deemed necessary, a survey and valuation is directed, with 
 a view to fixing the reserve bidding, which the court never does 
 without great caution.(r) For this object, and, if necessary, for 
 finally settling the particulars, a day is appointed. Where de- 
 posits are to be paid, the auctioneer is required to enter into a 
 recognizance, with two sureties, to duly account for the amount, 
 which is prepared by the solicitor, and is settled in chambers, 
 and then taken and enrolled in the same manner as a receiver's 
 recognizance. At the time appointed, the reserve bidding is 
 fixed, and is sent under seal, through the solicitor, to the auc- 
 tioneer, together with the printed instructions as to the sale, and 
 bidding papers, with a form of affidavit to be made as to the re- 
 sult of the sale. The matter is then adjourned to the time ap- 
 pointed for settling the certificate of sale. If on any of the 
 matters a difficulty arises, or the parties desire to have the de- 
 cision of the judge, the matter is adjourned personally before 
 him at chambers.(l) 
 
 *15. If a mortgagee in a foreclosure suit be allowed to 
 bid for the estate, he wiU not be permitted to conduct the 
 
 or unfairness in the sale, affords no ground {q) Gen. 'Orders, 23 Nov. 1831, 75; 
 
 for the interference of the court. Van- Gen. Orders, 16 July 1851, 1. 
 
 duyne v. Vanduyne, 1 C. E. Green, 93.] (r) Jervoise o. Clark, 1 J. & W. 389 ; 
 
 (p) Supra. supra, pi. 9. 
 
 ( 1 ) The course adopted at the rolls to meet the difficulty which lies in the way of 
 appealing from an order in chambers, and which was approved by the lords justices, is, 
 that after objections have been argued before the judge in chambers, and the report as 
 approved by him has been filed, the party dissatisfied with the decision may move in 
 court (as of course) to discharge, or vary the report, which is refused as a matter of 
 form, and an order is made confirming the report, and from this order the party can 
 appeal. This is to avoid two hearings, one in chamber? and one in court before the 
 same judge. York & North Midland Ky. Co. o. Hudson, 2 Eq. R. 295. There can, 
 properly speaking, be no appeal from a chief clerk's certificate. The suitor can always 
 have the opinion of the judge in chambers. Wadham v. Bigg, 8 Jur. N. S. 206. The 
 motion, as a matter of form, should be rendered unnecessary, 
 
 [99] 
 
CH. III. § I.] HOW SALE CONDUCTED. 141 
 
 sale ; (s) and no party to a suit can bid for an estate sold under 
 the decree without the authority of the court ; (t) and yet a 
 solvent partner, a defendant in a suit by the assignees of the 
 bankrupt partner for a sale, who bought without leave at the 
 sale before the master, was allowed to retain his purchase.(M) 
 A case must be made out against a plaintiff to deprive him of 
 the conduct of the sale ; it does not depend upon the extent of 
 the interest of the parties, nor is the possession of the title deeds 
 material, because every party to a suit is bound to facilitate the 
 sale, (a;) 
 
 16. The plaintiflF's solicitor should attend at the sale, which is 
 conducted in the following manner : The chief clerk prepares a 
 bidding paper of the lots to be sold, with spaces between each 
 lot.(a;i) The lots are successively put up at a price offered by 
 any person present, and every bidder must sign his name, with 
 his address and quality, and the sum he offers, in the space on 
 the particular, under the lot for which he bids. 
 
 17. The best bidder is, of course, declared the purchaser, but 
 the master had a discretion, (y) which would now be exercisable 
 
 (s) Domville v. Benington, 2 Yo. & Col. selling should be adopted ; so where a part 
 723 ; Drought v. Jones, 1 Fla. & Ke. 316 ; only is required to be sold. Mohawk Bank 
 Ex parte M'Gregor, 4 De G. & Sm. 603 ; u. Atwater, 2 Paige, 54 ; Merwin v. Smith, 
 [2 Dan. Ch. Pr. (4th Am. ed.) 1271; 1 Green Ch. 172; Coxe v. Halsted, 1 
 Hewitt V. Nanson, 28 L. J. Ch. 49 ; Mon- Green Ch. 319 ; Woods v. Monell, 1 John, 
 tague V. Dawes, 14 Allen, 369.] Ch. 505 ; Penn v. Craig, 1 Green Ch. 495 ; 
 (t) Elworthy v. Billing, 10 Sim. 98. American Ins. Co. u. Oakley, ,9 Paige, 
 [See Tennant v. Trenchard, X. R. 4 Ch. 259; Coates v. Lashley, 2 McCarter, 116; 
 Ap. 537, 546, 547.] Johnson v. Garrett, 1 C. E. Green, 31 ; 
 (u) Wilson V. Greenwood, 10 Sim. 101, Tieruan u. Wilson, 6 John. Chr411, 414; 
 n. Stead v. Course, 4 Cranch, 403,; Van- 
 la;) Knott V. Cottee (No. 4), 27 Beav. 33 ; duyne v. Vanduyne, 1 C. E. Green, 93 ; 
 [2 Dan. Ch. Pr. (4th Am. ed.) 1267. Griffith w. Hadley, 10 JJ.psw. (N. Y.). 587 ; 
 Where all the parties to the suit have Meeker v. Evans, 25 111. 322. But. the 
 liberty to bid, a solicitor not concerned for sale of several parcels together does not 
 any of them, to be mutually agreed upon, render the sale,.voi4 but only voidable ; 
 or, if they cannot agree, to be nominated and after a great .lapse.of ,time the .sale 
 by the judge, will be appointed to conduct will not be disturbed. Mphawk Bank v. 
 the sale, or a portion of the business Atwater, 2 Paige, 54; Penn v. Craig, 1 
 thereof; and he is usually designated in Green Ch. 495. Where the order of the 
 the proceedings as " the person appointed court is that the premises be sold all in 
 to conduct the sale in this suit." 2 Dan. one lot, that order must be followed 
 Ch. Pr. (4th Am. ed.) 1267.] Babcock v. Perry, 8 Wis. 877. 
 
 (x^) [If the property is so situated that (y) Re Costello, 2 Jo. & Lat. 244; the 
 
 it will ^probably produce more by being case of a tenancy, 
 divided into separate parcels, that mode of 
 
142 DEPOSIT : PUFFING : SUBSTITUTION. [CH. HI. § I. 
 
 by the judge, and the court may sanction a small bidding after 
 the bidder knew the reserved price.(2r^ If any lots are not sold, 
 they must be again advertised for sale.(a) 
 
 18. The payment of a deposit, and the investment of it in 
 the funds, are governed by the same rules as are adhered to 
 where the contract is between party and party ;(a^) and therefore 
 a purchaser is not entitled to the benefit of a rise in the funds 
 when his purchase is completed ; (b) nor can he deduct the prop- 
 erty tax out of any interest he has to pay.(c) But although a 
 purchaser paying money into court cannot deduct income tax, 
 yet he may obtain the deduction by application when the money 
 is paid out of court, and as between a vendor and purchaser the 
 tax may be deducted from the interest payable.(rf) 
 
 19. Where a fraud is committed on the purchaser by puffing 
 at the sale, it cannot be supported any more than a sale by pub- 
 lic auction. (e) 
 
 20. The court, as in common cases of sales by public auction, 
 *does not in general attend to verbal declarations at the sale, but 
 they may constitute a ground for relieving the purchaser from 
 the contract. (/) 
 
 21. The court will, on motion, discharge the purchaser, and 
 substitute any other person in his stead ; but this will not be 
 done unless such person pay in the money, and an affidavit be 
 made that there is no under-bargain ; for the new purchaser may 
 give the other a sum of money to stand in his place, and so 
 deceive the court.(g') 
 
 22. Where the title is defective, and another person has agreed 
 to take the estate with the defective title, no order can be made 
 
 (z) Bowie V. Lucy, 4 Hare, 311 ; see pi. (6) Sup. ; Ambrose v. Ambrose, 1 Cox, 
 
 9, suprcu [Vanbussum v. Maloney, 2 Met. 194 ; D'Oyley v. Lady Powis, 76. 206. 
 
 (Ky). 550.] (c) Humble v. Humble, 12 Beav. 43; 
 
 (a) 1 Tur. Pra. 129. Dawson v. Dawson, 11 Jur. 984. 
 
 (ai) [On a master's sale, which reserves {d) Bebb v. Bunny, 1 K. & J. 216. 
 
 to the .master the right to consider the (e) Sup. ch. 1, s. 1. 
 
 biddings open nntil the deposit is paid, no (/) 1 J. & W. 638, 639. 
 
 sale can be enforced where the purchaser (g) Rigby v. Macnamara, 6 Ves. 515 ; 
 
 refuses to pay the deposit or sign an ac- Vale v. Davenport, 6 Ves. 615 ; Hamilton 
 
 knowledgment ; -and no order for a re- v. Ball, 2 Ir. Eq. R. 195; Vincent v 
 
 sale is necessary, — the master will go on Going, 1 Fla. & Ke. 428; Matthews v 
 
 as if no sale had taken place. Hewlett v. Stubbs, 2 Bro. C. C' 291, for the old prac- 
 
 Davis, 3 Edw. Ch. 338.] tice. 
 
 [100] 
 
CH. ra. § I.] PROCEEDINGS AFTER SALE. 143 
 
 until the first purchaser is discharged ; (A) and it must be by 
 arrangement, for the court will not offer to sell with a title which 
 it is aware is bad ; (i) nor will it provide by condition against 
 imaginary defects. (&) 
 
 23. If the purchaser resell at a profit behind the back of the 
 court, before his purchase is confirmed, the second purchaser is 
 considered a substituted purchaser, and must pay the additional 
 price into court for the benefit of the estate.(Z) Under the new 
 practice, after a purchaser has been certified, and the judge has 
 signed it, and eight days have elapsed, he is so far deemed the 
 owner that he may sell at an advanced price for his own benefit; 
 in analogy to the former rule,(m) he is treated as a purchaser 
 under the old rule, after the report had been confirmed absolute. 
 
 24. Once more to resume the regular proceedings : After the 
 sale, the affidavit, prepared as we have seen by the chief clerk, 
 and sworn to by the auctioneer (together with the bidding paper, 
 reserved blading paper, and printed particulars annexed), stating 
 the sale and the biddings, and the sums for which the lots sold, 
 and to whom by name, is required, and the auctioneer is made 
 to swear that the sale was conducted by him in a fair, open, and 
 candid manner, and according to the best of his skill and judg- 
 ment.(m^) And by the fifteenth rule of the general orders of 
 August, 1857, an office copy of the affidavit of the person ap- 
 pointed to sell, of the result of the sale, with the bidding paper 
 and particulars therein referred to, are to be left at chambers at 
 least one clear day before the day appointed for settling the cer- 
 tificate of the result of the sale. At the time appointed for 
 settling the certificate, the solicitor should attend chambers, and 
 
 ■ the certificate will then be settled, and a time *is fixed for the 
 payment into court by the auctioneer of the deposits, for which 
 purpose an order is to be obtained upon summons. The cer- 
 
 (A) Williams v. Wace, C. Coop. 42. and of the subsequent proceedings therein, 
 
 (t) Piers V. Piers, 1 Sau. & Sou. 414 ; Baring v. Moore, 5 Paige, 48; Johnson v. 
 
 Lahey v. Bell, 6 Ir. Eq. K. 122. Garrett, 1 C. E. Green, 31 ; Tiernan v. 
 
 {!() Bennett U.Wheeler, 1 Ir.Eq. 11. 18. Wilson, 6 John. Ch. 411. But the sale 
 
 (I) Hodder v. Ruffin, Taml. 341. by an officer will not be set aside because 
 
 (m) Dewell v. Tufifnell, IK. & J. 324. the terms of sale are unusually strict or 
 
 (;n') [If the officer's conduct is grossly severe, if the circumstances of the case call 
 
 improper and oppressive upon a sale by for rigid measures, and no design of in 
 
 him, it seems he will be ordered to pay jury or oppression is manifested. Coxe v. 
 
 the costs of setting aside his report of sale, Halsted, 1 Green Cli. 311.] 
 
 [101] 
 
144 PROCEEDINGS AFTER SALE. [CH. III. § I. 
 
 tificate is engrossed by the solicitor as in ordinary cases, and the 
 further consideration is adjourned for four clear days to obtain 
 the approval thereof by the judge. When approved, it is filed 
 by the chief clerk, unless in the interim application is made by 
 some party by summons to open the biddings; the practice in 
 regard to which we shall presently see, and which has not been 
 varied by the late changes. The purchaser may, of course, 
 attend at the settlement of the certificate, but he receives no 
 notice to do so, and the chief clerk would proceed in his ab- 
 sence, and he would be bound by the certificate. 
 
 25. The purchaser is not considered as entitled, to the benefit 
 of his contract till the certificate of the purchaser's bidding is 
 absolutely confirmed. («) If, under the old practice, a purchaser 
 had been served with notice of a motion to open the biddings, 
 he could not regularly have proceeded to confirm his report ab- 
 solutely ;(o) but the order to confirm absolutely, when served, 
 operated from the day on which it was pronounced. (/») If after 
 having obtained the ordemisi, the purchaser neglected to confirm 
 the order, the vendor himself might have made the motion, (9) 
 of course; (r) but he could not by one motion have sought to 
 make the order absolute, and also that the purchaser should pay 
 his money into court.(6) According to the old practice, after the 
 purchaser was reported as the highest bidder, he was at the ex- 
 pense of obtaining the master's report, and of getting the report 
 made absolute, and then filed ; but according to the altered prac- 
 tice, all the expense is thrown on the parties to the cause. (<) 
 
 26. The bidder not being considered as the purchaser until the 
 certificate is confirmed, is not liable to any loss by fire or other- 
 wise which may happen to the estate in the interim ; (u) nor is 
 
 (n) See M'Cnlloch v. Gregory, 2 Eq. R. {p) Aberdeen v. Watlin, 6 Sim. 146. 
 
 108. [The purchaser takes subject to the (q) Chillingworth v. Chillingworth, 1 
 
 ratification of the sale by the court. Kauff- Sim. & Stu. 291; Lidbetter i/. Smith, 5 
 
 man u. Walker, 9 Md. 229; Tooley v. Beav. 377. 
 
 Kane, 1 Sm. & M. Ch. 518; Eakin </. (r) Kobertsouit;. Skelton, 10 Beav. 197. 
 
 Herbert, 4-Cold. (Teun.) 116. The effect (s) Duffield v. Elwes, 13 Bear. 85. 
 
 of confirming 'the report of a chancery (() Barlow v. Osborne, 6 H. L. Cas. 
 
 sale is nothing more than the completion 572, 573. 
 
 of the contract, and does not pass the legal (u) Ex parte Minor, 11 Ves. 559; 13 
 
 title. Webster v. Hill, 3 Sneed (Tenn.), Ves. 518 ; 1 J. & "W. 639 ; [Eakin v. Her- 
 
 322.] bert, 4 Cold. (Tenn.) 116.]j 
 
 (o) Vansittart v. Collier, 2 Sim. & Stu. j 
 608. 
 
CH. III. § I.] REMEDY AGAINST PURCHASER. 145 
 
 he, until the confirmation of the certificate, compellable to com- 
 plete his purchase ; (x) but upon the certificate being confirmed, 
 he will be compelled to carry the contract into execution. (2/) 
 And if an interest of uncertain duration be purchased, as a life 
 interest, the purchaser will be bound, although the life drop the 
 same night.(2) But we * may observe that if a life annuity had 
 ceased to exist by the death of the party before the sale, the 
 purchaser may recover the purchase money paid by him in igno- 
 rance of the event. (a) If the house fall, he must endure the 
 loss, and abide by the consequences.(6) 
 
 27. If the purchaser neglect to complete his purchase, the sell- 
 ers should obtain the confirmation of the certificate,(6^) and then, 
 if the purchaser is supposed to be responsible, get an order to 
 inquire whether the party can make out a good title,(c) and if he 
 can, to obtain an order upon the purchaser to complete his pur- 
 chase: (1) but if the purchaser is unable to complete his pur- 
 
 (x) Anon. 2 Ves. jr. 335 ; [2 Dan. Ch. the time for appeal has expired. Todd v. 
 
 Pr. (4th Am. ed.) 1281 ; Childress v. Hurt, Dowd, 1 Mf t. (Ky.) 281.] 
 
 2 Swan (Tenn.), 487.] (e) Notice must be given of the motion 
 
 (y) Barker v. Holford, Eggington o. for this order. [See Gordon v. Sims, 2 
 
 Flarel, 2 Ans. 344. M'Cord Ch. 167. But such an inquiry is 
 
 (z) Anson v. Towgood, 1 J. & W. 637 ; not indispensable, it is merely for the ben- 
 Vincent V. Going, 1 Fla. & Ke. 250, rev. efit of the purchaser, that he may not be 
 upon app. ; 3 Ir. Eq. E. 480 ; Vesey v. compelled to take a defective title. But if 
 Elwood, 1 Ela. & Ke. 667 ; 3 Dru. & War. the purchaser is satisfied, and makes no 
 74; Millican v. Vanderplank, 11 Hare, objection to the title, or waives the in- 
 136. qiirj) it does not afterwards lie in his 
 
 (a) Strickland v. Turner, 7 Ex. 208. mouth to take any exception of this na- 
 
 (6) Robertson w. Skelton, 10 Beav. 197; ture. And, a fortiori, his surety has no 
 
 19 L. J. N. S. 140 ; 12 Beav. 260 ; Counter right to take any such exception ; for he 
 
 V. Macpherson, 5 Moo. P. C. 83. has nothing to do vrith the matter of the 
 
 (6') [Payment cannot be resisted on the title. Wood ». Mann, 3 Sumner, 318, 
 
 ground of irregularity in a sale, after the 332,] 
 
 sale has been confirmed by the court, and . 
 
 (1) A motion vras made before Lord Erskine, that the purchase money should be 
 paid in by the purchaser. The purchaser did not appear. After consulting the regis- 
 ter, who had searched for precedents, and expressing his unwillingness to do anything 
 to prejudice sales by the court, the chancellor refused the motion, but ordered the title 
 to be referred to the master; and then, he said if a good title could be made, he would 
 compel payment of the money according to the usual practice. — Anon. Ch. 22d July 
 1806, MS. In 1 Newl. Pract. 544, it is said, that it seems that if the report is con- 
 firmed by the vendors, it is not necessary, previous to the application against the pur- 
 chaser that he be ordered to pay in his purchase money, that an abstract of title should 
 
 VOL. I. 10 V [102] 
 
146 
 
 REMEDY AGAINST PUKCHASER. 
 
 [CH. III. § I. 
 
 chase, then on the report being confirmed, it is moved that there 
 may be a resale, throwing the expenses and loss on him.{d) 
 But a purchaser will not be permitted to baffle the court ; and, 
 therefore, instead of discharging the purchaser from his bidding, 
 the court will, if required, make an order that he shall, within a 
 given time, pay the money or stand committed. (e) The order 
 generally would be to resell, throwing the expense and loss upon 
 the first purchaser, but not discharging him from the purchase 
 by the order. (/) 
 
 28. If an insane person bid, the estate must be resold ; but 
 
 {d) Harding v. Harding, 4 My. & Cra. 
 514 ; Saunders v. Gray, lb. 519, n. ; Tan- 
 ner V. Eadford, lb. 179, n.; Eobertson ii. 
 Skelton, 13 Beav. 91 ; overrnling Cunning- 
 ham V. Williams, 2 Ans. 344. [See Sim- 
 mons V. Tongue, 3 Bland, 341 ; MuUikin 
 V. MuUikin, 1 Bland, 541 ; Vannerson v. 
 Cord, 1 Sm. & M Ch. 345 ; Gross v. Pearsy, 
 
 2 P. & H. (Va.) 483 ; ClarksonB. Read, 15 
 Gratt. 288 ; In re Yates, 6 Jones Eq. 212, 
 306 ; Harding v. Yarbrough, 6 Jones Eq. 
 215, n. Upon a sale by a master, if the bid- 
 der to whom the property is struck off re- 
 fuses to complete the purchase, the master 
 should not allow another person to take it 
 at the former bid. Thompson v. Dimond, 
 
 3 Edw. Ch. 298. Where, by the condi- 
 tions of sale it is provided that " if the 
 purchaser do not comply with the condi- 
 tions, the property shall be resold," the 
 officer is not bound, upon a failure of the 
 purchaser to comply with the conditions, 
 to make a second sale, though requested 
 to do so by the defendant in the execu- 
 tion. Woodhull V. Neafie, 1 Green Ch. 409. 
 See Thompson v. Dimond, 3 Edw. Ch. 
 298 ; Hewlett v. Davis, 3 Edw. Ch. 338. 
 It is the custom in New Jersey, at public 
 sales, where a bid is fairly claimed by two 
 or more persons, to put the property up 
 
 (e) Lansdown v. Elderton, 14 Ves. 512 ; 
 Gray v. Gray, 1 Beav. 199 ; [Richardson 
 V. Jones, 3 Gill & J. 164 ; Wood v. Mann, 
 3 Sumner, 318. And in a case where the 
 purchaser at a sale by the master, in con- 
 formity witha decretal order of the court, 
 gave security to the master, in the shape 
 of a covenant with a surety to pay the 
 purchase money within a given time, and 
 the money was not paid either by the 
 principal or surety within that time, it 
 was held that a court of equity might, by 
 attachment, not only compel the purchaser 
 to complete his purchase by paying in the 
 purchase money, but might also proceed 
 against the surety, who had thus made 
 himself a party to the proceedings, in the 
 same summary manner. Wood v. Mann, 
 3 Sumner, 318.] 
 
 (/) Harding v. Harding, 4 My. & Cra. 
 514. [See Simmons v. Tongue, 3 Bland, 
 341 ; MuUikin v. MuUikin, 1 Bland, 541. 
 Where there is a decretal order, that in 
 case of nonpayment of the purchase money 
 within a given time, there shall be a resale 
 by the master, this is regarded as a mere 
 auxiliary security belonging to the party 
 seeking the benefit of the sale. But the 
 court is at liberty to rescind or suspend 
 such order at any time. The right to re- 
 
 again at the price bid, and as at the bid of sell does not take away the right to pro- 
 such one of the competitors as the auc- ceed by attachment. Wood v. Mann, 3 
 tioneer may declare entitled to it. Con- Sumner, 318; Seton v. Slade, 7 Ves. 265, 
 over V. Walling, 2 McCarter, 173.] 276.] 
 
 be delivered to him. Sanders v. Guy, Jan. 1811, before Lord Eldon; 1 Beav. 200, by 
 the name of Gray v. Gray ; Bulmer v. Alison, 8 Jur. 441 ; 15 L. J. N. S. 11 ; Foligno 
 V. Martin, 16 Beav. 583. 
 
CH. in. § I.J INSANE PERSON : PAYMENT OF PUECHASE MONEY. 147 
 
 the court has no power to hold the next bidder to his bidding, 
 and has refused, in such a case, to allow the next bidder to stand 
 as the purchaser, notwithstanding all the parties in the cause de- 
 sired it. The estate was ordered to be resold generally, (g-) 
 
 29. Proceedings for payment into court of purchase moneys 
 under sales by order of court, and investing the same, are to be 
 made at chamberg.(/{) 
 
 30. When the certificate is confirmed, the purchaser is entitled 
 to a conveyance on payment of the purchase money, and may 
 take out ' a summons for leave to pay his purchase money into 
 the bank,(i) and to be let into possession of the estate ; (t^) 
 but this application should of course not be made until the title 
 is approved of. Upon the return of the summons, and upon 
 production of the decree for sale, the conditions, and the certifi- 
 cate of purchase, an order will be made. A minute is indorsed 
 upon the back of the summons, and the solicitor must take it to 
 the registrar of the day, and bespeak his order. Provision will 
 be made in the order for payment of interest as ascertained by 
 previous calculation to a day certain, or as to be verified by affi- 
 davit ; but no allowance is made for income tax out of the in- 
 terest. Provision is also made for the conveyance and delivery 
 of the title deeds, if not already provided for by the decree, and 
 for the investment of the money if required. When the money 
 is paid according to the order, the purchaser must, at his own ex- 
 pense, obtain a certificate of the payment of it.(i^) 
 
 31. If the estate be subject to an incumbrance which appears 
 upon the report, the purchaser should, after giving notice of his 
 intention, apply to the court for leave to pay off" the charge, and 
 to pay the residue of the purchase money into the bank. But 
 
 (g) Blackbeard v. Lindigren, 1 Cox, 205. session by title paramonnt to that of the 
 
 (A) Order of V. C. 9 Hare App. 48. mortgagee or other party in whose favor 
 
 {{) For the' mode of paying the money the decree was made. Thomas t. De 
 
 into the bank, 1 Tur. Pra. 210. Baum, 1 McCarter (N. J.), 37 ; Schenck 
 
 (i') [A court of equity, in order to give v. Conover, 2 Beasley (N. J.), 220; Mc- 
 
 to the plaintiff the full benefit of the de- Comb v. Kankey, 1 Bland Ch. 163 n. (c).l 
 
 cree of sale under a mortgage, will put the (fl) [But the purchaser at a chancery 
 
 purchaser into possession of the premises sale is not answerable for any disposition 
 
 sold and conveyed in pursuance of its de- which the court may make of the purchase 
 
 cree. But in so doing it will not interfere money. Brown v. Wallace, 4 Gill. & J. 
 
 with, nor attempt in cases of doubt, to set- 479.] 
 
 tie the rights of any party claiming pos- 
 
 [103] 
 
148 OF POSSESSION, RENTS, AND PROFITS. [CH. III. § I. 
 
 where an incumbrance on the estate does not appear on the re- 
 port, and any of the parties refuse, or are incompetent to consent, 
 a purchaser cannot apply any part of his purchase money in dis- 
 charge of the incumbrance, though perhaps, if the parties be all 
 competent, and consent, it may be done.(k) Till he obtain his 
 conveyance, the court will not pay off any incumbrance out of 
 his purchase money, although he is guilty of de]ay.(/) When 
 the money is paid into court, and the incumbrancer has conveyed 
 to the purchaser, the latter will be safe, although the money is 
 subsequently improperly paid to common creditors in exclusion 
 of the incumbrancer. (»i) In a special case, where a purchaser 
 is allowed to relieve himself from paying interest, the court will 
 receive the purchase money without an acceptance of, the title, (w) 
 but possession will not be given to him.(o) Where he accepts 
 the title, and pays the money, the court will allow it to be with- 
 out prejudice to a question for compensation,(;?) and even, in a 
 proper case, without prejudice to any question, and without ac- 
 ceptance of title. (g) If he pay in his * money without notice 
 that a material statement in the particulars is false, he may be 
 relieved notwithstanding the payment.(r) 
 
 32. Where two or more persons purchase one lot, the money 
 must be paid altogether.(s) 
 
 33. A purchaser under a decree is entitled to be let into pos- 
 session of the estate from the quarter day preceding his pur- 
 chase, paying his money before the following one ; {t) which re- 
 fers to the confirmation of the certificate,(M) for until then he is 
 not the purchaser. (m^) K the rents are payable half yearly, the 
 purchaser would be entitled to them from the current half year. 
 
 (t) V. Stretton, 1 Ves. jr. 266. {p) Man v. Eicketts, 5 De G. & Sm. 
 
 (I) Bevan v. Bevan, 1 C. Coo. 381. 116. 
 
 (m) Todd V. Studholme, 3 K. & J. 324. (?) Eutley v. Gill, 3 De G. & Sm. 640. ■ 
 
 (n) Hutton v. Mansell, 2 Beav. 260 ; (r) Lachlan v. Reynolds, 1 Kay, 52. 
 
 Maurice v. Wainright; Hindle v. Dakins, (s) Darkin v. Marye, 1 An. 22. 
 
 1 C. Coo. 378 ; 1 Mac. & G. 344 ; Eutter (*) Twigg v. Fifield, 13 Ves. jr. 517 ; 
 V. Marriott, 10 Beav. 33 ; Ouseley v. Ans- Garrick v. Earl Camden, 2 Cox, 231 ; pest, 
 truther, 11 Bear. 399; Denning v. Hen- ch. 17. 
 
 derson, 1 De G. & Sm. 689 ; 1 Mac. & G. (m) 1 LI. & Goo. t. Plun. 176, 177. 
 
 344 ; as to the Excheq. Marfell v. Eudge, (u^) [Immediate possession will not be 
 
 2 Yo. & Col. 566. ordered where it will be attended with the 
 (o). Denning v. Henderson; Dempsey loss of the then growing crops. ChapHnew. 
 
 V. Dempsey, 1 De G. & Sm. 689, 691. Chapliue, 1 Bland, 364 ; Wright v. Wright, 
 
 [104] 
 
CH. m. § I.] OF POSSESSION, EENTS, AND PROFITS. 149 
 
 Therefore a sale by the court by private contract to the tenant, 
 whose rent was payable half yearly, was held to carry the half 
 year's rent from the preceding Novenaber, although the sale was 
 in March, and the money was to be paid in April without inter- 
 est, (a;) "Where a purchaser allows the time to elapse, he is enti- 
 tled to the rent only from the rent day preceding the payment of 
 the money into coiirt.{y) If the purchase is made through an 
 offer which is referred to chambers, the purchaser will be entitled 
 to the rents only from the date of the reference. (2) 
 
 34. And a purchaser is not entitled to the rents for a period 
 beyond the quarter day preceding the payment of his money, 
 merely because he has had his money ready lying dead in a 
 banker's hands, (a) 
 
 35. When a mortgagee purchases, and his principal and inter- 
 est, calculated up to the last quarter day, exceed the purchase 
 money, he will be let into possession as from the preceding quar- 
 ter day.(6) 
 
 36. But a purchaser will not be allowed profits not really be- 
 longing to the quarter ; for example, a purchaser cif a manor 
 must pay to the vendor the fines payable on account of deaths 
 of copyholders before the quarter, although the admissions do 
 not take effect until after he is let into possession. (c) 
 
 37. A life annuity stands upon a different footing, and a pur- 
 chaser will be entitled to it from the time he could have con- 
 firmed the report absolutely, and pays interest from that day.(fl!) 
 
 38. And where a life interest was sold in three per cent, con- 
 sols, and reduced, and the day after the sale, half a year's divi- 
 dends on * the consols became due, and the purchase was con- 
 firmed, and the money paid before the end of the month, the 
 purchaser was held to be entitled to the half year's dividend. 
 
 1 Bland, 365 ; Taylor v. Colegate, 1 Bland, (2) Cheetham v. Sturtevant, 3 De G. & 
 
 365 ; Dorsey v. Campbell, 1 Bland, 365.] Sm. 468. 
 
 (x) Hughes V. Wells, 1 Dav. Con. 513. (a) Barker v. Harper, Coo. 32 ; Hindle 
 
 (y) Gowan v. Tighe ; Prendergast v. w. Dakins, C. Coo. 381. 
 
 Eyre, 1 LI. &. Goo. t. Plun. 168, 180; (b) Bates ». Bonner, 1 Sim. 427. 
 
 Purch. Wed. 805. [In Wood «. Mann, 3 (c) Garrick v. Lord Camden, 2 Cox, 
 
 Sumner, 318, the rents and profits were 231 ; Lord Hardwick v. Lord Sandys, 12 
 
 allowed to' the purchaser only from the M. & W. 761 ; Cuddon v. Tite, 1 Giff. 
 
 time of the completion of the conveyance.] 395. 
 
 (d) Twigg V. Fifield, 13 Ves. 517. 
 
 [105] 
 
150 OF THE CONVEYANCE. [CH. m. § I. 
 
 Lord Eldon observed there was a case about a house being burnt 
 down before the confirmation of the report. But if the tenant 
 for life had died the same night, must not the purchase money 
 have been paid ? The report, when confirmed, must have rela- 
 tion back to the purchase ; and the contract was made the mo- 
 ment the purchaser's name was entered in the master's book. 
 If the tenant for life (1) had lived till the day after the sale and 
 then died, the purchaser would have had nothing if he was not 
 entitled to these divldends.(e) 
 
 39. A purchaser of a reversion will be entitled to the benefit 
 of his purchase, after the confirmation of the certificate absolute, 
 although the estate has fallen into possession ; but he must pay 
 interest from the time of confirming the certificate absolute,(/) 
 and this applies generally to other sales. (§•) 
 
 40. The general rule does not apply to a colliery, which is con- 
 sidered as a trade. The profits are settled monthly, and there- 
 fore the purchaser is entitled to the profits only from the com- 
 mencement of the month in which he purchased, paying his 
 purchase money in the course of that month. (A) 
 
 41. If a purchaser enter into possession, he will be compelled 
 to pay the money into court, although he entered with the per- 
 mission of the parties in the cause. The court only can give 
 such permission. (f) If he obtain it improperly he may be com- 
 pelled to take the title and pay the price at once.(A;) 
 
 42. Under the old practice the master settled the draft, but it 
 was usual to so word decrees, that the draft should not go before 
 the master, unless the parties differed, which words were omitted 
 where an infant was to convey,(Z) or the proposed deed would 
 convey his estate,(OT) for in such cases the master was to settle 
 
 (e) Ansen v. Towgood, 1 J. & W. 637 ; (h) Wrea v. Kirton, 8 Ves. 502 ; Will- 
 Vincent V. Going, 1 Fl. & Ke. 250 ; 3 iams v. Attenborough, Tur. & Eus. 70 ; 
 Ir. Eq. R. 480; Vesey v. Elwood, 1 Fl. Jeffereys v. Smith, 1 C. Coo. 381. 
 & Ke. 667 ; 3 Dni. & War. 75 ; O'Hara (t) Anon. L. I. Hall, 16 July 1816, MS. 
 V. Chaine, 8 Ir. Eq. E. 365 ; Millican v. (k) Wilding v. Andrews, 1 C. Coo. 380. 
 Vanderplank, 11 Hare, 136. {l) Calvert v. Godfrey, 2 Beav. 267; 
 
 (/) I"f- '^^- 17, s. 1 ; Eobertson v. Skel- Eichardson v. Ward, 11 Beav. 378. 
 
 ton, 13 Beav. 91 ; Wallis v. Sarel, 5 De (m) Cheese v. Cheese, 15 L. J. N. S. C. 
 
 G. & Sm. 429. 28. 
 
 (g) Re Ward's Legacy, 26 Beav. 207. 
 
 (1) In the report it is the purchaser, because the purchaser was himself the tenant for 
 life, whose interest was sold. 
 
CH. III. § I.] OF THE CONVEYANCE. 151 
 
 the conveyance. The purchaser had to pay the costs of his at- 
 tendance before the master, unless a special case was made.(w) 
 When the deeds had been * properly executed by all necessary 
 parties, and an affidavit of the due execution of them made, and 
 filed in the affidavit office, the money directed to be paid might 
 be procured in the usual manner.(o) The draft conveyance, 
 when approved, is now certified, and its execution may be en- 
 forced under the decree or order. When all proper parties have 
 been directed to convey, and a party to the cause withholds his 
 concurrence, the motion that he do convey should be made 
 against him personally.(p) If the parties disagreed as to the 
 necessary parties^ &c., to the conveyance, the master formerly re- 
 ported his approbation of the draft, as settled by him. To this 
 report exceptions might be taken, (3) and the question came be- 
 fore the court in a regular way. And where a master, under the 
 old rules, was directed to settle a conveyance in case the parties 
 differed about the same, the mode of proceeding upon the draft 
 was particularly pointed out by a general order.(r) Now if any 
 dispute or question arise as to the title, conveyance, payment of 
 interest, right to title deeds, or other matters connected with the 
 sale, a summons can be obtained by the purchaser or the other 
 party, when the matter will be discussed before the judge, who, 
 if necessary, will refer the draft to the conveyancing counsel, 
 and give other proper directions. The decision of the judge at 
 chambers is generally satisfactory, but, as we have seen, an ap- 
 peal lies from it. Wherever infants are or may be interested in 
 an estate which is ordered to be sold, the conveyance must be 
 settled by the conveyancing counsel of the court ; more espe- 
 cially when th^ sale is under the settled estates act. In such 
 cases, therefore, the order is that the conveyance should be set- 
 tled by the judge, and the words " in case the parties differ about 
 the same," cannot be added. And the judge refers the convey- 
 ance to the counsel ; but where the sale is in lots, the settlement 
 of one may be adopted by the chief clerk fox all the others in 
 
 (n) Hodgson v. Shaw, 11 Jur. 95; (?) Lloyd u. Griffith, 1 Dick. 103 ; Tip- 
 Brown V. Lake, 15 L. J. N. S. 34. ping v. Gartside, 2 Fow. Pra. 328 ; Wake- 
 
 (0) 1 Tur. Pra. 145. man v. Duchess of Rutland, 3 Ves. 504. 
 
 {p) Stillwell V. Mellersh, 4 My. & Cra. {r) General Order, 23d Nov. 1831, 76. ^ 
 581. . 
 
 [106] 
 
152 OBJECTIONS : master's KEPOET : PEACTICE. [CH, III. § I. 
 
 which no special circumstances occur to render that course im- 
 proper.(s) 
 
 43. If the parties formerly differed as to the validity of the 
 title, the master made his report, to which exceptions might 
 have been taken. (1) Now the objection would be disposed of, 
 as above stated, before the judge, on summons at chambers.(s^) 
 If necessary, the opinion of the conveyancing counsel will be 
 taken, and if the objection be one of weight, the judge or the 
 chief clerk may adjourn the * matter to court, to be argued by 
 counsel. But a certificate as to title or the want of it is after 
 eight days as absolute as a master's report which had been con- 
 firmed absolute, and very special grounds were required to open 
 a report which had been confirmed absolutely. (i) 
 
 44. A party buying under a decree is bound, as we shaU here- 
 after see, to take a good equitable title. In other respects the 
 usual rule as to a good title prevails, but if the purchaser buy in 
 the outstanding title, he cannot object to complete.(M) If he 
 obtain the legal estate, he cannot require, at the seller's expense, 
 a release from equitable incumbrancers whose demands have been 
 satisfied by the court, (x) 
 
 (s) In re Eyre's Estates, 4 K. & J. 268. derson v. Eoulke, 2 Harr. & J. 346 ; Far- 
 
 («!) [See Gordon y. Sims, 2 McCord Ch. mers' and Planters' Bank w. Martin, 7 
 
 167. When the purchaser at the master's Md. 342. In Spring u. Saudford, 7 Paige, 
 
 sale purchases under the assurance that 556, it was held that where real estate is 
 
 he is to receive a perfect title, if such title sold by a master under a decree, as and 
 
 cannot be given, he will not be compelled for a good title, the purchaser is only en- 
 
 to complete the purchase. Morris v. titled to such a title as a purchaser of the 
 
 Mowatt, 2 Paige, 586 ; Myers v. ' Bay- premises at a private sale would be bound 
 
 mond, 5 Florida, 516. A purchaser has a to receive from his vendor. See Jackson 
 
 right to require, under such circumstances, o. Edwards, 7 Paige, 386 ; S. C. 22 Wend, 
 
 a title which is good both at law and in 498 ; Dunham v. Mijiard, 4 Paige, 441 ; 
 
 equity. Morris o. Mowatt, 2 Paige, 586 ; Weems v. Brewer, 2 Harr. & G. 390.] 
 
 see Seaman «. Hicks, 8 Paige, 656. In ' (t) Howell v. Knightley, 21 Beav. 331 ; 
 
 Maryland the rule of caveat emptor applies 8 De G., M. & G. 325 ; see Wycherley v. 
 
 to all judicial sales. Chancery in no case Barnard, 1 John. (Eng.) 41. 
 
 attempts to sell anything more than the (u) Sheppard v. Doolan, 3 Dru. & 
 
 title of the parties to the suit; and it al- War. 1. 
 
 lows of no inquiry into the title at the in- (x) Keatinge v. Keatinge, 6 Ir. Eq. E. 
 
 stance of the purchaser or any one else. 43 ; Webber v. Jones, lb. 142. 
 Brown v. Wallace, 4 Gill & J. 479 ; An- 
 
 (1) If a purchaser succeeded in his exception, so that the title was held to be bad, 
 yet it was necessary for him to make a special application to be discharged as pur- 
 chaser. Hide V. Hide, 1 C. Coo. 379. 
 
 [107]. 
 
CH. m. § I.] OF COSTS. DISCHARGE OF PUECHASEE. 153 
 
 45. A purchaser must apply to the court for the relief to which 
 he is entitled, and will not, for example, be permitted to bring an 
 action for any document of title, the possession, of which he 
 claim s.(^) 
 
 46. If the title prove bad, the purchaser will be paid out of 
 the funds in the cause, the costs of the orders for confirming him 
 as purchaser, of the reference, and of the application, and the 
 expense of investigating the title. The order in such a case is 
 for payment out of the fund, of the purchaser's costs of, and 
 consequent upon his having become purchaser, and also of the 
 application, and his reasonable charges and expenses of investi- 
 gating the title, (z) 
 
 47. If there are no funds in court, the plaintiff will in a com- 
 mon case be ordered to pay the purchaser in the first instance (a) 
 his costs, charges, and expenses incurred in the investigation of 
 the title, together with the costs of the application ; and this al- 
 though the plaintiflF be only a legatee ; but he will be at liberty 
 to recover them over in the suit.(6) 
 
 48. The purchaser is entitled to the costs of the motion for a 
 reference of title, and to the costs of that reference even where 
 the title proves to be good, if it be made out on grounds not ap- 
 pearing on the abstract ; (c) although the title proves good ac- 
 cording to the abstract, yet the court will not compel him to pay 
 costs ; (d) but he must bear his own costs of the investigation. 
 
 49. But if a purchaser is relieved from the purchase upon a 
 collateral ground which he ultimately takes, of course he will 
 not be allowed his costs of investigating the title.(e) 
 
 50. In a case where there was error in the decree under which 
 the * estate was sold, the purchaser was discharged, upon motion, 
 &om his purchase, although the parties were proceeding to rec- 
 tify it.(/) Lord Eldon would not extend the rule of compelling 
 
 (y) Stiibbs V. Sargon, 4 Beav. 90. Flower v. Hartopp, 8 Beav. 200 ; Holland 
 
 («) Reynolds v. Blake, 2 Sim. & Stu. v. King, 20 L. T. 123. 
 
 117; Att. Gen. a. Corp. of Newark, 8 Sim. (e) Magennis v. Fallon, 2 Mol. 592; 
 
 71 ; Ward v. Trathem, 14 Sim. 82; Weir Macrell v. Hunt, 2 Msid. 34, n. 
 
 V. Chamley, 2 Ir. Ch. K. 566. (/) Lechmere v. Brasier, 2 J- & W. 287 ; 
 
 (a) Smith v. Nelson, 2 Sim. & Stu. 557. Chamberlain v. Lee, 10 Sim. 444 i Plum- 
 
 (6) Beny v. Johnson, 2 Yo. & Col. 564. tree v. O'Dell, 4 Ir. Eq. B. 602 ; Calvert v. 
 
 (c) Fielder v. Higginson, 3 Ves. & B. 142. Godfrey, 6 Beav. 97 ; O'Connor v. Kirwan, 
 
 ' {d) Camden v. Benson, 1 Ke. 671 ; Sugd. H. of L. 675 ; Blosse v. Ld. Clan- 
 
 [108] 
 
154 OF SALES CONTEAEY TO THE DECREE. [CH. lU. § I. 
 
 a purchaser to take the estate where a title is not made till after 
 the contract, to any case to which it had not already been ap- 
 plied. The purchaser waived the costs, but he ought, it should 
 seem, to have been allowed them. Where the purchaser, after 
 having paid in his money, was discharged on account of a want 
 of good faith on the part of the vendors, yet as the money had 
 not borne interest, none was given to him.(g') 
 
 51. If a purchaser of an estate under a decree of the court, 
 after the confirmation of the certificate (or formerly before the 
 absolute confirmation of the report), and before any conveyance 
 made to him, die, having devised his interest therein, the court 
 will order a conveyance to be made to the devisees, without the 
 consent of the testator's heir at law where he is an infant. (A) 
 
 52. Generally speaking, incumbrancers do not postpone their 
 rights over the purchase money by consenting to a sale ; it re- 
 quires a special direction to authorize the costs of the suit or of 
 the sale to be paid in priority to a first incumbrancer. (z) 
 
 53. If an estate directed to be sold by the court is sold con- 
 trary to the order of the court, and not actually conveyed to the 
 purchaser, the court will not take notice of the sale, but will di- 
 rect the estate to be sold according to the decree.(A;) And a per- 
 son who has notice of the decree cannot be advised to purchase 
 the estate unless it be sold according to the course of the 
 court ; (/) and the money should be paid into, court, and not to 
 the party, (ot) 
 
 morris, 3 Bli. 62; Wise ».POnsonby,Sugd. the purchase money. Browa i;. Wallace, 
 
 H. of L. 677 ; Sherwood v. Beveridge or 4 Gill & J. 479.] 
 
 Burridge, 13 Jur. 1042; 3 De G. & Sm. (^r) Laxjhlan w. Reynolds, 1 Kay, 52. 
 
 425 ; Whitfield v. Lequetre, lb. 464 ; Bent- (A) The King v. Gregory, 4 Pri. 380. 
 
 ley V. Craven, 17 Bear. 204. [The title of (t) Aldridge v. Westbrook, 5 Beav. 188 ; 
 
 a purchaser at a sale under a decree, made Wild v. Lockhart, 10 Beav. 320 ; Tipping 
 
 by a court of competent jurisdiction, is v. Power, 1 Hare, 405 ; Hepworth v. Hes- 
 
 valid, although the decree be reversed, and lop, 3 Hare, 485 ; see Cooke v. Brown, 4 
 
 the purchaser a party to the suit. Gossom Yo. & Col. 227, where the incumbrancers 
 
 ». Donaldson, 18 B. Mon. 230; Ward v. are unnecessarily brought before the court. 
 
 HoUins, 14 Md. 158. But in Wambaugh (i) Annesley v. Ashurst, 3 P. Wms. 282. 
 
 V. Gates, 4 Selden, 138, it was held that a Consider Ex parte Hughes, 6 Ves. 617 ; 
 
 title to land, acquired at a sale on a decree Bowen v. Evans, 1 Jo. & Lat. 178 ; Sugd. 
 
 authorizing it, is extinguished by the re- H. of L. 713. 
 
 versal of the decree. A purchaser at a (I) 2 vol. Ca. & Op. 224, 225. 
 
 chancery sale is not answerable for any (m) 2 Sch. & Lef. 581 ; Price v. North, 
 
 disposition which the court may make of 2 Yo. &, Col. 627, which qu. 
 
CH. III. § I.] JURISDICTION OF COXJET AFTER SALE. 155 
 
 54. If an estate be sold contrary to the order of the court, and 
 the purchaser had notice of the decree, he will have no retnedy ; 
 but if he bought without notice, he may recover, at law for 
 breach of the agreement.(w) If property not intended to be sold 
 be, by the ignorance or neglect of the vendor's agent, included 
 in a contract for sale with other property intended to be sold, a 
 case may arise in which the * court would refuse to compel a spe- 
 cific performance of the whole contract ; and if,'in such a case, 
 the purchaser declined to take so much as was- intended to be 
 sold, the course which the court might adopt would probably be 
 to abstain from interfering, leaving the purchaser to his remedy 
 at law ; but it certainly would not rescind the contract. This 
 course, however, cannot be followed in sales under the orders of 
 the court ; the property must be- sold, and the court must decide 
 whether the sale is to be carried into effect or the property resold ; 
 but it is expedient, so far as possible, to adopt the rales which 
 regulate such cases between vendor and purchaser to the case of 
 purchases under the order of the court, (o) 
 
 55. A sale before a master was held not to be within the 
 statute of frauds, and after confirmation of the master's report 
 of the best purchaser, the sale would have been carried into 
 effect even against the representative of the purchaser, although 
 he did not subscribe ; (p) but it must be by suit.(g) This rule 
 would, no doubt, still prevail. 
 
 56. And even if the authority of an agent not being admitted 
 cannot be proved, yet if the certificate could be confirmed, the 
 sale would be carried into execution unless some fraud were 
 proved.(»-) 
 
 57. As a purchaser under a decree does by the act of pur- 
 chase submit himself to the jurisdiction of the court, he may, 
 if he obtain possession of the estate before the contract is com- 
 pleted, be restrained by injunction from committing waste.(s) 
 
 (n) Raymond v. Webb, Lofft. 66; Mort- 381. [Where a person purchases under a 
 
 lock V. Buller, 10 Ves. 314. decree of the court of chancery, he submits 
 
 (o) Per L. C, Alranley v. Einnaird, 2 himself to the jurisdiction of the court in 
 
 Mac. & 6. 8 ; inf. Ch. 8, s. 2. that suit, as to all matters connected with 
 
 {p) Att. Gen. v. Day, 1 Ves. 218. such sale, or relating to him in the character 
 
 (j) Lord u. Lord, 8 Sim. 503. of purchaser. Requaw. Eea, 2Paige,339 ; 
 
 (r) Att. Gen. v. Day, I "Ves. 218. Clarkson v. Read, 15 Grattan, 288 ; Gross 
 
 (s) Casamajor v. Strode, 1 Sim. & Stu. v. Peai-sy, 2 P. & H. ( Va.) 483 ; Black" 
 
 [109] 
 
156 DECREE A SECURITY TO PURCHASER. [CH. HI. § I. 
 
 58. If leaseholds are sold, the executor of the testator, al- 
 though he has not taken possession, will be entitled to an 
 indemnity from the purchaser from the rents and covenants.(<) 
 
 59. The acts of 13 & 14 Vict. c. 60, and 15 & 16 Vict. c. 55, 
 provide for an order for a conveyance, or for a vesting order, 
 where parties to the suit, or bound by the proceeding, are unable 
 or unwilling to concur.(M) 
 
 60. A purchaser obtaining possession before confirmation of 
 his contract, and expending money in improvements, cannot 
 make that a ground why his purchase should not be dis- 
 turbed. (x) 
 
 61. "Where the purchaser has obtained a conveyance, although 
 originally the money could not be dealt with, without notice to 
 him, yet he should not, after the conveyance, appear on any 
 motion as to the fund, although served.(^) 
 
 62. The general rules as to other sales apply equally to sales 
 by the court, where a distinction has not been established. 
 
 *63. Although under the old rules the master sold before he 
 reported what estates passed by a w'i\\,{z) yet the purchaser was 
 safe ; and although more of an estate is sold than is necessary 
 for the purposes of the trust by virtue of which the decree was 
 made, yet the purchaser can make no objection to it, the decree 
 being a sufiicient security to him, as it cannot appear but that it 
 was right to sell the whole. If, however, the decree were that 
 Greenacre should be sold, and Blackacre were sold, an objection 
 to the sale would be good ; (a) although after much contest it 
 may be laid down as a general rule, that a purchaser shall not 
 lose the benefit of his purchase by any irregularity of the pro- 
 more o. Barker, 2 Swan (Tenn.), 340; (t) Cochrane u. Eobinson, 11 Sim. 378 ; 
 Stimson v. Meade, 2 R. I. 511 ; Shann v. see now 23 & 24 Vict. c. 35, s. 27, 28. 
 Jones, 4 C. E. Green, 251. Andthecourt (u) Infra. 
 
 may by attachment compel a purchaser at {x) Millican v. Vanderplank, 11 Hare, 
 a sale by the master to complete his pur- 136. 
 
 chase, by paying in the purchase money. (y) Barton v. Latour, 18 Beav. 526. 
 So of a surety for the purchaser. Wood v. (s) Dykes v. Taylor, 16 Jur. 563 ; where 
 Mann, 3 Sumner, 318; Gordon v. Sims, 2 there is an infant, Baillie v. Jackson, 10 
 McCord Ch. 151. But an attachment for Sim. 167 ; Lynch v. Joyce, 3 Dru. & War. 
 contempt will not be issued for refusing to 349. 
 
 pay in the purchase money, until an order (a) Lutwych v. Winford, 2 Bro. C. C. 
 to pay the purchase money has been passed. 248. 
 Cowell V. Lippitt, 3 R. I. 92.] 
 [110] 
 
CH. III. § I.] DECREE A SECURITY TO PURCHASER. 157 
 
 ceedings in a cause.(6) Therefore, if more interest be allowed 
 to legatees than they are entitled to, or the answers be put in 
 irregularly, or the purchaser obtain the benefit of the decree by 
 an assignment to a trustee, or tenants in tail, coming in esse 
 pending the suit, and becoming entitled prior to, the remainder- 
 men before the court, are not made parties, or the suit become 
 abated before the sale is completed, and is not revived, or the 
 like, yet, in the absence of fraud, the purchaser will not be 
 affected by such irregularities.(c) If a decree is obtained by 
 fraud, it may, of course, be relieved against; (d) and it has been 
 said that a purchaser is bound to see that, at least as far as 
 appears on the face of the proceedings before the court, there 
 is no fraud in the case ; (e) but if the court itself be imposed 
 upon, it would be a strong measure to imply notice of the fraud 
 to the purchaser, from the very proceedings before the court. 
 But it is a settled maxim that persons purchasing under decrees 
 of the court, as a general rule, are bound to see that the sale 
 is made according to the decree.(/) And this more especially 
 applies to the plaintiff in the cause.(g') Of course a purchaser 
 making use of the machinery of the court to obtain the estate 
 fraudulently as agiainst the persons entitled to the inheritance, 
 although with the concurrence of the tenant for life, cannot 
 sustain his purchase,(A) but a bond fide sale cannot be im- 
 peached simply because the suit was in fact instituted for the 
 purpose of carrying it into * execution. (t) The tenant for life 
 cannot be permitted in such a sale to obtain a benefit at the 
 
 (6) Lloyd V. Johnes, 9 Ves. 37 ; Curtis 2 H. L. Cas. 257 ; Sugd. H. of L. 679- 
 
 V. Price, 12 Ves. 89 ; Bennett v. Harnell, 2 721 . 
 
 Sch. & Lef. 566 ; Burke v. Crosbie, 1 Bal. (e) Gore v. Stacpoole, 1 Dow, 30; as to 
 
 & Bea. 489 ; Lightboume v. Swift, 2 Bal. the time of sale, Blacklow v. Laws, 2 Hare, 
 
 & Bea. 207 ; Baker v. Morgan, 2 Dow, 40. 
 
 526 ; MuUins v. Townsend, 1 Dow. & CI. (/) Colclough v. Serum, 3 Bli. 181 ; 
 
 430 ; Holroyd v. Wyatt, 2 Col. 327 ; [Lutwych v. Winford, 2 Bro. C. C. 248, 
 
 Thornhill v. Glover, 3 Dru. & War. 195. 251 ; Re Thompson's Settled Estates, 
 
 -(c) Bowen v. Evans, 1 J. & L. 178: Johns. 418, 423; He Woodcock's Trusts, 
 
 Sugd. H. of L.'Cas. 713; 2 H. L. Cas. L. E. 3 Ch. Ap. 230.] 
 
 257. {g) Talbott v. Minnett, 6 Ir. Eq. R. 83. 
 
 (d) Kennedy v. Daly, 1 Sch. & Lef. 355 ; (A) Thornhill v. Glover, 3 Dru. & War. 
 
 Giffard v. Hort, lb. ; Lansdowne v. Beau- 195. 
 
 man, 1 Mol. 89; Colclough v. Bolger, 4 (i) Townsend u. Warren, 1 J. &L. 221, 
 
 Dow, 54; Ld. Bandon v. Becher, 9 Bli. N. n. ; Sugd. H. of L. 704 ; Bowen v. Evans, 
 
 S. 532; Bowen v. Evans, 1 J. & L. 178; ubi sup. 
 
 ' [111] 
 
158 JUDGMENT CREDITORS HOW AFFECTED. [CH. HI. § I. 
 
 expense of the remainder-man, and if the purchaser permit him 
 to do so, that may in some cases vitiate the sale, although the 
 court, if the transaction was not fraudulent, will struggle to cor- 
 rect the misapplication, and not rescind the sale.(A;) 
 
 64. A sale under an act of parliament must pursue the au- 
 thority, but if a court having jurisdiction improperly decide as 
 to .debts or claims on the estate, yet such errors would not affect 
 a purchaser.(Z) 
 
 65. Where the court sells, it will protect the purchaser against 
 the parties to the suit, and all persons coming in under the 
 decree.(^^) But a person having a legal lien, as a judgment 
 creditor not coming in under the decree, would not be bound by 
 it, and migh.t proceed against the purchaser,(?») unless he ob- 
 tained a legal interest overreaching the lien ; in which case it 
 was held by Lord Manners that the claim being merely in 
 equity, the court would protect the purchaser buying under its 
 decree,(w) or rather would not lend its aid to the judgment 
 creditor against him. But this has since been denied to be law, 
 and therefore a purchaser under a decree for sale for payment 
 of an incumbrance should see that he obtains a discharge from 
 all judgment creditors, or that they are bound by the decree 
 whether he obtains the legal or equitable estate. Judgment 
 creditors not coming in and not having been brought before the 
 court, are not bound by the sale by the court, (o) Where a 
 purchaser paid part of the purchase money and entered into 
 possession, and was considered to have accepted the title, and 
 judgments were entered up against him, and then a decree was 
 pronounced in a suit by the vendors against the purchaser, who 
 was insolvent, and to which the judgment creditors were not 
 
 {k) Bowen v. Evans, 1 J. & L. 178 ; 2 49 ; 3 Mol. 23 ; 1 Dm. & Wal. 275 ; 1 Dm. 
 
 H. of L. Cas. 257 ; Baker v. Souter, 10 & War. 192; Johns v. French, 2 Bal. & 
 
 Beav. 343 ; Edgeworth v. Edgeworth, 12 Bea. 450 ; Piers o. Piers, 1 Sau. & Scu. 
 
 Ir. Eq. E. 81 ; Hope v. Liddell, 2 Jur. N. 379 ; 1 Dru. & Wal. 265 ; Barrett v. Ber- 
 
 S. 105 ; 21 Beav. 180, 183 ; a case of great mingham, 1 Sau. & Sen. 419 ; Fitzgerald 
 
 difficulty; inf. pi. 66. v. Lane, 3 Ir. Eq. E. 339 ; Stacpoole v. 
 
 (l) Vans Agnew v. Stewart, H. L. Cas. Curtis, 2 Mol. 504 ; Eolleston v. Morton, 
 
 1822. 1 Dru. & War. 171; see now 13 & 14 
 
 (l^) [See ante, 108, n. {/} ; Tommey v. Vict. c. 29, Ireland. 
 
 White, 3 H. L. Cas. 63.] („) Steele v. Philips, 1 Hog. 49 ; Beat. 
 
 (m) Barrett v. Blake, 2 Bal. & Bea. 188. 
 
 354 ; Steele y. Philips, Beat. 188 ; 1 Hog. (o) Knight w. Pocock, 24 Beav. 436. 
 
parties, for a specific performance, or to establish their lien, and 
 for a sale, and they obtained a decree accordingly, a purchaser 
 under the decree was not compelled to complete without the 
 concurrence of the judgment creditors.(jo) 
 
 66. If the tenant for life be not directed to keep down interest 
 as *he ought, but it is paid out of the purchase money, yet the 
 purchaser in the absence of fraud will not be affected, although 
 he may, if the person primarily responsible is not before the ' 
 court, be made accountable for the error.{g) And even where 
 fraud not being proved, the tenant for life was permitted to 
 receive a considerable sum without any authority from the court, 
 and stipulated for leases to himself from the purchaser, which 
 he received, the purchase was not set aside, but . the court con- 
 fined the relief to giving to the person entitled the full and fair 
 value of the property at the time of sale.(r) And now equity 
 is empowered upon a bond fide sale under a power to rectify a 
 mistake made in paying to a tenant for life, or any other party 
 a portion of the purchase money for his own benefit ; and to 
 give validity to the conveyance upon proper terms.(s) This 
 applies to sales under powers generally. 
 
 67. A sale by the court upon a bill filed by a tenant for life 
 with a power to raise a sum, to have the money raised, brought 
 before the court several persons to whom his son had granted 
 life annuities ; the son became tenant for life in remainder under 
 a settlement by him and his father, and the annuitants im- 
 peached that settlement as voluntary; the court held that the 
 annuitants were bound to join in the conveyance to the pur 
 chaser but without prejudice to any rights of theirs against the 
 purchase money in case they should be able to impeach the set- 
 tlement.(i) The son would be tenant in tail in remainder if the 
 resettlement were set aside, but still subject to the raising of the 
 prior charge. 
 
 68. Where a purchase under the court was held to be fraudu- 
 lent, although apparently on insuflScient grounds, and the pur- 
 
 (p) Governors of Gray Coat Hosp. v. 221, n. ; Sngd. H. of L. Cas. 704 ; Bowen 
 
 Westr. Imp. Comm'rs, 1 De G. & J. u. Evans, vibi sup. 
 531. (s) 22 &23 Vict. c.35,s. 13 ; inf. ch. 12, 
 
 (q) Boiven v. Evans, ubi sup. ; 1 J. & s. 4 ; see Cockerell v. Cholmeley, 1 01. & 
 
 L. 221, n. ; Sugd. H. of L. 704. Fin. 60. 
 
 (r) Townsend v.- Warren, 1 J. & L. {t) Sullivan v. Sullivan, 28 Beav. 102. 
 
 [112] 
 
160 SALE AUTHOBIZED BY ACT OF PARLIAMENT. [CH. III. § I. 
 
 chaser had settled the estate on his son's marriage ; the settle- 
 ment was, of course, not impeached, but compensation was 
 given out of the assets of the purchaser, who was dead, for the 
 full value of the lands, and the question of value was sent to a 
 jury.(M) It has been regretted that the jurisdiction was not 
 shown, nor the true measure of damages pointed out — whether 
 the worth of the estate when purchased, or its present value.(a;) 
 69. In Vans Agnew v. Stewart ; (y) where a private act of 
 parliament authorized the court of session, upon an action 
 instituted, to ascertain the amount of the debts of a deceased 
 tenant in tail chargeable upon the entailed estate, and after 
 having ascertained the amount, * to sell the estate ; the object 
 of the suit was to set aside the sales made of the estates, be- 
 cause the provisions of the act had not been followed. Lord 
 Eldon observed that the case of these purchasers was extremely 
 distressing, and he wished to lay it down in clear language, that 
 if a court is authorized by an act of parliament to proceed to 
 a sale, and if in the manner in which the act provides they 
 shall so proceed, no purchaser is answerable for the mistakes or 
 blunders of the court. Parliament trusts to the wisdom and 
 discretion of the courts ; and if the courts act according to the 
 rule of proceeding laid down for their government, although 
 they may be wrong, for instance, if they were to mistake the 
 amount of the debts, if they were to suppose that debt A. af- 
 fected lands, when it did not, or that debt B. did not affect the 
 lands when it did, — if purchasers under these mistakes and 
 blunders were not found to be safe, he did not know how any 
 one could deal as a purchaser under an act of parliament. 
 But then he conceived that every court was bound to proceed 
 according to the directions of the act ; and if the court did not 
 so proceed, the transactions of the court would be no more a 
 security to the purchaser than if it had not been authorized by 
 law to proceed at all. The whole proceedings appeared to him 
 contrary to the powers given to the court of session, in order to 
 make good titles to the purchasers. To Lord Redesdale it ap- 
 peared clear, that the court of session, having no authority to 
 
 (m) Ld. Baudon v. Becher, 9 Bli. N. S. (x) Sugd. H. of L. Cas. 702. 
 532; 3 CI. & Fin. 479; Sugd. H. of L. \y) H. of L. Cas. 1822, MS. 
 Gas. 692. 
 
 [113] 
 
CH. m. § n.] 
 
 OF OPENING BIDDINGS. 
 
 161 
 
 decree a sale, except that which the act gave them, were bonnd 
 to proceed according to the powers given them ; and that if 
 they did not do so, they were acting without authority. He did 
 not speak of any error in judgment. If the court of session 
 had. decreed in a suit properly brought, mere error in judgment 
 would be no ground for setting the proceedings aside. If the 
 court of session had proceeded in a cause in which all the proper 
 parties were represented, and if in the end justice had been done, 
 though the order of sale which was directed by the act of par- 
 liament had not been pursued, he thought that would not have 
 been a ground for overturning the whole of that which had been 
 done. 
 
 * SECTION II. 
 
 t 
 
 or OPENING THE BIDDINGS, AND OF RESCINDING THE CONTRACT. 
 
 1. Opening biddings. 
 
 3. Advance required. 
 
 4. Timber valued. 
 
 5. Operation of vice chancellor's certificate. 
 
 6. When certificate confirmed, advance of 
 
 price not sufiicient. 
 
 8. Fraud sufficient. 
 
 9. Costs of first purchaser. 
 10. Keallotment upon resale. 
 
 12. Person present at sale may open it. 
 
 13. Sham biddings. 
 
 14. Person opening not repaid his costs. 
 
 16. Where lots, all to be opened. — Opening 
 sale of lots to different purchasers. 
 
 17. Substitution of sub-purchaser, 
 
 IS. Eetarn of stoclt on rescinding contract. 
 
 19. Inequitable sale rescinded. But not a 
 
 hard bargain. 
 
 20. Unless there is mistalte; and no delay, 
 
 21. Bad title discovered before conveyance, 
 
 money returned. 
 
 22. Solicitor bound, although only buying in. 
 
 23. Remedy against executors. 
 
 25. Sale by private contract not opened. 
 
 26. No costs to purchaser of extended estate, 
 
 although no title. 
 
 1. Where estates are sold by direction of the court, the court 
 considers itself to have a greater power over the contract than it 
 would have were the contract between party and party ; (a) and it 
 is in the habit of opening the biddings after the estate is sold.(ai) 
 
 (a) 1 P. "Wms. 747 ; see Barlow v. Os- 
 borne, 6 H. L. Cas. .556; Harper u. Hayes, 
 7 Jur. N. S. 245 ; [Barlow o. Osborne, 6 
 H. L. Cas. 556 ; 4 Jur. N. S. 367 ; S. C. 
 nom. Osborne v. Foreman, 8 De G., M. & G. 
 122; Waterhouse v. Wilkinson, 1 H. & 
 M. 636.] 
 
 VOL. I. 11 
 
 (a') [Since the " Sale of Land by Auc- 
 tion Act," 1867 (30 & 31 Vict. c. 48), s. 7, 
 the practice of allowing a person to offer a 
 larger price than the estate was originally 
 sold for, and, upon such offer being made, 
 and a proportionate deposit paid in, of 
 directing a resale of the property, has been 
 
 [114] 
 
162 
 
 OF OPENING BIDDINGS. 
 
 [CH. III. § n. 
 
 This is the proper remedy of another mere bidder, who should 
 not attempt to set aside the sale for irregularity. (Z*) The open- 
 ing of the biddings discharges the first purchaser. 
 
 2. Where a person is 'desirous of opening a bidding, be must, 
 at his own expense, apply to the court, by motion for that pur- 
 pose, stating the advance offered. Notice of the motion must 
 be given to the person reported the purchaser of the lot, and to 
 the parties in the cause.(c) No order will be made until the re- 
 
 discontinued, and now, the highest bond 
 fide bidder, at a sale by auction of land 
 under an order of the court, prorided he 
 has bid a sum equal to or higher than the 
 reserved price (if any), will be declared 
 and allowed the purchaser, unless the 
 court or judge, on the ground of fraud or 
 improper conduct in the management of 
 the sale, upon the application of any person 
 interested in the land (such application to 
 be made to the court or judge before the 
 chief clerk's certificate of the result of the 
 sale has become binding), either opens 
 the biddings, holding such bidder bound 
 by his bidding, or discharges him from 
 being the purchaser, and orders the prop- 
 erty to be resold upon such terms as to 
 costs or otherwise as the court or judge 
 shall thinkfit. Where the purchaser stands 
 in such a fiduciary position as to be dis- 
 qualified from purchasing, the purchase 
 may be set aside, although it has been con- 
 firmed, and the certificate has become bind- 
 ing. Guest V. Smythe, L. R. 5 Ch. Ap. 
 551. In order to open the biddings on 
 the ground of " improper conduct in the 
 management of the sale," there must have 
 been such an impropriety as seriously to 
 have depreciated the value of the property ; 
 and the neglect of the auctioneer to ascer- 
 tain the amount of the reserved bidding 
 previous to the commencement of the sale, 
 is not such an impropriety. Brown v. 
 Oakshott, W. N. (1869), 207, M. R. The 
 former English practice of opening bid- 
 dings upon a mere advance of price, was 
 never regarded with much favor in the 
 United States. Special cause for opening 
 biddings must generally be shown. Le- 
 fevre v. Laraway, 22 Barb. 167 ; Duncan 
 
 V. Dodd, 3 Paige, 100; Collier v. Whipple, 
 13 Wend. 224 ; Lansing v. MTherson, 3 
 John. Ch. 425; Williamson v. Dale, 3 
 John. Ch. 290 ; Amer. Ins. Co. u. Oakley, 
 9 Paige, 257 ; Requa v. Rea, 2 Paige, 339 
 North River Ins. Co. v. Holmes, 1 Hotf. 
 Ch. 146; Post V. Leet, 8 Paige, 357 
 Frazier v. Hall, 2 McCord Ch. 159, n. (2) 
 Anderson ii. Poulke, 2 Harr. & G. 343 
 Henderson v. Lowry, 5 Yerg. 240 ; Camp' 
 bell V. Gardner, 3 Stockt. (N. J.) 424 
 post, 116, & li. (c) ; 2 Dan. Ch. Pr. (4th 
 Am. ed.) 1285, 1286, in note. It appears 
 from the report of the case of Wood v. 
 Mann, 3 Sumner, 318, 319, that the bid- 
 dings were reopened under a decretal 
 order of the court. The biddings will 
 not be opened in New York, except for 
 special cause, and not then, unless the pur- 
 chaser is fully indemnified for all damages, 
 costs, and expenses to which he has been 
 subjected without his fault. Duncan v. 
 Dodd, 2 Paige, 100 ; Collier v. Whipple, 13 
 "Wend. 224 ; Lansing v. M'Pherson, 3 
 John. Ch. 425 ; Williamson v. Dale, 3 John. 
 Ch. 290 ; Requa v. Rea, 2 Paige, 339 ; 
 North River Ins. Co. v. Holmes, 1 Hoff. 
 Ch. ,146, 149 ; Post v. Leet, 8 Paige, 357. 
 So in South Carolina. Prazier v. Hull, 2 
 McCord Ch. 1.59, n. (2). So in Maryland. 
 Anderson v. Foulke, 2 Harr. & G. 346. 
 So in Tennessee. Henderson v. Lowiy, 5 
 Yerger, 240. Biddings will not be opened 
 in South Carolina because the price is too 
 high or too low. Gordon v. Sims, 2 
 McCord Ch. 158.] 
 
 (6) Hughes V. Lipscombe, 6 Hare, 142. 
 
 (c) Sherwood v. Beveridge, 3 De G. & 
 Sm. 425 ; form of the notice, 2 Tur. Pra. 
 649, 650. 
 
CH. in. § 11.] ADVANCE EEQUIEED. 163 
 
 port of the purchase has been made,{d) even to discharge the 
 purchaser where he is entitled to be relieved on a collateral 
 ground. (e) If the court approve of the sum offered, the. appli- 
 cation will be granted, and on the order being drawn up, entered 
 anei served, a new sale must be had. The order is made at the 
 expense of the person opening the biddings, and he must bear 
 the expense of paying in his deposit, and * pay the costs of the 
 first purchaser,(/) and interest at the rate of Al. per cent, on such 
 part of the purchase money as shall be found to have lain dead.(g') 
 Where a large deposit was paid by the first purchaser, the person 
 opening the biddings upon an advance less than the former de- 
 posit was not directed to pay the whole of such deposit until it 
 was ascertained that he was to be the purchaser.(A) 
 
 3. Mere advance of price, if the certificate of the purchaser 
 being the best bidder is not absolutely confirmed, is sufiicient to 
 open the biddings, and they will be opened more than once, even 
 on the application of the same person, if a sufficient advance be 
 offered ; (i) but the court will stipulate for the price, and not per- 
 mit the biddings to be opened upon a small advance ; (k) and, 
 although an advance of ten per cent, used generally to be con- 
 sidered sufficient on a large sum, yet no such rule now prevails ; (I) 
 but ten per cent, has been accepted upon a sum under 1,000/; (m) 
 and in the case of a sale under a creditor's suit, the court per- 
 mitted the biddings to be opened, upon an advance of five per 
 cent, on 10,000Z.(w) An advance of 350/. upon 5,300/. w^as re- 
 
 {d) LoTegi-ove v. Cooper, 9 Hare, 279. Dan. Ch. Pr. (4th Am. ed.) 1285, 1286, in 
 
 (e) M'Culloch V. Gregory, 23 L. J. 656 ; note ; Gordon v. Sims, 2 McCord Ch. 158 ; 
 
 2 Eq. E. 1088. Gardner v. Schermerhorn, 1 Clarke, 101 ; 
 
 if) 2,Fow. Fra. 318; 1 Tur. Pra. 131 ; Tripp v. Cook, 143.] 
 
 Sullivan v. Bayley, 1 Pla. & Ke. 460, as to (k) Anon. 1 Yes. jr. 453 ; Anon. 2 Ves. 
 
 investigation of title. jr. 487 ; Upton v. Ld. Ferrers, 4 Ves. 700 ; 
 
 (g) Gen. Birch's case, MS. ; Banks v. Anon. 5 Ves. 148. 
 
 Banks, 16 Beav. 66. (Z) Andrews v. Emerson, 7 Ves. 4 ; 
 
 (h) Banks v. Banks, 16 Beav. 380. White v. Wilson, 14 Ves. 151 ; Anon. 3 
 
 (i) Scott V. Nesbit, 3 Bro. C. C. 475; Mad. 494; Manners v. Eurze, 17 L. J. N. 
 
 Hodges V. Jones, 2 Eow. Pra. 318 ; Baillie S. 485. 
 
 V. Chaigneau, 6 Bro. P. C. by Tom. 313 ; (m) Connell v. Hardie, 3 Yo. & Col. 
 
 Preston v. Barker, 16 Ves. 140. [The 677; Bourn u. Bourn, 13 Sim. 189; Ter- 
 
 former practice of opening biddings on an son v. Hawkins, 18 Jur. 721. As tb the 
 
 offer ofa larger price, has been discontinued rule in Ireland, Hutchins v. Hutchins, 1 
 
 in England, 30 & 31 Vict. i;. 48, s. 7 ; and Ir; Eq. E. 378. 
 
 it never obtained much standing or favor (n) Brooks v. Snaith, 3 Ves. & Beav. 
 
 in the United States, ante, 114, n. (ai) ; 2 144.' 
 
 [115] 
 
164" OF OPENING BIDDINGS. [CH. III. § II. 
 
 fused, and it was said that the former cases only established that 
 where an advance so large as 500?. is offered the court will act 
 upon it, though it be less than ten per cent.(o) But in a later 
 case, 300?. was accepted on 5,020l.,{p) and 365/. (being five per 
 cent.) on 7,300l.(q) Biddings, it seems, will not be opened un- 
 less 40?. at least be offered in advance ; (r) and the common rule 
 does not apply to a colliery.(s) Harder conditions have been 
 imposed where the biddings opened were for an estate held for 
 lives.(?) Where they were by tender, they were opened upon 
 grounds (m) which must have been a surprise upon the purchaser, 
 and are, I fear, 'calculated to prevent persons from tendering for 
 an estate after an ineffectual attempt to sell it by auction. 
 
 4. Where the timber is separately valued, the price upon which 
 the advance is to be made is the aggregate of the purchase 
 money and valuation of the timber.(a;) 
 
 5. The signing of a certificate by a vice chancellor, approving 
 the purchaser of an estate after a sale, is only equivalent to the 
 order nisi confirming the master's report, and eight days are al- 
 lowed after such signature and the filing of the certificate, within 
 which the certificate may be discharged, (j/) but after that time 
 the certificate is considered as confirmed absolute. 
 
 6. But biddings are in general not to be opened after this pe- 
 riod, that is, after the confirmation of the certificate ; (z) increase 
 of price alohe is not sufficient, however large, although it is a 
 strong auxiliary argument where there are other grounds. Under 
 the new practice, the court has shown great unwillingness to 
 open the biddings upon mere advance of price, and time runs in 
 
 (o) Garstoae v. Edwards, 1 Sim. & Stu. («) Walond v. Walond, 8 Bear. 352, qu. 
 
 20 ; Lefroy v. Lefroy, 2 Bus. 606 ; Coch- {«) Osborne v. Foreman, 8 De G., M. 
 
 rane v. Cochrane, 2 Ens. & My. 684 ; Hoi- & G. 122. 
 
 royd V. Wyatt,.2 Col. 537. (x) Bates v. Bonner, 6 Sim. 380. 
 
 ip) Lawrence a. Halliday, 6 Sim. 296 ; (y) Bridger v. Penfold, 1 K. & J. 28 ; 
 
 Ward V. Cooke, 9 Sim. 87. Barlow v. Osbonie, 6 H. L. Cas. 556. 
 
 (q) Domville v. Berrington, 2 Yo. & (z) 2 Ves. jr. 53 ; Scott v. Nestit, 3 Bro. 
 
 Col. 723. C.'C. 475; Boyer v. Blackwell, 3 Ans. 
 
 (r) Farlow v. Weildon, 4 Mad. 460 ; 656 ; Prideaux v. Prideaux, 1 Bro. C. C. 
 
 Brookfield !). Bradley, 1 Sim. & Stu. 23; 287; 2 Ves. jr. 53; 1 Cox, 35; Aubrey w. 
 
 Leland v. Griffith, 2 Mol. 510; Mayne v. Denny, 2 Mol. 508; "Vincent v. Thwaites, 
 
 Macartney, 2 Ir. Eq. R. 324. 5 Ii-. Eq. R. 526, overraled ; Chetham u. 
 
 (s) Williams v. Attenborough, Tur. & Grugeon, 5 Ves. 86 ; Prideaux u. Prideaux , 
 
 Rus. 70. ubi sup. ; [Brown v. Gilmer, 8 Md. 322.] 
 
 [116] 
 
CH. III. § 11.] 
 
 OF OPENING BIDDINGS. 
 
 165 
 
 the vacation ; (a) but in a late case the biddings were opened 
 within the eight days,,m favor of a bidder at the sale, upon an 
 advance of upwards of nine per cent., and the court thought the 
 decision would not in any way tend to damp biddings, or pre- 
 vent reasonable men from attending such sales,(6) upon which 
 point undoubtedly opinions differ. 
 
 7. Under particular circumstances, biddings have been opened 
 after confirmation of the report, where the advance was consid- 
 erable.(l) But now, unless some particular principle arises out 
 of the purchaser's character as connected with the ownership of 
 the estate, or some trust or confidence, or his own conduct in ob- 
 taining his report, the bidding ought not to be opened. (c) The 
 
 (a) Ware v. "Watson, 7 De G., M. & G. 
 739. 
 
 (6) In re Jones's Settled Estate, 1 Giff. 
 284. 
 
 (c) Morice v. The Bishop of Durham, H 
 Ves. 57; Fergus v. Gore, I Sch. & Lef. 
 350; White V. "Wilson, 14 Ves. 151. [" The 
 practice pursued by the court of chancery 
 in New Jersey in opening biddings or set- 
 ting aside sales after a decree, has assimi- 
 lated very much to the English practice 
 after a report of sale and confirmation of 
 the same. According to the [former] prac- 
 tice of the court of chancery in England, 
 if the parties apply [applied] to open bid- 
 dings before the report is [was] confirmed, 
 it is [was] a matter of course to open them 
 on payment of costs and making a deposit ; 
 but after confirmation, a special ground 
 upon evidence is [was] required. This court 
 [of chanceryvin New Jersey] has never in- 
 terfered with a sale for mere inadequacy of 
 price, but has uniformly declined doing so. 
 [See "Weber v. Weiting, 3 C. E. Green, 441 ; 
 Marlott V. Warwick, 3 C. K Green, 108 ; 
 Hodgson V. Farrell, 4 C. E. Green, 88.] 
 It has always required some special ground 
 to be laid, such as fraud or accident, which 
 has prevented a fair sale of the property. 
 
 and worked injustice to some party whose 
 interest is affected by the sale. The 
 special ground which by the English prac- 
 tice is required to open a sale after con- 
 firmation, has always been required by 
 this court to open a sale when the prop- ■ 
 erty has been struck off to the purchaser. 
 In England a sale is confirmed on the 
 same footing as a sale here, which has 
 been confirmed (not by the court, for that 
 is not required), but the sheriff's comple^ 
 ing all that is necessary to be done, as, 
 sale upon his execution, and delivery of 
 his deed to the purchaser. The same ob- 
 jection, therefore, which would exist to 
 the opening of a sale by this court, upon 
 motion or petition, after the sheriff had 
 delivered his deed, would operate with 
 equal force against that practice after a 
 confirmation of sale, if such confirmation 
 were necessary." Chancellor Williamson, 
 in Campbell v. Gardner, 3 Stockt. (N. J.) 
 424, 425. In this case it was held, that after 
 a sale upon an execution out of the court 
 of chancery, and a delivery of the deed, 
 the court may, upon a proper case made, 
 open the sale upon petition. See Conover 
 V. Walling, 2 McCarter, 173. And it is 
 not a vaUd objection to this course, that 
 
 ( I ) In Ireland, a sale under a decree was actually set aside after the purchaser was 
 put in possession, and the conveyance to him executed and registered, because anothei 
 person offered 2001. more than the purchaser had, paid. Conran v. Barry, "Ver. & Scri. 
 111. See Ex parte Partington, 1 Ba. & Bea. 209 ; see 3 Mon. & Ay. 545. 
 
166 OF OPENING BIDDINGS. [CH. III. § II. 
 
 old rules ought to be maintained under the new practice, but in 
 a» case where the property was valued at 1,400?., the reserved bid- 
 ding was 1,600/., and it sold for 2,770/., and anether person bid 
 by his agent (who, it was said, had an unlimited authority), but 
 seems to have stopped at 2,500/., the court thought that the bid- 
 der'was taken *by surprise in consequence of the large sum bid, 
 that he had not a fair chance of bidding, and that he ought to 
 have a new opportunity of bidding, and the biddings were opened 
 upon an advance of 230/., although the purchaser had investi- 
 gated the title, and the timber had been valued. (li) This does 
 not seem to be warranted by the authorities, and is calculated 
 seriously to injure sales by the court. The decision has been re- 
 versed on appeal : principally upon the ground that the eight 
 days run during the vacation, and that the applicant was too 
 late, but the lords justices were manifestly for adhering to the 
 old rules, (e) Where, however, the eight days were permitted to 
 expire after the filing of a certificate that a good title could not be 
 made, without taking any step, through the notion of the solici- 
 tor's clerk that the court could review the certificate when the 
 cause came on for further consideration, the court allowed a mo- 
 tion to be made to vary the certificate. (/) When the practice 
 is better understood, mere negligence or ignorance of the prac- 
 tice will probably not be admitted as an excuse. 
 
 8. Fraud will, of course, be a sufficient ground for opening the 
 biddings.(/^) Therefore, if (1) a survey be made of an estate 
 
 the deed has become a matter of record, trustees, agents, and public officers acting 
 
 If a resale is ordered, the court may re- either by authority of law, or by virtue of 
 
 quire the first purchaser to release to the the process of the court of chancery, or 
 
 purchaser on the resale, all the title he any other court. Howell v. Sebring, 1 
 
 may have acquired by his deed, so that McCarter, 84.] 
 
 the title may stand upon the record totally {d] Ware v. Watson, 1 Jur. N. S. 1083. 
 
 disembarrassed. Campbell o. Gardner, 3 (e) 2 Jur. N. S. 129 ; see Howell v. 
 
 Stockt. (N. J.) 427, 428. The jurisdiction Knightley, 21 Bear. 331, 8 De G., M. & G. 
 
 of the court of chancery in New Jersey to 325 ; Wycherley v. Barnard, 1 Johns. 41. 
 
 set aside sales, is not confined to cases of (/) Ashton v. Wood, 3 Jur. N. S. 146 ; 
 
 sales under a decree of that court. It ex- 26 L. J. N. S. 27.5. 
 
 tends to all sales made by administrators, (/') [See Collier v. Whipple, 13 Wend. 
 
 (1) In former editions it was stated, "if the parties agree not to bid against each 
 other, 2 Ves. jr. 52." That reference is erroneous : such an agreement is not illegal, 
 and. therefore could not be complained of, unless, from the circumstances connected 
 with it, it amounted to a fraud upon the court ; see In re Carew's Estate, 26 Beav. 197 ; 
 [Galton V. Emuss, 1 Coll. 243 ; Switzer v. Skiles, 3 Gilm. 529.] 
 
 [117] 
 
CH. ni. § II.] 
 
 OF OPENING BIDDINGS. 
 
 167 
 
 with some degree of collusion with the tenants,(g-) and it mis- 
 represents the value and quality of the estate, and some of the 
 purchasers are aware of this fraud in making the survey, and 
 the owner is ignorant of it; or the purchaser of the estate be 
 partner with the solicitor of the cause, and is in possesion of 
 some particular knowledge to the benefit of which the other par- 
 ties were entitled,(A) or is the receiver, and buys in the name of 
 a third person, without the leave of the court,(i) the court would 
 open the biddings, although the report had been absolutely con- 
 firmed. And lately in Ireland biddings were opened after con- 
 firmation, because the plaintiff in a foreclosui\e suit was the pur- 
 chaser, although he was by the practice at liberty to purchase. (A) 
 Where a strip of land was bounded in part by properties of two 
 persons^ and they agreed that one should bid for it, and that each 
 should have the portion he required, and the bidder upon the 
 sale under the court became the purchaser at a sum beyond the 
 reserve<l * price, which was not half of the amount which the 
 two had agreed between themselves to bid, the court refused to 
 set aside the sale : it could only be impeached for fraud ; the 
 amount of the sum agreed to be bid was not material, and there 
 
 224 ; Williamson v. Dale, 3 John. Ch. 290 ; 
 Tripp V. Cook, 26 Wend. 143. So mistake 
 in some cases. Laight v. Pell, I Edw. Ch. 
 577 ; Gordon v. Sims, 2 McCord Ch. 159 ; 
 Post u. Leet, 8 Paige, 337 ; Anderson v. 
 Foulke, 2 Harr, & G. 346 ; Requa i^. Eea, 
 2 Paige, 339 ; Amer. Ins. Co. v. Oakley, 9 
 Paige, 259 ; Lefevre v. Laraway, 22 Barb. 
 167; post, 120, n. {I). The circumstance, 
 that there were but two purchasers present, 
 does not prove fraud in a sale, if it was 
 duly-advertised, and there was no evidence 
 of any attempt to keep away purchasers. 
 Mitchell V. Berry, 1 Met. (Ky.) 602. But 
 the sale was set aside in a case where the 
 day of sale was so inclement as to deter 
 several persons from attending who in- 
 tended to have been present, and only one 
 bidder was present, and that bidder lived 
 at the place. Roberts v. Roberts, 1 3 Grat- 
 tan, 639 ; see Montague v. Dawes, 14 
 Allen, 369, 374. So where a sale of land 
 was directed, to pay a judgment, and there 
 was a failure to advertise the sale in the 
 
 manner prescribed by the judgment, and 
 the land was sold for less than its real 
 value. Williams v. Woodruff, 1 Duvall 
 (Ky.), 257; 2 Dan. Ch.Pr. (4thAm. ed.), 
 1290, 1291 in notes.] 
 
 ig) Ryder v. Cower, 6 Bro. P. C. 148 ; 
 2 Ves. jr. 53. 
 
 (h) Price w. Moxon, July 14, 1754, before 
 Ld. Hardwicke ; 6 Bro. P. C. 155 ; 2 Ves. 
 jr. 54 ; [Brinkerhoff v. Brown, 4 John. Ch. 
 675.] 
 
 (i) Alven v. Bond, 1 Fla. & Kel. 196. 
 
 {k) O'Connor u. Richards, 1 Sau. & 
 Sen. 246; explained, 1 Fla. & Kel. 210. 
 [See Montague v. Dawes, 14 Allen, 369. 
 Where the sale is of mortgaged premises 
 by decree of the court, upon an application 
 of the mortgagee, and the mortgagee is 
 the purchaser, the court will regard an ap- 
 plication for a resale with greater indul- 
 gence than where a stranger is the pur- 
 chaser. Campbell v. Gardner, 3 Stockt. 
 (N. J.) 423.] 
 
 [118] 
 
168 OF OPENING BIDDINGS. [CH. III. § II. 
 
 was nothing inequitable in the agreement.(/) Such an agree- 
 ment upon a sale out of court had previously been held not to 
 be illegaL(m) 
 
 9. Where the biddings are opened, the advance is to be de- 
 posited immediately,(w) and the costs of the purchaser to be 
 paid by the persons opening the biddings ; (o) but the court will 
 not direct the allowance of a specific expense.(jo) If the last 
 purchaser himself opened the biddings, the person again opening 
 them must pay the costs of the former opening.(^) 
 
 10. If the biddings are opened, the estate may be allotted for 
 sale in a different manner to what it at first was.(r) 
 
 11. As the biddings are opened for the benefit of the suitor, 
 no other person will be favored in that respect. Thus, upon a 
 motion to open a bidding of 5,020/., (s) upon the ground »Df mis- 
 take as to the time of sale, and an over-bidding of 150Z., the lord 
 chancellor refused it, saying he would not open it for a less sum 
 than 500/., and that the circumstance that the bidder was too 
 late was no 'ground at all. 
 
 12. The person who is desirous of opening the biddings hav- 
 ing been present at the sale, and having bid, is no objection to 
 their being opened, although a greater advance may, on that ac- 
 count, be required. (/) Nor is it material that the applicant is 
 entitled to a part of the produce of the estates.(M) 
 
 13. A man opening the biddings on behalf of a person not in 
 existence, will himself be decreed to be the purchaser, and sham 
 biddings on such a resale will be set aside by discharging the 
 
 [1) In re Carew's Est. 26 Beav. 197; Ward v. Cooke, 9 Sim. 87 ; Humphries v. 
 
 [ante, 11, u. (g) ; McMinn v. Phipps, 3 Roberts, 6 Jur. 680. [The proceedings 
 
 Sneed (Tenn.), 196. But puffing cannot upon a resale are usually the same as upon 
 
 be permitted any more in the case of sales the original sale. 3 Dan. Ch. Pr. (4th Am. 
 
 by order of court than in case of ordinary ed.), 1291, n. (5)]. 
 sales. Dimmock u. Hallett, L. E. 2 Ch. (s) Anon. 1 Ves. jr. 453. 
 Ap. 21,29.] (t) Rigby v. M'Namara, 6 Ves. 117; 
 
 {m) Galton v. Emuss, 1 Coll. 243. Tait v. Ld. Northwick, 5 Ves. 655 ; see 15 
 
 (n) Anon. 6 Ves. 513; Anon. 1 K. & Ves. 14; M'CuUock v. Cotbach, 3 Mad. 
 
 J. 719. 314, where the V. C. ruled contra; but 
 
 (o) Watts V. Martin, 4 Bro. C. C. 113 ; rule established by Thornhill v. Thornhill, 
 
 Jl. 178 ; Upton v. Ld. FeiTers, 4 Ves. 700 ; 2 J. & W. 347 ; Pearson v. Pearson, 13 
 
 Digby u. Browne, 1 Ir. Eq. K. 377. Pri. 213; Tyndale v. Wane, Jac. 525; 
 
 (p) Anon. 1 Ves. jr. 286. Lefroy ;;. Lefroy, 2 Bus. 606 ; Biggs v. 
 
 {q) 6 Sim. 382. Eowe, 1 Sau. & Scu. 152. 
 
 (r) Watts V. Martin, 4 Bro. C. C. 113; (w) Hooper w. Goodwin, Coo. 95. 
 
CH. III. § II.J OF OPENING BIDDINGS. 169 
 
 certificate of the bidder's being the best, and the court will cer- 
 tify the person who procured the biddings to be opened as the 
 best bidder at the price at which he opened them. (a;) 
 
 14. Where a person is permitted to open the biddings upon 
 the usual terms, paying the costs, and 'making a deposit, and the 
 estate is bought by another person, the person opening the bid- 
 dings is 'entitled to take back his deposit; but he is not entitled 
 to an allowance for his costs.(2/) But if a person came forward 
 for the benefit of the family, and the estate at the first sale was 
 knocked down by mistake, or sold at a great undervalue, he 
 would be allowed his expenses.(z) 
 
 15. After the confirmation absolute, although irregular, the 
 order must be discharged before the biddings can be opened. (a) 
 
 16. If a person purchase several lots, and the biddings are 
 opened as to one, he will have an option to open them all. (6) 
 The persons desirous of opening the biddings as to some of the 
 lots must submit to take the others at the sum for which they 
 were sold, if the purchaser desires to relinquish them, and they 
 shall not upon the resale fetch that sum.(c) In two late cases 
 the distinction was taken that where the lots, the biddings for 
 which are sought to be opened, were purchased before the other 
 lots bought by the same purchaser, he is entitled to have the bid- 
 dings opened as to all the lots,((i) but the rule ought to be uni- 
 versal. Where several lots are sold to different purchasers, a 
 separate motion must be made to open the biddings for each lot ; 
 one motion to open all, although on an advance of a certain 
 sum for each lot, will not be permitted. (e) 
 
 17. If after 'the certificate is absolutely confirmed, the pur- 
 chaser sell to another, the second purchaser may be substituted in 
 the place of the first purchaser, although the first purchaser is 
 dead, and his heir is abroad.(/) 
 
 (x) Molesworth v. Opie, 1 Dick. 289. (6) Boyer v. Blackwell, 3 Ans. 657 ; Ex 
 
 (y) Kigby v. M'Namara, 6 Ve}. 466 ; parte Tilsley, 4 Mad. 227, n. ; 2 My. & 
 
 Ld. Macclesfield v. Blake, 8 Ves. 214; Cra. 726, 731. 
 
 Trefusis v. Clinton, 1 Ves. & Be. 361 ; (c) Bates v. Bonnor, 6 Sim. 380. 
 
 Chester v. Gorges, 2 Mol. 505. [d) Price v. Price, 1 Sim. & Stu. 386. 
 
 (z) Ld. Macclesfield v. Blake, ubi sup. ; (e) Goodall v. Pickford, 6 Sim. 379. 
 
 Owen V. Foulks, 9 Ves. 348 ; West v. Vin- (/) Pearce v. Pearce, 7 Sim. 138. [A 
 
 cent, 12 Ves. 6 ; Chapman v. Powler, 3 bidder may assign his bid, and a, deed to 
 
 Hare, 577 ; Filder v. BpUingham, 1 Col. N. the assignee passes the title. Campbell v. 
 
 C. 526, where interest was allowed. Baker, 6 Jones (Law), 255.] 
 
 (a) Vansittart v. James, 1 C. Coo. 379. 
 
 [119] 
 
170 
 
 OF EESCINDING THE SALE. 
 
 [CH. in. § II. 
 
 18. If a purchase be rescinded, and the purchaser has paid his 
 money into court, and it has been laid out upon his application, 
 he is to take bacii the stock, whether the funds have fallen or 
 risen since the investment.(g') 
 
 19. The authority which the court has over these contracts 
 enables it in a proper case to relieve the purchaser as well as the 
 suitor. Therefore, where the contract is inequitable, the pur- 
 chaser, on submitting to forfeit his deposit, will be discharged 
 from his purchase.(A) But otherwise a purchaser will not be 
 permitted to forfeit his deposit, and abandon the contract, how- 
 ever disadvantageous it may be.(A^) The persons who opened 
 the biddings for General Birch's estate were not * allowed to for- 
 feit their deposit, although the price was much beyond the value 
 of the estate. (i) .. 
 
 20. But where the purchaser has by mistake given an unrea- 
 sonable price for the estate, the court will in a proper case wholly 
 rescind the contract.(ii) In Morshead v. Frederick,(A;) Smiths, 
 
 (g) Hodder v. Euffin, V. C. 21 Mar. been surprise. Williamson v. Dale, 3 John. 
 
 1825, MS. ; Tompsett w. Wickens, 3 Sm. & Ch. 290. So wliere the party conducting 
 
 Gif. 171. the sale had been guilty of misrepresen- 
 
 (h) Savile v. Savile, 1 P. Wms. 745 ; 1 tations. Lachlan v. Eeynolds, Kay, 52. 
 
 Per. & Dav. 387 ; 9 Ad. & El. 520 ; Gregg See, also. Culver v. Godfrey, 6 Beav. 97, 
 
 V. Glover, 1 Ir. Eq. R. 211. [See Gardner 106, 1 10 ; Grissell v. Peto, 2 Sm. & G. 39. 
 
 V. Schermerhorn, 1 Clarke, 101 ; Tripp v. For other cases in which a sale will be set 
 
 Cook, 26 Wend. 143 ; Eeed o. Brooks, 3 aside and a resale ordered, see Millspaugh 
 
 Litt. 127 ; Hart v. Bleight, 3 Monroe, 273 ; v. McBride, 7 Paige, 509 ; Tripp v. Cook, 
 
 Gist V. Frazier, 2 Litt. 118.] 26 Wend, 143 ; Brown v. Frost, 10 Paige, 
 
 (Ai) [Wood V. Mann, 3 Sumner, 317.] 243 ; Amer. Ins. Co. v. Oakley, 9 Paige, 
 
 (i) MS. Sewel u. Johnson, Bun. 76. 259; Conoveru. Walling, 2 McCarter, 173 ; 
 
 [See Gardner w. Schermerhorn, 1 Clarke, anie, 117, n. (/i). Where land sold under 
 
 101 ; Tripp a. Cook, 26 Wend. 143 ; Reed a decree has been sacrificed by the neglect 
 
 V- Brooks, 3 Litt. 127 ; Hart v. Bleight, 3 or mistake of the master, the parties in- 
 
 Monroe, 273.] jured are entitled to a resale, or such other 
 
 (i'l) [A sale was set aside at the instance relief as can be given, without doing in- 
 
 of the purchaser on account of a serious justice to ftona^irfc purchasers. Amer. Ins. 
 
 mistake in the representation of the lands. Co. v. Oakley, 9 Paige, 259. A sale may 
 
 Gordon v. Sims, 2 McCord Ch. 159; be restrained where there is an attempt to 
 
 Laight V. Pell, 1 Edw. Ch. 577. So a make it under such circumstances as must 
 
 sale was set aside because the property was necessarily cause a sacrifice. McGown y. 
 
 knocked off to the purchaser prematurely, Sandford, 9 Paige, 290. Although the 
 
 by a mistake of the auctioneer, who did court will not in general set aside a sale 
 
 not hear a higher bid. Gordon v. Sims, 2 under its own decree, for mere inadequacy 
 
 McCord Ch. 159. See Anderson w. Foulke, ^ , , 
 
 2 Harr. & 6. 346 ; Campbell V. Gardner, 3 (h) Ch. 20 Feb. 1806, MS. App. to 
 
 Stockt. (N. J.) 423. So where there has Purch. ; Coote v. Coote, 2 Ir. Eq. R. 159. 
 
 [120] 
 
CH. III. § II.] OF RESCINDING THE SALE. 171 
 
 the bankers, were tenants in possession of a house, for which 
 they paid two rents, one a ground rent of 56/. to the defendant, 
 and the other an improved rent of 210/. to a third person. The 
 house was directed to be sold, under a decree ; and the plaintiffs, 
 by a broker, treated for the purchase of it, and employed him to 
 value it. The broker had an interview with the attorney con- 
 cerned in the sale, who stated, that the rent payable for the house 
 was the 56/., and the broker valued the estate accordingly. A 
 written agreement was not entered into, but the contract was 
 approved of by the master, and the money paid into the bank. 
 The purchasers then moved the court to rescind the contract on 
 the ground of mistake, and the broker proved that the purchasers 
 had not informed him of the rent of 210/. ; and that he was igno- 
 rant of the existence of it at the •time he made his valuation ; 
 and the court ordered the purchase money to be repaid, and re- 
 scinded the contract. This, however, may be considered a strong 
 case. It might be argued that the purchasers' only equity was 
 their own negligence. The party must not be guilty of delay 
 after the mistake is discovered (/). 
 
 21. Where a purchaser accepted the title, and paid his money 
 
 ' into court, but before the conveyance to him or the payment of 
 
 the money out of court, it was discovered that the abstract of a 
 
 will was incorrectly stated, and that the title was a bad one, the 
 
 court returned the money to the purchaser, (to) 
 
 of price (House v. Walker, 4 Md. Ch. 62 ; has misunderstood his liability. Gardner w. 
 ^shbee v. Co.well, 1 Bushbee Eq. (N. C.) Schermerhom, 1 Clarke, 101 ; Francis v- 
 158; Sowle v. Champion, 16 Ind. 165; Church, 1 Clarke, 475. But in case of 
 Glenn v. Clapp, 11 Gill & J. 11), yet it surprise, the court will not generally in- 
 will do so, when in addition to the in^d- terfere, where it is owing to the negligence 
 equacy of price, there has been accident, of the party complaining, and might have 
 mistake, fraud, or surprise, by which the been avoided by ordinary prudence and 
 property has been sacrificed beyond the attention on his part. Parkhurst v. Cory, 
 control of the party complaining. Eber- 3 Stockt. (N. J.) 233. A sale will not be 
 hart V. Gilchrist, 3 Stockt. (N. J.) 170; opened for a party who has notice of a suit, 
 Campbell v. Gardner, 3 Stockt. (IjT. J.) on any ground which might have been in- 
 423 ; Griffith v. Hadley, 10 Bosw. (N. Y.) terposed as a defence, unless the party was 
 587 ; Sowle u. Champion, 16 Ind. 165. prevented making it by fraud or mistake. 
 A sale will be opened and-a resale ordered Hall v. Urquhart, 3 Stockt. (N. J.) 318.] 
 when there is surprise upon any party in (I) Price u. North, 2 Yo. & Col. 620 ; 
 interest, created by the conduct of the pUr- [Hough v. Richardson, 3 Story, 659 ; Dog- 
 chaser or person directing the sale ; so gett v. Emerson, 3 Story, 700 ; Veazie v. 
 when the interests of infants are concerned Williams, 3 Story, 611.] 
 in opening the sale, or where a guarantor (m) M'Cullochu. Gregory, 3 Eq. R. 495. 
 
172 OF RESCINDING THE SALE. [CH. III. § II. 
 
 22. Although the solicitor in the cause buy in an estate merely 
 to prevent a sale at an undervalue, yet if he act without author- 
 ity, he will not be discharged from his purchase.(w) (1) 
 
 23. Where a person bought under the decree for another who 
 died without having adopted the contract, although an order nisi 
 to * confirm the purchase in his name had been obtained, the 
 court refused to order the executors of the purchaser to pay the 
 purchase money, and the heir declining the purchase, the order 
 nisi was set aside, and a resale ordered, and the consideration as 
 to any deficiency that might arise on the resale, and by whom 
 the costs of it were to be repaid, were reserved ; it was held that 
 the executors, in a purchase by their testator from the court, 
 could not be compelled by the heir to pay for the estate without 
 filing a bill.(o) 
 
 24. Where a purchaser dies before the certificate stands con- 
 firmed, upon a motion to open the biddings, it is only necessary 
 to serve his personal representatives. (p) 
 
 25. Where the sale by the court is by private contract, the 
 court will not treat it as if it had been by auction. If therefore 
 the matter was duly considered in the office, and there is no un- 
 dervalue, the purchase will not be opened in favor of a person 
 subsequently bidding higher ; {q) but although an advertisement 
 may describe the sale to be by private contract, yet if it is by 
 sealed tenders, subject to the approbation of the court, it may be 
 treated as a public sale, and the biddings may be opened. (r) 
 
 26. Where an extended estate was sold under the 25 Geo. 3, 
 c. 35, and the sale was confirmed by the remembrancer's report, 
 
 (n) Nelthorpe v. Pennymann, 14 Ves. (p) Templer v. Sweet, 8 Beav. 464. 
 
 517; feparteTomkins, Ch. 23Aug. 1816. (q) Millican v. Vanderplank, 11 Hare, 
 
 MS. App. No. 8, Purch. ; Ex parte Lucas, 136. 
 
 1 Mon. & Ay. 93. (r) Barlow v. Osborne, 6 H. L. Cas. 
 
 (0) Lord V. Lord, 1 Sim. 503. 556. 
 
 (1) A singular case came before Lord Eldon. A young country solicitor was de- 
 clared the purchaser before the master, of an estate sold by the order of the court ; 
 he presented « petition to the court praying to be discharged from the purchase, sup- 
 ported by affidafit ; he stated that he had no means of paying for the property, that 
 he came to town to learn practice, and being present at the sale, in order to under- 
 stand the process, he put down bids like the other bidders present, and to his great 
 surprise was declared the buyer. Lord Eldon had some difficulty in retaining his 
 gravity whilst he discharged him from the purchase upon his paying the costs which 
 he had put the parties to. 
 
 [121] 
 
CH. m. § 11.] OF RESCINDING THE SALE. 173 
 
 and the usual orders, but a good title could not be made, the 
 court of exchequer, upon the motion of the crown, discharged 
 the purchaser without payment to him of any" costs incurred in 
 investigating the title, or in procuring the reports.(s) 
 
 (s) Rex V. Cracroft, 1 M'Clel. & Yo. 460. 
 
CHAPTER IV. 
 
 OF PAROL AGREEMENTS : GENERAL CONSTRUCTION OF STATUTE. 
 
 SECTION I. 
 
 1. Construction of first section. 
 
 2. Construction of fourth section. 
 
 3. Statute of 8 & 9 Tict. 
 
 4. Parol license valid. 
 
 5. Void agreement may operate as a license. 
 
 It is enacted by the statute of frauds, that " all leases, estates, 
 interests of freeholds, or terms of years, or any uncertain inter- 
 est of, in, or out of any messuages, manors, lands, tenements, or 
 hereditaments, made and created by livery and seisin only, or by 
 parol, and *not put in writing by the parties so making or cre- 
 ating the same,(a) or their agents thereunto lawfully authorized 
 by writing, shall have the eflf'ect of leases or estates at will, any 
 consideration for making any such parol leases or estates not- 
 withstanding."(6) But, nevertheless, leases not exceeding three 
 years, whereupon the reserved rent should amount to two thirds 
 of the full improved value, were excepted. (c) The assignment, 
 grant, and surrender of existing interests are to be made by writ- 
 ing; (d) and (e) " no action shall be brought, whereby to charge 
 any person upon any agreement made upon any contract, or sale 
 of lands, tenements, or hereditaments, or any interest in or con- 
 cerning them,(l) unless the agreement upon which such action 
 shall be brought, or some memorandum or note thereof, shall be 
 
 (o) Now by deed ; see pi. 3. 
 (6) 29 Car. 2, c. 3, s. 1. 
 (c) Sect. 2. 
 
 {d) Sect. 3. 
 
 (e) Sect. 4; now by deed; see pi. 3. 
 
 (1) " Or npon any agreement not to be performed within a year;" which clause 
 does not extend to any agreement concerning lands. Hollis v. Edwards, 1 Ver. 159. 
 It is quite clear that an agreement for sale of lands must be in writing, although the 
 contract is to be performed the next day. See Bracebridge v. Heald, 1 Bar. & Aid. 722. 
 
 [122] 
 
CH. IV. § I.J GENERAL CONSTEUCTION OF STATUTE. 175 
 
 in writing, and signed by the party to be charged therewith, or 
 some other person thereunto by him lawfully authorized." (e^) 
 
 We may consider — 1. What interests are within the stat- 
 ute; 2. What is a sufficient agreement; 3. What agreements 
 will be enforced, although by parol ; and, 4. Where parol evi- 
 dence is admissible to vary or annul written instruments, merely 
 premising that advantage may be taken of the statute by de- 
 murrer.(/) 
 
 1. The first section seems to be coextensive. with the fourth, 
 and, consequently, every interest which is within the fourth sec- 
 tion is equally within the first,, unless it come within the saving 
 of the second section. The first and second sections appear to 
 enact, that all interests actually created without writing shall be 
 void, unless in the case of a lease not exceeding three years (at 
 nearly rack-rent). If an estate, of whatever value, should be 
 conveyed to a purchaser by livery of seisin, without writing, the 
 act would avoid the estate, although the purchaser had paid his 
 money. An actual lease for any given number of years, whether 
 with or without rent, or any interest uncertain in point of dura- 
 tion, must, it should seem, equally fall within the provision of 
 the first section, and cannot be sustained unless it come within 
 the .saving in the second section. (§■) 
 
 2. This, however, of itself would not have prevented all the 
 evils which the act intended to avoid, for although actual estates 
 could not be created, yet still parol agreements might have been 
 entered into respecting the future creation of them. To remedy 
 this mischief, * the provision in the fourth section was inserted, 
 
 (el) [An agreement for the sale of land Scam. 209 ; Lefferson v. Dallas, 20 Ohio 
 
 is not utterly void by the statute of frauds ; St. 74 ; Hunter v. Bales, 24 Ind. 299.] 
 
 and, therefore, a party who advances (/) Wood v. Midgley, 5 De G., M. & G. 
 
 money on such contract, cannot recover it 41; [Qozine v. Graham, 2 Paige, 177; 
 
 back, while the other party is able and Walter v. Locke, 5 Cush. 90, 93 ; 1 Dan. 
 
 willing to fulfil the contract on his part. Ch,Pr.(4thAm.ed.),561,andcasesinnote 
 
 Coughlin V. Knowles, 7 Met .57 ; Congdon (2) ; Barkworth v. Young, 1 Drew. 1, 9 ; 
 
 V. Perry, 13 Gray, 3 ; Duncan v. Baird, 8 Eummens u. Eobins, 11 Jnr. N. S. 631 ; 3 
 
 Dana, 101 ; Lane v. Shackford, 5 N. H. De G., J. & G. 88.] 
 
 133 ; Shaw v. Shaw, 6 Vt. 75; Oldham v. {g) Crosby v. Wadsworth, 6 East, 610 ; 
 
 Sale, 1 B. Mon. 78; Sims m. Hutchins, 8 Ld. Bolton v. Tomlin, 5 Ad. & El. 857, 
 
 Sm. & M. 328 ; Collier v. Coates, 17 Barb, for the extent of the second section ; as to 
 
 471 ; Cobb v. Hall, 29 Vt. 510; Mack v. the first section, Cooch v. Goodman, 2 Q. 
 
 Bragg, 30 Vt. 357 ; Doe v. Cochran, 1 B. 596. 
 
 [123] 
 
176 PAROL LICENSE. [CH. IV. § I. 
 
 which relates not to contracts or sales of land, &c., but to any 
 agreement made upon any contract or sale of lands, &c., and as 
 agreements were more to be dreaded than contracts actually ex- 
 ecuted, no exception was inserted after the fourth section, simi- 
 lar to that which follows the first section, and consequently an 
 agreement by parol, to create even such an interest as is ex- 
 cepted in the second section, would be merely void. In some 
 cases this branch of the fourth section has been read as a dis- 
 tinct clause, dropping the word " agreement," and then the clause 
 runs thus, " no action to be brought upon any contract or sale of 
 lands," &c.(/t) The statute says, no action to be brought " to 
 charge any person upon any agreement made upon any consid- 
 eration of marriage or upon [any agreement made upon] any 
 contract or sale of lands." The words between crotchets should 
 be implied, or the prior words should be held to override both 
 parts of the clause. 
 
 3. Now by statute a feoffment, except one made under a cus- 
 tom by an infant, is made void in law, unless evidenced by deed ; 
 and a. partition and exchange (except of copyhold) and a lease 
 required by law to be in writing, and an assignment of a chattel 
 interest (not being copyhold), and a surrender in writing of an 
 interest in any hereditament not being a copyhold, and not being 
 an interest which might by law have been created without writ- 
 ing, will be void in law unless made by deed ; {i) but this does 
 not extend to Ireland as far as relates to a release or surren- 
 der. (4) 
 
 \ 
 
 4. A mere license was held in Wood v. Lake (/) not to be 
 
 (A) Anon. 1 Vent. 361 ; 6 East, 11 ; Mi- 397 ; Phipps v. Sculthorpe, 1 B. & Aid. 
 
 chelson v. Wallace, 1 Nev. & Per. 224 ; 50 ; Thomas v. Cook, 2 Star. 408 ; 2 B. 
 
 Charlwood v. Duke of Bedford, 1 Atk. 497 ; & Aid. 119; Dodd v. Acklom, 5 M. & G. 
 
 Hollls V. Edwards, 1 Ver. 159; 7 Ad. & 672; Cannan u. Hartley, 9 C. B. 634; 
 
 El. 49. Davison v. Gent, 1 H. & N. 744 ; infra, ch. 
 
 (i) Tupper v. Eoulkes, 9 C. B. N. S. 12, ». 4. 
 
 797, for what amounts to a delivery. (/) Say. 3 ; Winter v. Brockwell, 8 East, 
 
 (A;) 8 & 9 Vict. c. 106, s. 3; the word 308; Rex v. Tnhab. of Standon, 2 Man. & 
 
 release in this section seems to relate to s. Sel. 461 ; Tayler v. Waters, 2 Mars. 551 ; 
 
 2; post, ch. 12, s. 4 ; 7 & 8 Vict. u. 76, s. 7 Taunt. 374; Wood v. Manley, 11 Ad. & 
 
 3, and observe its duration. Mollet v. El. 34 ; Rex v. Inhab. of Horndon, 4 Mau. 
 
 Brayne, 2 Cam. 103 ; Stone v. Whiting, 2 & Sel. 562 ; Cocker v. Cowper, 1 Cro,, Me 
 
 Star. 235 ; Thomson v. Wilson, 2 Star. & Eo. 418. 
 
CH. IV. § I.j PAROL LICENSE. 177 
 
 within the first section of the statute of frauds.(^i) A parol 
 .agreement was entered into for liberty to stack coals on part of 
 a close for seven years, and that during this term the grantee 
 should have the sole use of that part of the cfose,(l) and the 
 court held the agreement to be good. They relied upon the case 
 of Webb and Paternoster (mj * where they said it is laid doyvn, 
 that a grant of a license to stack hay upon land, does not 
 amount to a lease of the land. The writer thought that the 
 case in Palmer did not bear out the judgment in Wood and 
 Lake. In the latter case the plaintiff was to have the sole use of 
 the land upon which he should stack his coals. That could not 
 safely be distinguished from an actual demise, and the statute 
 extends generally to all leases, estates, or interests. The case 
 was however followed in several recent cases. But in the case 
 of Wood V, Leadbitter,(w) it was held that no incorporeal inher- 
 itance, or for life or years, affecting land, can be created without 
 deed,(ra^) and that a mere license is revocable, although granted 
 
 , /<P) [A license to do a certain act or R. Co. 6 Hill, 61 ; Dark v. Johnston, 55 
 /iferiesof acts on th« land of ano'ther, does Pena. St. 164 ; Chitty Contr, (10th Am. 
 not convey any interest in the land, but ed.), 326, & note (r) ; Williams t/. Jones, 
 simply a privilege to be exercised npon the 3 H. & C. 256; Cheever ». Pearson, 16 
 land. It may .be either written or oral. Pick. 273 ; Yeakle v. Jacob, 33 Penn. St. 
 The statute of frauds does not apply to 376 ; Foot v. The New Haven & North- 
 such a license in either form. Being ampton R. R. Co. 23 Conn. 214; Ex 
 founded in personal confidence, it is not parte Coburn, I Cowen, 368.] 
 assignable, and it is gone, if the owner of (m) Palm. 71. 
 
 the land who gives the license transfers his (n) 13 M. & W. 838 ; Perry v. Pitzhowe, 
 title to another, or if either party dies. 3 8 Q. B. 757 ; RofFey v. Henderson, 17 Q. 
 Kent (11th ed.), 452; Houston v. Laffee, B. 574; Wallis v. Harrison, 4 M. & W. 
 46 N. H. 505 ; Carleton u. Redington, 21 538 ; paix)l license will not bind the in- 
 N. H. 305, 306 ; Cowles v. Kidder, 24 N. heritance and run with the land. Taplin 
 H. 364; Harris u. Gillingham, 6 N. H. 11 ; u. Florence, 10 C. B. 744, license to an 
 Putney v. Day, 6 N. H. 430 ; Seidenspar- auctioneer to sell on the property of 
 ger V. Spear, 17 Maine, 123; Weston J. another, revocable; Frogley u. Ld. Love- 
 in Erskine v. Plummer, 7 Greenl. 451 ; lace, 1 Johns. 333. 
 
 Ruggles V. Lesure, 24»Pick, 187 ; Cook v. {n^ [A permanent interest in another's 
 
 Stearns, 11 Mass. 533; Stevens w. Stevens, land with a right to enjoy it fully and 
 
 11 Met. 255 ; Claflin v. Carpenter, 4 Met. without' obstruction, such as an easement, 
 
 583 ; Drake v. Wales, 11 Allen, 144 ; Giles must be founded upon a deed or writing, 
 
 V. Simonds, 15 Gray, 441 ; Carter v. Har- or upon prescription which supposes one. 
 
 Ian, 6 M<i. 20 ; Bridges v. Purcell, 1 Dev. No such right or interest in real estate can 
 
 & Bat 492 ; Miller v. Auburn & Syr. R. be created without deed. Morse v. Cope- 
 
 (1) Sayer is but an inaccurate reporter. It is not stated, but the fact is, that an 
 annual payment was reserved in respect of the easement. 
 
 VOL. I. 12 [124] 
 
178 PAEOL LICENSE- [CH. IV. § I. 
 
 by deed and for a price paid.(n^) It was doubted whether the 
 license in Webb v. Paternoster was not under seal, but the sev-. 
 
 land, 2 Gray, 302, 30g ; Stevens v. Stevens, 
 11 Met. 251 ; Cook v. Stearns, 11 Mass. 
 533 ; Carleton v. Eedington, 21 N. H. 291 ; 
 Marston v. Gale, 24 N. H. 176 ; Houston 
 V. Laffee, 46 N, H. 505; Mumford v. 
 Whitney, 15 Wend. 380; Prince v. Case, 
 10 Conn. 375; Seidensparger ». Spear, 17 
 Maine, 123 ; Moulton v. Faught, 41 Maine, 
 298; Barnes v. Barnes, 6 Vt. 388; Sel- 
 den J. in Selden u. Delaware & Hudson 
 Canal Co, 29 N. Y. 634, 639 ; Carter v. 
 Harlan, 6 Md. 20; Chitty Contr. (10th 
 Am. ed.) 326, 327 ; Huff v. McCauley, 53 
 Penn. St. 206 ; Dark v. Johnston, 55 
 Penn. St. 164; Williams v. Jones, 3 H. C. 
 256; 2 Amer. Lead. Cas. (4th ed.) 757, 
 et seg. and cases cited; Pitman v. Poor, 38 
 Maine, 237 ; Woodward v. Seely, 1 1 III. 
 157; Holland v. Hensley, 4 Iowa, 222; 
 Eggleston v. The New York & Harlem R, 
 E. 35 Barb. 163; Ela v. Pennock, aS N. 
 H. 154.] 
 
 {n^} [McCrea v. Marsh, 12 Gray, 211 ; 
 Burton v. Scherpf, 1 Allen, 133 ; 2 Am. 
 Lead. Cas. (4th ed.) 736, 737; Huifw. Mc- 
 Cauley, 53 Penn. St. 206 ; Dark v. John- 
 ston, 55 Penn. St. 1 64 ; Simpkins v. Rogers, 
 15 111. 397; Woodward u. Sulez, 11 111. 
 157 ; Ex parte Coburn, 1 Cowen, 368 ; 
 Mumford v. Whitney, 15 Wend. 380; 
 Hays V. Richardson, 1 Gill & J. 366. Such 
 a license may be terminated at the will of 
 the licensor. Houston u. Laffee, 46 N. H. 
 505, 507 ; Carleton v. Bedington, 21 N. H. 
 291; Marston ^. Gale, 24 N. H. 176; 
 Buggies V. Lesure, 24 Pick. 187, 190; 
 Stevens v. Stevens, 11 Met. 251 ; Wood v. 
 Edes, 2 Allen, 578 ; Giles v. Simonds, 1 5 
 Gray, 441 ; Drake v. Wales, 11 Allen, 
 144; Cook u. Stearns, 11 Mass. 533; Ba- 
 ker u. Wheeler, 8 Wend. 505 ; Wolfe v. 
 Frost, 4 Sandf. Ch. 72; Beidclman u. 
 Foulke, 5 Watts, 308 ; Foot v. New Haven 
 & Northampton R. K. Co. 23 Conn. 214; 
 Morse v. Copeland, 2 Gray, 302 ; Owen v. 
 Field, 12 Allen, 457 ; Bridges v. Purcell, 
 1 Dev. &. Bat. 492 ; Selden v. Delaware & 
 
 Hudson Canal Co. 29 N. Y. 634 ; Miller 
 V. Auburn & Syr. E. E. Co. 6 Hill, 61 ; 
 Hall V. Chaffee, 13 Vt. 150; Prince v. 
 Case, 10 Conn. 375; Cowles v. Kidder, 
 24 N. H. 364. And although the licensee 
 may have incurred expense upon the faith 
 of the license, this does not destroy its rev- 
 ocable character. Adams v. Andrews, 15 
 Q. B. 284. A license may terminate with- 
 out any act of revocation on the part of 
 the licensor; as where permission was 
 given to erect a dam for a temporary pur- 
 pose, it was held to have terminated by a 
 decay of the dam. Hepburn v. M'Dowell, 
 17 Serg. & E. 383; CarJeton v. Eedington, 
 21 N. H. 307; Cowles v. Kidder, .24 N. H. 
 364 ; Ameriscoggin Bridge v. Bragg, 11 N. 
 H. 102. It expires with the period of 
 time for which it was given. Glynn v. 
 George, 20 N, H. 114 ; Gilmore v. Wilson, 
 53 Penn^ St. 194 ; 2 Am. Lead. Cas. (4th 
 ed.) 770, 771. But it furnishes a defence 
 to an action of trespass for acts fairly 
 done in the exercise of it until revoked, 
 or otherwise legally terminated. In thi.9 
 sense and to this extent it is irrevocable, 
 so far as it has been executed or acted 
 upon without objection. See cases above 
 cited; Angell Watercourses (6th ed.), § 
 288 ; Lee v. Meeker, 2 Wise. 487 ; Syron 
 V. Blakeman, 22 Barb. 336 ; Collins Co. w. 
 Marcy^25 Conn. 239; Cheeverr. Pearson, 
 16 Pick. 273 ; Jamieson v. Milleman, 3 
 Duer (N. Y.), 255; Mumford v. Whitney, 
 15 Wend. 380 ; 2 Am. Lead. Cas. (4th ed.) 
 748; Driseoll a. Marshall, 15 Gray, 63, 
 64 ; Pratt v. Ogden, 34 N. Y. 20 ; Weston 
 J. in Erskine v. Plnmmer, 7 Greenl. 451 ; 
 Seidensparger v. Spear, 17 Maine, 123; 
 Chitty Contr, (10th Am. ed.) 626, note (r), 
 and cases cited; post, 125, note (m) ; Whit- 
 marsh V. Walker, 1 Met. 313 ; Marston v. 
 Gale, 24 N. H. 176 ; Buggies v. Lesure, 24 
 Pick. 187; Wilson v. Chalfant, 15 Ohio, 
 248. As to the extent to which an executed 
 license is ii-revocable, see post 126, note 
 (n) ; Giles v. Simonds, 15 Gray, 443, 
 
CH. IV. § I.] 
 
 PAROL LICENSE. 
 
 179 
 
 eral reports of that case do not seem to justify that doubt, and it 
 has always beert treated as a case of parol license. Wood v. 
 
 444; Drake v. Wales, U Allen, 141; 
 Cheever v. Pearson, 16 Pick. 273. In 
 Morse v. Copeland, 2 Gray, 302, 305, Mr. 
 Justice Metcalf said : " The authorities 
 referred to show that the rule, sometimes 
 laid down in the books, that a license exe- 
 cuted cannot be countermanded, is not 
 applicable to licenses, which, if given by 
 deed, would create an easement ; but to 
 licenses, which, if given by deed, would 
 extinguish or modify an easement. They 
 also show that the distinction, sometimes 
 taken in the books, between a license to do 
 acts on the licensee's own land, and a 
 license to do acts on the licensor's land, is 
 the same distinction that is made between 
 licenses, which, if held valid, would create, 
 and licenses which extinguish or modify an 
 easement." And he also states it as a rule of 
 law, that an " easement, whether acquired 
 by known grant or prescription, may be 
 extinguished, renounced, or modified, by a 
 parol license granted by the owner of the 
 dominant tenement, and executed by the 
 owner of the servient tenement," upon the 
 servient tenement. Curtis v. Noonan, 10 
 Allen, 409 ; see Dyer v. Sanford, 9 Met. 
 402 ; Addison v. Hack, 2 Gill, 221 ; Foot 
 V. New Haven & Northampton Co. 23 
 Conn. 214; Bathbone v. McConnell, 20 
 Barb. (N. Y.) 311 ; Jamieson v. Milleman, 
 3 Duer, 255 ; Carter v. Harlan, 6 Md. 20 ; 
 Fuhr V. Dean, 26 Missou. 116; Hazleton w, 
 Putnam, 3 Chand. fWis.) 117; 2 Amer. 
 Lead. Cas. (4th ed.) 765. In the above case 
 of Morse v. Copeland, 2 Gray, 302, it ap- 
 peared that the owner of a mill privilege 
 gave the owner of lands flowed thereby, an 
 oral license to erect a dam on the land of 
 the licensee, and also to dig a ditch across 
 the land of the licensor to drain the water 
 from part of the licensee's land ; and under 
 this license the dam was erected and the 
 ditch dug; audit was held that the licensor 
 could revoke the license to dig the ditch, 
 even after the expiration of twenty years, 
 but could not revoke the license to build 
 
 the dam ; and the licensor having under- 
 taken to revoke the whole license, and, 
 after notice to the licensee, made an incis- 
 ion in the dam, that the licensee was justi- 
 fied in making a ditch on his own land, to 
 draw off the water so thrown upon it, 
 although he thereby diverted the water 
 from the licensor's mill-pond also. See 
 Stevens v. Stevens, 11 Met. 251 ; Brown «. 
 Bowen, 30 N. Y. 519. As to parol license 
 to enter on land and lay down aqueduct 
 logs, with license to enter from time to 
 time to repair the same, see Sampson v. 
 Burnside, 13 N. H. 264 ; Houston v. Laf- 
 fee,46 N. H. 505 ; Owen«. Field, 12 Allen, 
 457. As to a license to insert beams in the 
 wall of a house, see McLarney v. Petti- 
 grew, 3 E. D. Smith (N. Y.), 111. As to 
 the effect of the revocation of a license 
 upon the faith of which a party has ex- 
 pended money, or otherwise acted, and his 
 remedy, if any, see Houston v. LaflFee, 46 
 N. H. 505, 507, 508 ; "Wilson v. Chalfant, 
 15 Ohio, 248; Addison v. Hack, 2 Gill, 
 221 ; Fuhr v. Dean, 26 Missou. 116 ; Foot 
 V. New Haven, &c. Co. 23 Conn. 214, 223 ; 
 Wingard v. Taft, 24 Geo. 179 ; Foster v. 
 Browning, 4 R. I. 47 ; Collins Co. v. 
 Marcy, 25 Conn. 239 ; Morse v. Copeland, 
 2 Gray, 302 ; Hall v. Chaffee, 13 Vt. 150 ; 
 Curtis V. Noon^, 10 Allen, 406 ; Ameris- 
 coggin Bridge ». Bragg, 11 N. H. 102; 
 Giles V. Simonds, 15 Gray, 443, 444; 
 Kicker v. Kelly, 1 Grecnl. 117; Clement v. 
 Durgin, 5 Greenl. 9 ; 2 Amer. Lead. Cas. 
 (4th ed.) 757. There appears to be no 
 doubt that, in equity, licenses executed 
 are taken out of the statute of frauds, and 
 that relief may be had in equitable tribunals 
 by the licensee against an action at law. 
 The decisions of courts of equity on that 
 statute proceed upon the principle, not that 
 the right passes by parol license or agi-ee- 
 ment, but that wherever one party has ex- 
 ecuted it, by payment of money, taking 
 possession, and making valuable improve- 
 ments, the conscience of the other is bound 
 
180 
 
 PABOL LICENSE. 
 
 [CH. IV. § I. 
 
 Lake was not considered an authority. (m^) This view is wholly 
 independent of the question on the statute of frauds,(w*). and in- 
 deed, in cases like Webb v. Paternoster, and Wood v. Lake, 
 renders it unnecessary to consider that question. Such a license 
 cannot be transferred. (o) 
 
 5. An agreement under the fourth section which cannot be en- 
 forced on either side, is a contract void altogether, and yet may 
 have, as an agreement, some operation in communicating a 
 license so as to excuse what would otherwise be a trespass, but 
 such license would be countermandable.(^) 
 
 to carry it into execution ; and equity will 
 compel him to do it. See Le Fevre v. Le 
 Fevre, 4 S. & R. 241 ; M'Kellip v. M'll- 
 henny, 4 Watts, 317; Huff «. McCauley, 
 53 Peun. St. 206 ; Houston o. Laffee, 46 
 N. H. 507, 508 ; Wood v. Edes, 2 Allen, 
 578, 581; Angell Watercourses (6th ed.), 
 § 318, et seg.; Hulme «. Shreve, 3 Green 
 (N. J.) Ch. 116; Dark v. Johnston, 55 
 Penn. St. 164; Hepburn v. M'Dowell, 17 
 S. & R. 383 ; Swartz v. Swartz, 4 Barr. 
 353; Rerick v. Kern, 14 S. & R. 267; 
 Lacy u. Arnett, 33 Penn. St. 169; Amer- 
 iscoggin Bridge v. Bragg, 11 N. H. 102; 
 Snowdeu v. Wilas, 19 Ind. 14 ; Stephens 
 V. Benson, 19 Ind. 369 ; Wickersham v. 
 On; 9 Iowa, 260 ; Beatty v. Gregory, 17 
 Iowa, 114; Pope v. Hay, 24 Vt. 560; 
 Miller v. Tobie, 41 N. H. 84 ; Wetmore 
 V. White, 2 Oaines Cas. Er. 77 ; Lane v. 
 Miller, 27 Ind. 534; 2Amer. Lead. Cas. 
 (4th ed.), 754, 755. In equity the doctrine 
 of acquiescence applies as well where a 
 manhas been induced to expend moneys on 
 the land of another, as where the expendi- 
 ture has been on his own land. Duke of 
 ■Devonshire v. Eglin, 14 Bear. 530 ; Duke 
 of Beaufort v. Patrick, 17 Beav. 60; 
 White V. Wakley, 26 Bear. 20 ; Laird v. 
 Birkenhead Railway Co. Johns. 500; 
 Fisher v. Moon, 11 L. T. N. S. 623; 
 
 Curtis V. Noonan, 10 Allen, 406 ; see Foot 
 V. New Haven & Northampton R. R. Co. 
 23 Conn. 214; 2 Amer. Lead. Cas. (4th 
 ed.), 761, et seq. The whole subject of 
 licenses is exhaustively discussed in An- 
 gell Watercourses (6th ed.), §§ 28.5-329; 
 and in 2 Am. Lead. Cas. (4th ed.) 728- 
 777. See3 Kent (nth ed.), 452, 453.] 
 
 {rfi) [See, also. Bridges v. Purcell, 1 
 Dev. & Bat. 492 ; Hays v. Richardson, 1 
 Gill & J. 366 ; Ricker v. Kelley, 1 Greonl. 
 117 ; Clement v. J)urgin, 5 Greenl. 9, 13 ; 
 Miller v. Auburn & Syr. R. R. Co. 6 Hill, 
 61; 3 Kent (11th ed.), 453; Stevens v. 
 Stevens, 11 Met. 255, 256; Sampson ;;. 
 Burnside, 13 N. H. 266 ; Prince u. Case, 
 10 Conn. 375; Leland n. Gassett, 17 Vt. 
 403; Harris u. Miller, 1 Meigs, 158; An- 
 gell Watercourses (6th ed.), §§ 287, 298.] 
 
 (n*) [See Claflin v. Carpenter, 4 Met. 
 580, 583 ; Whitemarsh v. Walker, 1 Met. 
 313 ; ante, 123, note (l^).] 
 
 (o) Coleman v. Foster, 1 H. & N. 37 ; 
 [Dark v. Johnston, 55 Penn. St. 164; 
 Carleton v. Redington, 21 N. H. 291 ; 
 Cowles V. Kidder, 24 N. H. 364 ; Fuhr v. 
 Dean, 26 Missoa. 116 ; ante, 123, note (P) ; 
 Hays V. Richardson, 1 Gill & J. 366.] 
 
 (p) Carrington u. Roots, 2 M. & W. 
 257 ; Winter v. Brockwell, 8 East, 308 ; 
 Crosby v. Wadsworth, 6 East, 602. 
 
CH. IV. § II.] OF THE SALE OF STANDING CROPS. 
 
 181 
 
 SECTION II. 
 
 OF THE FOURTH SECTION. 
 
 1. Extends to interests created de novo. " 
 3. Exclusive right to vesture within it. — 
 Growing crops, as grass. — Or grow- 
 ing poles, underwood, tijuber. 
 
 5. But not wheat. 
 
 6. Nor trees sold as wood. 
 
 7. Nor potatoes. — Turnips. — Hops. — 
 
 Crops between tenants. — Fixtures. 
 
 8. But void sale, if executed, binding. 
 
 9. Mining company shares within fourth 
 
 section. — Not railway shares. 
 10. Entire parol agreement for realty and 
 personalty wholly void. 
 
 1. The fourth section of the act extends as well to interests 
 created de novo out of an estate, as to subsisting interests; 
 therefore * an agreement for an assignment of a lease will not be 
 binding, unless made in writing.(a) So an agreement to de- 
 liver up possession to the purchaser of property held from year 
 to year, amounting to a sale, is an interest within this section. (Z>) 
 But if one party has performed the contract, and the other has 
 accepted such performance, the objection that the agreement 
 was not in writing, cannot be supported ; it is not like a case 
 in which it is attempted to enforce a parol agreement.(c) 
 
 2. If a man, having agreted verbally to buy an estate, agree 
 by writing to sell the benefit of his contract to another who act- 
 ually obtains a conveyance from the original seller, the transfer 
 will be a sufficient consideration for the promise, and the first 
 purchaser may recover the sura agreed to be paid for the trans- 
 fer, (d) 
 
 3. An actual interest agreed to be granted in land of course 
 falls within the fourth section, and requires a written agreement. 
 If an agreement profess to give an exclusive right to the vesture 
 of land during a given period, that is an interest concerning lands 
 within the fourth section, and therefore an agreement to sell a 
 
 (o) Anon. 1 Vent. 361 ; see Poultney v. 
 Holmes, 1 Str. 405 ; [Hunt v. Coe, 15 Iowa, 
 ' 197. An agreement by a tenant at will, 
 to assign or surrender his interest, is not 
 within the statute of frauds. Whittemore 
 V. Gibbs, 24 N. H. 484.] ^ 
 
 (b) Smart v. Harding, 15 C. B. 652. 
 
 (c) Lavery v. Turley, 6 H. & N, 239 ; 
 [post, 126, n. (y).] 
 
 (d) Seaman v. Price, 1 Ey. & Moo. 195. 
 
 [A written or oral agreement to convey 
 land may be assigned by an (jral agree- 
 ment. Currier v. Howard, 14 Gray, 511 ; 
 Brown v. Jones, 46 Barb. 400 ; see Simms 
 V. Killian, 12 Ired. 252 ; Bullion v. Camp- 
 bell, 27 Texas, 653. But an agreement to 
 procure another to convey land, is within 
 the statute. Gray v. Patton, 2 B. Mon. 12. 
 But see contra,, Bannon v. Bean, 9 Iowa, 
 395.] 
 
 [125] 
 
182 
 
 OF THE SALE OF STANDING CROPS. [CH. IV. § II. 
 
 growing crop of mowing grass, to be mowed and made into hay 
 by the purchaser, requires a written agreement.(e) So where 
 such an exclusive right is not given, yet an agreement to sell a 
 crop which would not go as emblements to an executor, e. g. a 
 crop of grass, can only be bound by a yrritten contract ;(/) 
 which applies equally to a sale of growing poles,(g-) or of stand- 
 ing underwood,(A) and of course therefore of timber.(i) 
 
 4. Where a farm was let by parol, and the tenant was to take 
 the growing crops and pay for them, and also for the work, labor, 
 and materials, in preparing the land for tillage, it was held that 
 the case fell within the fourth section.(A;) 
 
 5, But any crop which would be emblements, and might be 
 taken in execution, for example, wheat, may be considered goods 
 and chattels, and therefore not within the fourth section. (/) 
 
 (e) Crosby v. "Wadsworth, 6 East, 602 ; 
 Carrington v. Roots, 2 M. & W. 248; 
 Jones ». Flint, 10 Ad. & El. 753 ; [Buck v. 
 Pickwell, 27 Vt. 1 57. The case of Crosby 
 V. Wadsworth, was qnestioned in Frear v. 
 Plardenburg, 5 John. 272 ; see also Mum- 
 ford .-. Whitney, 15 Wend. 386, 387; 
 Cutler V. Pope, 13 Maine, 379, 380. In 
 this last case it was held that grass already 
 grown and in condition to be cut may be 
 sold by parol. See Griffith v. Puleston, 
 U L. J.N. S. (Exch.) 33.] 
 
 (/) Evans v. Bobercs, 5 B. & C. 829 ; 
 Smith V. Surman, 9 B. & C. 566 ; Graves 
 o. Weld, 5 B. & Ad. 105 ; [per Bennett J. 
 in Buck v. Pickwell, 27 Vt. 157, 163. So 
 growing fruit. Eodwell v. Phillips, 9 M. & 
 W. 501.] 
 
 (g) Teall v. Auty, 4 Moo. 542. 
 
 (h) Scorell v. Boxall, 1 Yo. & Jer. 396. 
 
 (i) Rhodes v. Baker, 1 Xr. C. L. R. 488 ; 
 [Hutching v. King, 1 Wallace (U. S.), 53 ; 
 Pierrepont v. Barnard, 5 Barb. 364 ; Green 
 V. Armstrong, 1 Denio, 550; Putney v. 
 Day, 6 N. H. 439 ; Buck v. Pickwell, 27 
 Vt. 157 ; Olmstead v. Miles, 7 N. H. .522 ; 
 Kingsley v. Holbrook, 45 N. H. 313.] 
 
 (h) Ld. Falmouth v. Thomas, 1 Cro. & 
 Mee. 89; 1 Atk. 175; Poulter v. Killing- 
 beck, 1 Bos. & Pul. 397 ; 6 East, 613 ; 
 Mayfield v. Wadsley, 3 B. & C. 357. 
 
 (/) 3 B. & C. 364 ; [Buck v. Pickwell, 
 
 27 Vt. 157 ; Dunne v. Ferguson, 1 Hayes, 
 541 ; Bryant v. Crosby, 40 Maine, 9 ; 
 Bricker v. Hughes, 4 Ind. 146 ; Sherry v. 
 Picken, 10 Ind. 375; Marshall v. Fergu- 
 son, 23 Cal. 65 ; Chitty Contr. (10th Am. 
 ed.) 326. Wheat growing is a mere 
 chattel, and the property in it will, there- 
 fore, pass by parol, and without writing ; 
 the statute of frauds, respecting the sale 
 of an interest in land, not applying to such 
 a case. Austin v. Sawyer, 9 Cowen, 39; 
 Whipple V. Foot, 2 John. 422 ; Stewart v. 
 Doughty, 9 John. 1 12. An agreementfor 
 the sale of mulberry-trees, growing in a 
 nursery and raised to be sold and trans- 
 planted, to be delivered on the ground 
 where they are growing, upon payment 
 therefor being made, is not a contract for 
 a sale of an interest in or concerning lands, 
 &c., within the statute of frauds in Massa- 
 chusetts.' Whitmarsh v. Walker, 1 Met. 
 313 ; Miller v. Baker, 1 Met. 27. See Mum- 
 ford V. Whitney, 15 Wend. 380; Adams 
 V. Smith, Breese, 221 ; Kingsley v. Hol- 
 brook, 45 N. H. 319 ; Bull v. Griswold, 19 
 111. 631. In Buck'u. Pickwell, 27 Vt. 157, 
 163, Bennett J. remarked : "It may, per- 
 haps, with some degree of certainty be 
 said, that at the present day a contract 
 for the sale of growing crops, produced 
 annually by labor and the cultivation of 
 the earth, and which are included within 
 
CH. IV. § II.J OF T'HE SALE OF STANDING CROPS. 
 
 183 
 
 6. So an agreement to sell standing timber, as trees, at so 
 much a foot, which the proprietor had begun to cut down, and 
 the purchaser bought them after two had been felled, was held to 
 be a contract for *the trees when they should be cut down and 
 severed from the freehold ; (m) the timber was to be made a chat- 
 tel by the seller.(re) Thisj therefore, is an exception from the 
 general case of selling standing timber. 
 
 the meaning of the term 'emblements,' 
 is not a contract for the sale of land, or 
 any interest in it, or concerninjr it, and 
 that it is not material whether they have 
 come to maturity or not at the time of the 
 sale; or whether -they are to be cut and 
 taken oif of the ground by the vendor or 
 the vendee. There would seem to be some 
 reason for making a distinction between a 
 growing crop of grass or growing trees, 
 and a field of wheat or corn, or other 
 emblements. Emblements seem to be dis- 
 tinct from the real estate, and subject to 
 many of the incidents attending personal 
 chattels." Kingsley v. Holbrook, 45 N. 
 H.318,319; Green ». Armstrong, 1 Denio, 
 550; Andrew v. Neweomb, 32 N. X. 417. 
 And the mere license to come upon the 
 land for the purpose of gathering the an- 
 nual crop, being emblements, sold under a 
 parol contract, and incident to such con- 
 tract, is not a sale of « right concerning 
 land within the meaning of the statute of 
 frauds. Chitty Contr. (lOth Am. ed.) 
 326, note (m) ; Addison Contr. 92, 93 ; 
 Whitmarsh v. Walker, 1 Met. 313.] 
 
 (m) Smith v. Surman, 9 B. & C. 561 ; 
 4 Man. & By. 455. 
 
 (») 1 Cro. & Me. 105. [A sale of timber 
 or trees or other product of the soil, which 
 is to be severed from the freehold by the 
 vendee under a special license to enter on 
 the land for that purpose is, in contempla- 
 tion of the parties, a sale of chattels only, 
 and cannot be regarded as passing an in- 
 terest in the land, and is not for that reason 
 required to be in writing as being within 
 the statute of frauds. Drake v. Wells, 11 
 Allen, 141, 142; Glaflin y. Carpenter, 4 
 Met. 580 ; Nettleton v. Sikes, 8 Met. 34 ; 
 Byassee v. Keese, 4 Met. (Ky.) 372 ; Ers- 
 
 kine v, Plummer, 7 Grcenl. 447 ; Mum- 
 ford V. Whitney, 15 Wend. 380; Cain u. 
 M'Guire, l.'i B. Moh. 340; Edwards v. 
 Grand Trunk Rnilroad, 54 Maine, 105 ; 
 Giles I,. Simonds, 15 Gray, 441; Whit- 
 marsh V. Walker, 1 Met. 313 ; Bostwick v. 
 Leach, 3 Day, 484. y<Such license to enter 
 on the land of another, so far as it is exe- 
 cuted by the severance of the timber or 
 other growth of the soil from the freehold 
 in execution of the license, is iri-evocable. 
 The thing severed becomes personal prop- 
 erty, the title to which is vested in the 
 vendee absolutely, and the rule applies 
 that where chattels belonging to one per- 
 son are placed or left on the land of an- 
 other, with the permission of the latter, the 
 owner of the chattels has an implied irrev- 
 ocable license to enter and remove them. 
 Drake v. Wells, 11 Allen, 141, 142, 143; 
 Giles V. Simonds, 15 Gray, 441 ; Nettleton 
 V. Sikes, 8 Met. 34; Heath v. Eandall, 4 
 Cush. 195 ; Russell v. Richards, 1 Fairf. 
 429 ; S. C. 2 Fairf 371 ; McNeal v. Emer- 
 son, 15 Gray, 384; Smith v. Benson, 1 
 Hill (N. Y.), 176; Barnes v. Barnes, 6 
 Vt. 388 ; Mumford v. Whitney, 15 Wend. 
 380 ; Pierrepont v. Barnan, 5 Barb. 364 ; 
 2 Selden, 279; 2 Am. Lead. Cas. (4th 
 Am. ed.), 739, 740, 746, 752. But it is 
 otherwise where such a contract of sale has 
 not been executed by a severance of the 
 subject matter of it from the freehold. So 
 long as the timber, trees, or othei- product 
 of the soil continues in its natural con- 
 dition, and no act is done by the vendee 
 toward its separation from the soil, no 
 property or title passes to the vendee. The 
 whole rests in contract. A revocation of 
 the license to enter on the land does not 
 defeat any valid title ; the contract being 
 
 [126] 
 
184 
 
 OF THE SALE OF STANDING CROPS. ' [CH. IV. | II. 
 
 7. And sales of potatoes in the ground, which would be em- 
 blements, do not fall within the fourth section ; whether sold at 
 
 stlU executory, no title has passed to the 
 vendee, and the iefusal of the vendor to 
 permit the vendee to enter on the land for 
 the purpose of disconnecting from the free- 
 hold the property agreed to be sold is only 
 a breach of co^itract, the remedy for which 
 is an action for damages, as in the common 
 case of a failure or refusal to deliver 
 ordinary chattels in pursuance of a con- 
 tract of sale. Drake v. Wells, H Allen, 
 143; Giles v. Siraonds, 15 Gray, 444; 
 Whitmarsh v. Walker, 1 Met. 316. In 
 Giles V. Simonds, 15 Gray, 444, Bigelow 
 J. said : " The true distinction between an 
 executory verbal license to enter on land 
 under a contract for the sale of timber or 
 trees growing thereon, and a similar license 
 executed, seems to he this : the former con- 
 fers no vested interest or properly, no 
 money or labor is expended on the faith of 
 it, and no right or title is impaired or lost 
 by its revocation. If the party to whom 
 it is granted is injured by its withdrawal, 
 his remedy is against the licensor for a 
 breach of the contract. It cannot be held 
 to extend further, so as to confer a right to 
 use the land of another without his con- 
 sent, because it would thus confer, ex pro- 
 p-io vigore, an interest in land, which cannot 
 be created except by a "writing. But such 
 a license executed, to the extent to which 
 it has been acted on, has operated to ind^iee 
 the vendee to expend money and services 
 on the property, and thereby to convert it 
 into personal chattels which have become 
 vested in him. The revocation of the 
 license in sueh a case would deprive the 
 vendee of his property. It has therefore 
 been held that such a license, while it is 
 executory, may be countermanded, but 
 that when executed it becomes irrevoca- 
 ble." But neither in these cases, nor in 
 any of those relied upon, was the action 
 against the licensor for a breach of his con- 
 tract in revoking the unexecuted license, 
 under which the licensee was to sever and 
 take the trees or timber from the licensor's 
 
 land. In Claflin v. Carpenter, 4 Met. 580, 
 the plaintiff, being the owner of land, sold 
 to one McDavit, a quantity of wood and 
 timber, thereon, some of which had been 
 cut and was lying upon the land, and the 
 rest was uncut and standing; and at the 
 same time McDavit mortgaged the same 
 wood and timber back to the plaintiff. 
 Afterwards McDavit cut some of the 
 timber^ that was standing at the time of 
 the mortgage and sold it to the defendant. 
 The plaintiff sued in ■ trover for said 
 timber, claiming it as personal property 
 under his mortgage. No question of revo- 
 cation arose. The court held that the 
 plaintiff was entitled to recover, on the 
 ground "that the mortgage from McDavit 
 to the plaintiff was a mortgage of personal 
 property, to take effect as such, when the 
 wood and timber should be severed from 
 the freehold. In Nettleton v. Sikes, 8 Met. 
 34, the plaintiff, being the owner of land, 
 agreed orally with the defendant that on a 
 price named, he might cut certain trees 
 standing thereon, peel them, and take 
 the bark to his own use. After the 
 defendant had cut and peeled the trees, 
 the plaintiff forbid the defendant to go 
 upon the land and take the bark away. 
 But the court ruled that when the bark 
 was peeled, it became the property of the 
 defendant, by the terms of the contract ; 
 and that the plaintiff could not counter- 
 mand his license to enter and take the 
 bark, so as to render the defendant liable 
 in an action of trespass for doing so. To 
 the same effect are Nelson v. Nelson, 6 
 Gray, 385, and Douglas v. Shumway, 13 
 Gray, 498. In these cases it appeared 
 that the license had been acted on by the 
 vendee, who had entered on the land and 
 cut the timber which was the subject of 
 the contract of sale, and had thereby ac- 
 quired a title to the wood as personal prop- 
 erty. In Nelson v. Nelson, the additional 
 fact appeared, that the vendee of the trees, 
 after he had cut them, took away a pan 
 
CH. IV. § II.J OF THE SALE OF STANDING CROPS. 185 
 
 SO much per sack, to be dug by the purchaser and taken away 
 immediately, which is considered as a sale merely of the potatoes, 
 
 of the wood, and sold the remainder lying 
 upon the ground, with all his unexercised 
 rights of removal to the plaintiff. The 
 defendant, being the owner of the land, 
 took and burnt the wood. The question 
 was discussed whether the license to re- 
 move was assignable by the original ven- 
 dee to the plaintiff, but the court did not 
 find it necessary to decide it. In Giles a. 
 Simonds, 15 Gray, 441, a case was pre- 
 sented where a vendee had entered on land 
 under a contract of sale of standing trees, 
 and had cut down a part of those agreed 
 to be sold, when he was forbidden by the 
 vendor, the owner^ of the land, from pro- 
 ceeding any further in the execution of the 
 contract, and also from removing the trees 
 which had been severed from the freehold. 
 He nevertheless did go on the land and 
 take away such of the trees as had been 
 previously cut down. The court decided 
 that the vendor had a right to terminate 
 the contract and revoke the license as to 
 the trees left standing, but that he could 
 not do so as to those which had been al- 
 ready cut, and that an action of trespass 
 would not lie for entering and taking 
 away the latter. 
 
 Whitmarsh v. Walker, 1 Met. 313, was 
 an action for the non-delivery of mulberry- 
 trees growing in a nursery and raised to be 
 sold and transplanted, under an oral agree- 
 ment for the delivery of them where they 
 were growing, upon payment therefor 
 being made. This waS decided not to be 
 a contract for the sale of an interest in or 
 concerning lands within #the statute of 
 frauds, and judgment was rendered for the 
 plaintiff. Wilde J. said : "According to the 
 true construction of the contract, as we 
 understand it, the defendant undertook to 
 sell the trees at a stipulated price, to sever 
 them from the soil, or to permit the plain- 
 tiff to sever them, and to deliver them to 
 him on demand. It is immaterial whether 
 the severance was to be made by the plain- 
 tiff or the defendant. For a license for the 
 
 plaintiff to enter and remove the trees 
 would pass no interest in the land, and 
 would, without writing, be valid, notwith- 
 standing the statute of frauds." 
 
 On the other hand it has been held in 
 many well considered cases, that growing 
 trees are an interest in land ; and that as 
 long as they are annexed to the land, and 
 are not actually, nor in contemplation of 
 law, severed therefrom, an oral sale of 
 them would not be binding under the 
 statute of frauds respecting a sale of an 
 interest in lands. Thus in Buck v. Pick- 
 well, 27 Vt. 157, it was determined that an 
 agreement for the sale of growing trees, 
 with a right in the vendee to enter upon 
 the land at a future time to take and cut 
 them off as he may want them, is a con- 
 tract for the sale of an interest in land, 
 and that unless it be in writing, no action 
 can be maintained upon it ; nor can it in 
 any way be made available, as a contract, 
 so long as it reinains executory. See, to 
 the same effect. Green v, Armstrong, 1 
 Denio, 550; Warren v. Leland, 2 Barb. 
 614, 618 ; Dubois v. Kelly, JO Barb. 496; 
 Pierrpont v. Barnard, 5 Barb. 364 ; Kings- 
 ley V. Holbrook, 45 N. H. 313 ; Putney v. 
 Day, 6 N. H. 430 ; Olmstead v. Niles, 7 
 N. H. 522 ; Teakle v. Jacob, 33 Penn. St. 
 376 ; Huff i;. McCauley, 53 Penn. St. 206 ; 
 Pattison's Appeal, 61 Penn. St. 294 ; El- 
 lison V. Brigham, 38 Vt. 64 ; Sterling v. 
 Baldwin, 42 Vt. 306 ; Harrell v. Miller, 
 35 Miss. 700. 
 
 In Rodwell v. Phillips, 9 M. & W. 501, 
 an agreement for the sale of growing fruit 
 was held to be an agreement for the sale 
 of an interest in land. " Growing fruit," 
 said Lord Abinger, " would not pass to an 
 executor, but to the heir." But in Buck 
 V. Pickwell, 27 Vt. 157, 166, it was con- 
 ceded by Bennett J., who delivered the 
 opinion of the court, that " if the contract 
 is for a valuable consideration, and has 
 been executed by the vendee, by his actu- 
 ally severing the trees from the freehold 
 
186 
 
 OF THE SALE OF STANDING CROPS. [CH. IV. § II. 
 
 and the land a mere warehouse for them ; (o) or whether they 
 are then growing and sold at so much an acre, to be dug and 
 carried away by the purchaser, without any time limited, and 
 whether at the time of sale they, were covered with earth in a 
 field or in a box, still it is a sale of a mere chattel ; (p) or whether 
 the crop be in a growing state, and be sold by the cover, to be 
 turned up by the seller ; (q) or the crop be sold at so much a 
 sack, to be dug by the purchaser at the usual time, and to be 
 then paid for, which is a contract to pay so much per sack for 
 the potatoes when (delivered. (r) So a crop of turnips, even re- 
 cently sown, is not within that section. (5) Neither, it seems, 
 would a parcel of growing hops fall within its provisions.(^) 
 And a parol agreement for the sale of crops may be good be- 
 tween an outgoing and incoming tenant, for "there would be no 
 sale of any interest in the land, for that would come from the 
 landlord. (m) Where (x) a tenant having a right to remove fix- 
 tures left them in the house, upon a verbal agreement with the 
 
 under the contract, the property in the 
 trees would doubtless, when cut, vest in 
 the vendee and become his. See, also, 
 Yale V. Seely, 15 Vt. 221. 
 
 A distinction is sometimes made be- 
 tween those cases where the contract for 
 sale of growing trees is made with a view 
 to immediate severance, and those where 
 the trees are to remain standing for a long 
 or -an uncertain time. See Byasse u. 
 Reese, 4 Met. (Ky.) 372; Huffu. McCau- 
 ley, 53 Penn. St. 206. See, also, cases 
 , above cited.] 
 
 (0) Parker v. Staniland, 1 1 East, 362. 
 
 (p) Warwick v. Bruce, 2 Man. & Sel. 205. 
 
 (q) Evans .^.Roberts, 5B.'& C. 829 ; 
 
 5 B. & Ad. 116 ; Hallen v. Runder, 2 Cro. 
 
 6 Mee. 266. 
 
 (r) Sainsbury v. Matthews, 4 M. & W. 
 343 ; [Whitmarsh v. Walker, 1 Met. 315.] 
 
 (s) Dunne v. Ferguson, 1 Hayes, 541. 
 
 (t) Waddington v. Bristow, 2 Bos. & 
 Pul. 452 ; [Frank v. Harrington, 36 Barb. 
 415 ; Parke B. in Rodwell v. Phillips, 9 
 M. & W. 503; Evans d. Roberts, 5 B. & 
 C. 829.] 
 
 (») Mayfield v. Wadsley, 3 B. & C. 
 
 357 ; Emmerson v. Heelis, 2 Taunt. 38, 
 contra, is overruled, 5 B. & C. 832. [In 
 Rodwell V. Phillips, 9 M. & W. 501, 505, 
 Lord Abinger said, " There is a great va- 
 riety of cases, in which a distinction is 
 made between the sale of growing crops 
 and the sale of an interest in land ; and 
 it must be admitted, taking the cases al- 
 together, that no general rule is laid down 
 in any one of them that is not contra- 
 dicted in some other."] 
 
 {x) Hallen v. Runder, 1 Cr., Mee. & 
 Ros. 266 (1834) ; Lee v. Risden, 7 Taunt. 
 188, 191 ; Colegrave v. Dias Santos, 2 B. 
 & C. 76 ; Clayton v. Burtonshaw, 5 B. & 
 C. 47; [Bostwick r. Leach, 3 Day, 476. 
 So a parol contract for the sale of improve- 
 ments on publiclands is valid. Zickafosse 
 V. Hulick, 1 Morris, 175 ; or on private 
 lands, Cassell v. Collins, 23 Ala. 676. See 
 Benedict v. Beebee, 11 John. 145 ; 4 Kent 
 (llth ed.), 450, 451 ; Frear v. Harden- 
 bergh, 5 John . 272 ; Lower v. Winters, 7 
 Cowen, 263 ; Bannon u. Urton, 3 Iowa, 
 228; Sutton v. Sears, 10 Ind. 223; Boze 
 V. Davis, 14 Texas, 331.] 
 
CH. IV. § II.] OF MINES AND RAILWAY SHARES. 
 
 187 
 
 landlord that the latter should take them at a valuation, the 
 court were quite satisfied that this was not a sale of any interest 
 in land. 
 
 8. Although a parol agreement, which is within the fourth sec- 
 tion, cannot be enforced before it is executed, yet if the agree- 
 ment is executed by delivery and acceptance of the subject mat- 
 ter of the sale, the seller may recover.(2/) And where,(2;) upon 
 a parol contract the buyer felled and took away the trees, and 
 afterwards admitted he had made the purchase at the price, the 
 seller recovered the money. * If the case fall within the fourth 
 section, there must be a contract in writing, and if it do not fall 
 within it, yet there must still be a writing, unless there was ear- 
 nest or part payment made, or part of the subject matter of sale 
 be accepted and received by the purchaser.(a) 
 
 9. In a case in Ireland, (*) a sale of a share in a mining com- 
 pany was held, by the court of king's bench, to be within the 
 statute. The company were engaged in a partnership in inter- 
 
 (y) Teall v. Auty, 4 Moo. 542 ; Cock- for the current year, may be enforced, 
 
 ing V. Ward, 1 C. B. 858 ; Kelly v. Web- Brackett v. Evans, 1 Cush. 79 ; Preble v. 
 
 ster, 12 C. B. 283 ; or where an agent has Baldwin, 6 -Cush. 549 ; Weld o. Nichols, 
 
 paid on request of his principal, Paule v. 17 Pick. 538 ; Howe v. Walker, 4 Gray, 
 
 Gun, 4 Bing. N. C. 445. [An oral promise 318. Under an oral agreement for an ex- 
 
 to pay for land at a certain sum by the change of lands, complied with by one 
 
 acre, may be enforced by the seller, after party and avoided by the other, an action 
 
 the delivery and acceptance of a deed of it will lie for the value of the land conveyed. 
 
 by the purchaser. Nutting v. Dickinson, 
 8 Allen, 540 ; Basford v. Pearson, 9 Allen, 
 387; Trowbridge v. Wetherbee, 11 Allen, 
 361 ; Wetherbee v. Potter, 99 Mass. 362 ; 
 Wilkinson v. Scott, 17 Mass. 258 ; Brack- 
 ett V. Evans, 1 Cush. 79, 82 ; Bowen v. 
 Bell, 20 John. 338 ; Fiske u. McQregory, 
 34 N. H. 414 ; Baxter v. Gray, 14 Conn. 
 Il9; Goodwin «. Gilbert, 9 Mass. 510; 
 
 Basford v. Pearson, 9 Allen, 387. See 
 Gray v. Hill, 1 K. & M. 420 ; Bonnon v. 
 TTrton, 3 Iowa, 228 ; Piske v. McGregory, 
 34 N. H. 414. But no action lies to re- 
 cover the price of land sold by a parol con- 
 tract, where the deed, though tendered, has 
 not been accepted. Lester v. Bartlett, 2 
 Carter, 628. See, also, Morgan v. Mc- 
 Laren, 4 Greene, 536 ; Reynolds u. Dun- 
 
 Whitbeck v. Whitbeck, 9 Cowen, 266; kirk, &c. 17 Barb. 613 ; Davis w. Farr, 26 
 
 Linscott V. Mclntire, 15 Maine, 201 ; 
 Fishery. Wilson, 18 Ind. 133; Hodges v. 
 Green, 28 Vt. 358; Thayer v. Niles, 23 
 Vt. 497 ; Shepherd v. Little, 14 John. 210 ; 
 Morgan v. Bittenberger, 3 Gill, 350; 
 Thomas v. Dickinson, 14 Barb. 90 ; As- 
 cutney Bk v. Ormsby, 28 Vt. 721. An 
 
 Vt. 592 ; Sanborn v. Chamberlin, 101 
 Mass. 409 ; King v. Smith, 33 Vt. 22.] 
 
 (z) Knowles v. Mitchel, 13 East, 249 ; 
 Griffith V. Young, 12 East, 513; Green v. 
 Suddington, 7 Ell. & Bl. 503 ; Hodgson 
 V. Johnson, 1 Ell., BI. & Ell. 685. 
 
 (a) 29 Car. 2, c. 3, s. 17 ; Evans v. Rob- 
 erts, 5 B. & C. 829 ; Smith v. Surman, 9 
 
 oral promise by the purchaser of land, at 
 
 the time of the conveyance, to pay the B. & C. 566. 
 
 taxes that are or may be assessed thereon, (i) Boyce v. Green, Batty, 608 
 
 [127] 
 
188 OF MINES AND EAILWAY SHAKES. [CH. IV. § II. 
 
 ests in or concerning lands.(6i) The nature of mining implies 
 a right to open the ground, and keep it open, and such right to 
 the land for a limited time and purpose as induced the court, in 
 Crosby v. "W"adsworth,(c) to hold a contract for the sale >of a 
 growing crop to be within the statute. The company had many 
 mines at work in different parts of Ireland, some purchased, oth- 
 ers rented. The sale thereof was of a share in those houses and 
 interestsan lands which the company had acquired; but this is 
 otherwise as to regular railway shares, which are not land nor 
 personal estate of the quality of goods ; {d) and it has been de- 
 cided, although with some difference of opinion, that shares in a 
 mine conducted on the cost-book principle, are not within the 
 statute. It was held that there is no difference in principle be- 
 tween shares in incorporated joint stock companies, and shares 
 in unincorporated ones. The principles, it was said, are perfectly 
 clear. If there be a joint interest in land in the different share- 
 holders, so to speak, as they call themselves, of a mine, that 
 must pass under the fourth section of the statute. On the 
 other hand, if the real interest of the shareholders is merely a 
 divisible portion of it, arising out of the employment of their 
 capital in the working of the mine, there is no interest in the 
 land, and it is not within the meaning of the fourth section,(e) 
 and this must now be considered the general rule. 
 
 (Ji) [See Cacldick v. SMdmore, 2 De G. Wetherbee, 11 Allen, 361. A., B., C, and 
 
 & J. 52; 1 Lind. Partn. (Eng. ed. 1860), D. orally agreed to purchase real estate 
 
 82 ; Dale v. Hamilton, 5 Hare, 369 ; Coll- jointly ; C. and D. in like manner agreed 
 
 yer Partn. (5th Am. ed.) § 3, & notes; to furnish the money for the purchase; 
 
 Smith V. Burnham, 3 Sumner, 435, 458, and C. agreed with D. that the drafts for 
 
 471 ; Story Partn. § 83 ; Bunnel v. Tain- the purchase money should he drawn on 
 
 tor, 4 Conn. 568 ; Pall River Whaling D., and that he would reimburse D. one 
 
 Co. V. Borden, 10 Cush. 458 ; Pitts v. half of what D. should pay thereon. The 
 
 Waugh, 4 Mass. 426 ; Gray v. Palmer, 9 promise of C. to reimburse D. was held 
 
 Cal. 616; Black v. Black, 15 Geo. 445; not to be within the statute of frauds, as a 
 
 Patterson v. Grace, 10 Ala. 444 ; Sargeant contract for the sale of lands. Wetherbee 
 
 J. in Hale v. Henrie, 2 Watts, 145, 147 ; a. Potter, 99 Mass. 354. An oi-al agree- 
 
 Tucker J. in Wheatley v. Calhoun, 12 ment, to purchase land jointly and divide 
 
 Leigh, 264; Thorn v. Thorn, II Iowa, it, is within the statute of frauds. Henly 
 
 146 ; Lesley v. Rosson, 39 Miss. 368. A v. Brown, 1 Stewart, 144.] 
 parol promise to pay to another a portion (c) 6 East, 602. 
 
 of the profits made by the promisor in a (d) Bradley v. Holdworth, 3 M. & W. 
 
 purchase and sale of real estate is not 422 ; Duncuft v. Albrecht, 12 Sim. 189, 
 
 within the statute of frauds ; and if it is and cases in notes ; [ Vaupell v. Woodward, 
 
 founded on a sufficient consideration, may 2 Sandf. Ch. 143.] 
 be enforced by action. Trowbridge v. (e) Watson v. Spratley, 10 Ex. 222; 
 
CH. IV. § III.] PAEOL AGREEMENT WHOLLY VOID. 
 
 189 
 
 10. If an entire agreement be made for the sale of real and 
 personal estate, and the agreement as to the land be within the 
 statute, and void, it cannot be supported as to the personal prop- 
 erty which was sold with it ; (/) and if the agreement be a valid 
 one, yet no property in the goods vests in the purchaser before 
 the contract is executed. (§•) 
 
 * 11. Of course although the word purchase is not used, yet if 
 one is to give up possession of a house, for example, to another 
 who is to pay him a sum of money and to take certain things 
 at a valuation, the whole agreement is within the statute.(A) 
 
 SFXTION III. 
 
 OF THK FORM AND SIGNATURE OF THK AGREEMEKT. 
 
 10. 
 11. 
 12. 
 1.3. 
 
 Signature by party to be charged suffi- 
 cient. 
 Blanlc for seller's name fatal. 
 
 } How the other party may be bound. 
 
 Receipts and letters sufficient. — Stamp- 
 ing letters. 
 
 Offers in writing binding. 
 
 Unless there be fraud. 
 
 Simple acceptance binding. 
 
 Conditional offer. 
 
 Effect of mistake of owner's agent on an 
 agreement by letter. 
 
 see Toppin v. Lomas, 16. C. B. 14.5; 
 Powell V. Jessopp, 18 C. B. 336. 
 
 (/) Cooke V. Tombs, 2 Ans. 420 ; Lea 
 V. Barber, lb. 425 ; Chater v. Beckett, 8 T. 
 Kep. 201 ; see Neal u. Viney, 1 Cam. 
 471 ; Corder v. Drakeford, 3 Taunt. 382 ; 
 Mayfield v. Wadsley, 3 B. & C. 357 ; Ld. 
 ralmoutli V. Thomas, 1 Cro. & Mee. 89 ; 
 Mechelen v. Wallace, 2 Nev. & Per. 
 224 ; 7 Ad. & El. 49 ; Vaughan v. Han- 
 cock, 3 C. B. 766 ; Hodgson v. Johnson, 
 1 Ell., El. & Ell. 685 ; [Smith v. Smith, 
 14 Vt. 440; Chitty Cont. (10th Am. 
 ed.) 328; Thayer v. Rock, 13 Wend. 
 53 ; Van Alstine v. Wimple, 5 Cowen, 
 162; Crawford v. Morrell, 8 John. 253; 
 
 14. Posting letter. 
 
 15. Offer may be retracted before accept- 
 
 ance. 
 
 16. Where special acceptance necessary. 
 
 17. j Receipt or letter must specify all the 
 20. ) terms. 
 
 21. Consideration should appear. 
 
 23. Trifling omission fatal. 
 
 25. j Omissions supplied by reference to other 
 
 31. ) writings. 
 
 27. Instructions for contract not sufficiently 
 
 referred to. 
 
 28. Bankruptcy discharges offer. 
 
 McMullen v. Biley, 19 Law Eep. (Boston), 
 439 ; Gould v. Mansfield, 103 Mass. 408 ; 
 Duncan u. Blair, 5 Denio, 196; Dock v. 
 Hart, 7 Watts & S. 172; Harman v. 
 Eeeve, 18 C. B. 587. But where the prom- 
 ise is not entire, and the part which would 
 be void under the statute can be separated 
 fi-om the rest, the part so remaining, if 
 otherwise Valid, may be enforced. Mgt- 
 calf J. in Irvine u. Stone, 6 Cush. 511 ; 
 Rand v. Mather, 11 Cush. 1 ; Page w. 
 Monks, 5 Gray, 492.] 
 
 (g) Lanyon v. Toogood, 13 M. & W. 
 27 ; Sleddon v. Cruikshank, 16 M. & W. 
 71. 
 
 (A) Smith V. Tombs, 3 Jur. 72. 
 
 • [128] 
 
190 
 
 BY WHOM AGEEEMENT 
 
 [CH. IV. § III. 
 
 32. What amounts to an adoption of an un- 
 
 signed agreement. 
 
 33. Insufficient references to othier papers. 
 
 34. Boyce v. Green. 
 
 35. Want of signature not supplied by letter 
 
 abandoning an agreement. 
 
 36. Reference to different contract insuffi- 
 
 cient. 
 
 37. ) Auctioneer's receipt, entry, &c., bind- 
 
 38. i ing. 
 
 j Letters to third persons binding. 
 41. Bonds of reference to surveyor. 
 
 ( Rent rolls, abstracts, &c., not agree- 
 
 ■ ( ments. 
 44. ; 
 
 it. Nor draft of conveyance. 
 
 46. 1 Valid agreement binding, though sent 
 
 ^^' ) as instructions. 
 
 48. Pleading letters. 
 
 1. We may now consider, first, what is a suificient agree- 
 ment ;(a^) 2dly, what is a sufficient signature by the party or 
 his agent ; and, 3dly, who will be an agent lawfully authorized. 
 
 2. There is a marked distinction between the fourth section, 
 which we have principally to consider, and which simply enacts 
 that no action shall be brought upon the contracts in question 
 unless in the cases provided for, and the seventeenth section re- 
 lating to goods, which enacts that no contracts struck at shall be 
 allowed to be good, although that distinction has sometimes 
 been lost sight of.(a) The fourth section requires the writing to 
 be signed only by the person to be charged ; and, therefore, if a 
 bill be brought against a person who ' signed an agreement, he 
 will be bound by it, although the other party did not sign it, as 
 the agreement is sigtred by the person to be charged. (6) This, 
 after much controversy, has been established by great authority. 
 It was finally settled by the case of Laythoarp v. Bryant,(c) that 
 the agreement was binding upon the party wHo signed it. The 
 court thought there was no reason for saying that the signature 
 
 (ai) ["It must be observed that the 
 contract itself, and the memorandum 
 ■which is necessary to its validity under 
 the statute of frauds, are in their nature 
 distinct things. The statute presupposes 
 a contract by parol." Lerned u. Wanne- 
 macher, 9 Allen, 416.] 
 
 (a) Leroux v. Brown, 12 C. B. 801. 
 
 (6) Hatton v. Gray, 2 Ch. Ca. 164 ; Cot- 
 ton V. Lee, 2 Bro. C. C. 564 ; Coleman u. 
 Upcot, 5 Vin. Ab. 527, pi. 17 ; Buckhouse 
 V. Crossby, 2 Eq. Ca. Ab. 32, pi. 44 ; Seton 
 V. Slade, 7 Ves. 265; 2 J. & W. 428; 
 Towle V. Freeman, MS. ; 9 Ves. 355 ; 1 
 
 [129] 
 
 Sch. & Lef. 20;, 11 Ves. 592; Western o. 
 Russell, 3 Ves. & Bea. 1 87 ; see Wain n.' 
 Warlters, 5 East, 10 ; Egerton v. Matthews, 
 6 East, 307, which do not impeach this 
 doctrine; 5 East, 16 ; see Sari v. Bourdil- 
 lon, 1 C. B. N. S. 196 ; Allen v. Bennett, 3 
 Taunt. 169. As to Wain v. Warlters, see 
 Stadt V. Lill, 9 East, 348; 1 Cam. 242 ; Ex 
 parte Minet, 14 Ves. 189; Ex parte Gar- 
 dom, 15 Ves. 286 ; Bateman v. Philips, 
 15 East, 272 ; Sanders u. Wakefield, 4 B. & 
 Aid. 595 ; Jenkins v. Reynolds, 3 Bro. & 
 B. 14 ; Bainbridge o. Wade, 16 Q. B.89. 
 (c) 2 Bing. N. C. 735. 
 
CH. IV. § III.] IS TO Bl! SIGNED. 191 
 
 of both parties is that which makes the agreement. The agree- 
 ment, in truth, is made before any signature.(ci) The word 
 agreement was satisfied if the writing states the subject matter 
 of the contract, the consideration, (c^) and is signed by the party 
 to be charged. (c^) The statute requires t^at it shall be signed 
 by the party to be charged, and it was not intended to impose 
 on the vendor the burden of the proof of some other paper in 
 the hands of the opposite party, and which the vendor may have 
 no means of producing, for it often happens that each party de- 
 livers to the other the part signed by himself. A common case 
 is where an agreement arises out of a correspondence ; it often 
 happens that a party is unable to give evidence of his own letter, 
 and he is not to be defeated because he cannot produce a formal 
 agreement signed by both the parties to the contract. The word 
 party in the statute is not to be construed party as to a deed, but 
 person in general ; [d) but there have been instances in which 
 the want of the signature to the agreement by the party seeking 
 to enforce it, has been deemed a badge of fraud ; (e) but perhaps 
 the transaction ought not to be viewed in that light, unless the 
 
 (c^) [In the veiynature of such transac- Stanton, 15 Vt. 687 ; Adams u. McMillan, 
 tions, the memorandum must be posterior 7 Port. 73 ; Kidgwayu. Wharton, 3 De G., 
 in point of time to the contract of which M. & G. (Am. ed.) 697, note 1 ; Ives v. 
 it is the record. Merrick J. in Williams Hazard, 4 R. I. 14 ; Fenly v. Stewart, 5 
 V. Bacon, 2 Gray, 391 ; Marsh v. Hyde, 3 Sandf. 101 ; Lowry v. Mehaffey, 10 Watts, 
 Gray, 331; Lerned v. Wannemacher, 9 387; MTarson's Appeal, 11 Penn. St. 
 Allen, 415,416; Gale v. Nixon, 6 Cowen, 503; De Cordova «. Smith, 9 Texas, 129; 
 445. The contract may be made at one Lansing i>. Cole, 3 Green Ch. 229 ; Young 
 time, and the note or memorandum of it v. Paul, 2 Stockt. Ch. 402 ; Dresel v. Jor- 
 at a subsequent time. Lerned v. Wanne- dan, 104 Mass. 407 ; Hunter v. Giddings, 
 macher, 9 Allen, 416; Ide v. Stanton, 15 97 Mass. 41 ; see Champlin 0. Parish, 11 
 "Vt. 690.] Paige, 405 ; National Fire Ins. Co. v. 
 (c^) [Seejaost, 134, 135, n. (u).] Loomis, 11 Paige, 431 ; Baptist Church 
 (c^) [Shirley v. Shirley, 7 Blackf. 452; in Ithaca v. Bigelow, 16 Wend. 28, 30; 
 Barstow v. Gray, 3 Greenl. 409 ; Penni- Cammeyer v. United German Lutheran 
 man v. Hartshorn, 13 Mass. 87; Old Churches, 2 Sandf. Ch. 186; Mirell w. Bur- 
 Colony Railroad Corp. v. Evans, 6 Gray, nett, 4 Jones (Law), 249. In New York, 
 25 ; Getchell v. Jewett, 4 Greenl. 350 ; a contract for the sale of land is void, 
 Higdon V. Thomas, 1 Harr. & G. 139; unless the contract, or a note, or mem- 
 Hawkins V, Chace, 19 Pick. 502; Clason orandum of it in writing, is signed by the 
 V. Bailey, 14 John. 487 ; Douglass v. party by whom the sale is to be made. 
 Spears, 1 Nott. & McC. 207 ; Davis v. Burrell v. Root, 40 N. Y. 498-.] 
 Shields, 26 Wend. 341 ; Lent v. Padelford, (d) 3 Atk. 503. 
 
 lO Mass. 236 ; Ivory v. Murphy, 36 Missou. (e) O'Rourke v. Percival, 2 Bal. & Beat. 
 
 534 ; Worrall v. Munn, 1 Seld. 229 ; Ide v. 58. 
 
192 BY WHOM AGREEMENT IS TO BE SIGNED. [CH. IV.' § III. 
 
 other party called on the party who had not signed to execute it, 
 in which case a refusal to sign might be held to operate as a re- 
 pudiation of the contract.(/) The rule applies to courts of law 
 as well as to courts of equity. (g-) 
 
 3. In a case at nisi prius,(/j) upon an action by the seller, — 
 on the printed conditions an agreement signed by the purchaser 
 was indorsed, which acknowledged the purchase by auction of 
 Messrs. * Walters, the auctioneers, as agents for [here a blank was 
 left for the seller's name], — the' property was properly referred 
 to and the price was stated. Lord Tenterden showed that the 
 declaration alleged the consideration to be the sale by the plain- 
 tiff, but nothing appeared to bind him ; his name was not men- 
 tioned in the conditions nor in the agreement. What a court of 
 equity would do in this case he could not say. It was the duty 
 of the auctioneer to sign, and he often had occasion to lament 
 they did not do so. Equity, we may observe, would have bound 
 the purchaser by his signature had the agreement contained all 
 the terms. The objection in equity as well as at law was, that 
 the seller's name was not inserted in the agreement, and was not 
 supplied by his signature, and that the auctioneers' name was 
 not inserted as sellers or as agents of an undisclosed principal, 
 but as agents of a person whose name was intended to be dis- 
 closed, but was left in blank, so that no seller's name was con- 
 tained in the agreement.(j) A purchaser should always require 
 the auctioneer to sign as well as himself; he would be perfectly 
 justified in refusing to sign unless the auctioneer also joined ; 
 and such a contract is invalid, unless it contains the names of 
 both parties to it.(A) 
 
 4. Where a contract in writing or note exists which binds one 
 party, any subsequent note in writing signed by the other is 
 sufficient to bind him, provided it either contains in itself the 
 terms of the contract, or refers to any writing which contains 
 
 (f) 2 Bal. & Beat. 371 ; Martin v. Mit- 37 ; Liverpool Bank v. Eccles, 4 H. & N. 
 chell, 3 Swa. 428. 139. 
 
 (g) Bowen v. Morris, 2 Taunt. 374 ; (h) Wheeler v. Collier, 1 Moo. & Mai. 
 Wheeler v. Collier, 1 Moo. & Mai. 123; 123. 
 
 but see Allen v. Bennett, 3 Taunt. 176 ; 18 ({) Jacob v. Kirk, 2 Moo. & Eob. 220. 
 Ves. 183 ; Laythoarp v. Bryant, 2 Bing. [See Hood v. Ld. Barrington, L. R. 6 Eq. 
 N. C. 735 ; Field I). Boland, 1 Dru. & Wal. 218.] 
 
 (k) Williams v. Lake, 6 Jur. N. S. 45. 
 
 (130] 
 
. CH. IV. § III.] RECEIPTS. LETTERS. STAMPS. 
 
 193 
 
 them, although it is not written with any view of binding the 
 writer by the contract ; (/) and tlie rule equally applies to a note 
 by an agent lawfully authorized.(OT) 
 
 5. But although the agreement must be signed, yet it need 
 not be so averred in a bill for a specific performance ; for as the 
 allegation in the bill is that there is an agreement in writing, 
 signature must be presumed until the contrary is shown.(w) 
 
 6. If a written agreement has been in part executed, it seems 
 that an agreement subsequently entered into between the par- 
 ties, and reduced into writing, will bind them both, if signed by 
 one of them.(o) 
 
 7. A receipt for the purchase money may constitute an agree- 
 ment in writing within the statute ;(;?) and it has frequently 
 been decided, that a note or letter will be a sufficient agreement 
 to take a case out of the statute ; (q) but every agreement should 
 
 (/) Dobell V. Hutchinson, 3 Ad. & El. 
 355, inf. [It is not necessary that the 
 memorandum should be drawn up for the 
 express purpose of authenticathig the 
 agreement; if it recognizes the bargain, 
 and is delivered and accepted, it will be 
 sufScient Ellis v. Deadman, 1 Bibb, 467 ; 
 Smith V. Arnold, 5 Mason, 416 ; Beeves v. 
 Pye, 1 Cranch (C. C.),219. Where a deed 
 was prepared and executed by the vendor, 
 at the time of sale, but not delivered, see 
 Bowles V. Woodson, 6 Gratt. 68 ; Parrill 
 V. M'Kinsley,'9 Gratt. 1 ; where a deed was 
 defectively executed, Somerville v. True- 
 man, 4 Harr. & M'Hen. 252. An instru- 
 ment, if invalid as a deed of land for want 
 of a seal, may still be valid as a contract 
 for a sale of the land. Henry v. Root, 33 
 N. Y. 526,] 
 
 {m) Norris v. Cooke, 7 Ir. C. L. Eep. 
 37. 
 
 (n) Hist V- Hobson, 1 Sim. & Stu. 543. 
 
 (o) Owen V. Davies, I Ves. 8^ 
 
 ip) Coles V. Trecothick, 9 Ves. 234 ; 
 Blagden v. Bradbear, 12 Ves. 466; see 
 Caddick u. Skidmore, 2 De G. & J. 52;' 
 [Hurley v. Brown, 98 Mass. 545 ; Evans v. 
 Prothero, 2 Mac. & G. 319 ; S. C. 1 De 6., 
 M. & G. 572 ; Cosack v. Descondres, 1 
 
 VOL. I. 13 
 
 McCord, 425. But to have this effect, the 
 receipt must show, either upon its face, or 
 by reference to some other writing, every 
 material part of a valid contract. Barick- 
 man v. Kuykendall, 6 Blackf. 21 ; Welsh 
 V. Bayaud, 6 C. E. Green (N. J.), 186; Kay 
 V. Curd, 6 B. Monr. 100; Ellis v. Dead- 
 man, 4 Bibb, 466 ; post, 136, 138, 140, & 
 notes. So the agreement may be contained 
 in the condition of a bond. Newton v. 
 Swazey, 8 N. H. 9, 12.] 
 
 {q) Coleman v. Upcot, 5 Vin. Ab. 527, 
 pi. 17; Buckhouse v. Crossby, 2 Eq. Co. 
 Ab. 32, pi. 44. As to contract by letters 
 in cases not within the statute, Eichards 
 V. Hayward, 2 M. & G. 574. [Contracts 
 may be made by telegraphic dispatches, 
 and by them proved in court. Taylor c. 
 Steamboat Robert Campbell, 20 Missou. 
 254 ; Durkee v. Vermont Central R. R. 
 29 Vt. 127 ; Henkel v. Pape, L. R. 6 
 Exch. 7 ; Leonard v. New York, &c. Tel. 
 Co. 41 N. Y. 544 ; Beach v. Raritan, &c. 
 R. E. Co. 37 N. Y. 457. The signature 
 to the instructions for a telegram which in 
 terms accepted an offer, has been held a 
 sufficient signature of the agreement within 
 the statute of frauds. Godwin v. Francis, 
 L. R. 5 C. P. 295.] 
 
194 EECEIPTS. LETTERS. STAMPS. [CH. IV. § m. 
 
 be stamped before it *can be read ; (r) and, as this ought to be 
 done, the court will assist either party in obtaining it for that 
 purpose. In Fowle v. Freeman, (s) the agreement unstamped 
 was sent by the vendor to his attorney, with a letter written at 
 the bottom, directing him to prepare a technical agreement. The 
 attorney contended that it was a private letter to him ; but the 
 court, on motion, ordered it to be delivered to the purchaser for 
 the purpose of getting it stamped, and now facilities have been 
 given for the payment into court of the duty and penalties, so 
 as to admit an unstamped instrument to be admitted in evi- 
 dence.(^) It has been decided that although a receipt for pur- 
 chase money is not properly stamped, yet if it contain the terms 
 of the agreement, and is properly stamped as an agreement, it 
 may be received as such, though not as evidence of the payment 
 of the money, (m) 
 
 8. But if the agreement is admitted by the answer, so as to 
 dispense with the necessity of proving it, the office copy of the 
 bill, or, if the defendant refuse to produce it, the record itself, 
 may be read in support of the plaintifPs case, and need not be 
 stamped, nor can the fact of the agreement not being stamped 
 be taken advantage of.(a;) 
 
 9. If, upon a treaty for sale of an estate, the owner writes a 
 letter to the person wishing to buy it, stating, that if he parts 
 with the estate it shall be on such and such terms (specifying 
 them) ; and such person, upon receipt of the letter, or within a 
 reasonable time after the offer is made,(j/) accept the terms men- 
 tioned in it, the owner will be compelled to perform the contract 
 in specie.[z) In Coleman v. Upcot, in which this was decided, 
 Coleman, the intended purchaser, accepted the offer by parol, 
 
 (r) Ford v. Compton ; Heame ». James, whether, as the whole of the purchase 
 
 2 Bro. C. C. 32, 309. money was paid in Williams v. Williams, 
 
 (s) Rolls MS. 9 Ves. 351 • Clarke v. and the vendor retained it without any 
 
 Terrel, 1 Smith, 399 ; Coles ?•. Trecothick, demand, and the written offer was free 
 
 9 Ves. 234 ; Morgan u. Holford, 1 Sm. & from ambiguity, and the title was ac- 
 
 Gif. 101. cepted, the vendor's bill should have been 
 
 (t) Infra, ch. 5, s. 4 ; ch. 14, s. 2, pi. 1, 2. dismissed. 
 
 (u) Evans v. Prothero, 1 be G., M. & (2) Coleman' u. Upcot, 5 Vin. Ab. 527 ; 
 
 G. 572. Gaskarth 0. Ld. Lowther, 12 Ves. 107 ; 
 
 (x) Huddlestone v. Briscoe, U Ves. 583. Cowley v. Watts, 17 Jur. 172 ; Boyce v. 
 
 (y) 3 Mer. 454 ; 1 Col. N. C. 310; Will- Green, inf. pi. 34. 
 iams V. Williams, 17 Beav. 213 ; qu. 
 
 [131] 
 
CH. IV. § m.] LETTEES OPERATING AS AGKEEMENTS. 195 
 
 which would be binding (a) when the letter was delivered to 
 him by the defendant's son, accompanied by two other persons, 
 but did not subscribe the letter till three or four days afterwards, 
 and the lord keeper held generally that, the agreement was bind- 
 ing, as it was signed by the party to be charged, and became 
 absolute when accepted, although at first conditional only. In 
 the same case he observed that if a man (being in company) 
 make offers of a bargain, and then write them down and sign 
 them; and *the other party (1) takes them up and prefers his 
 bill, that shall be a good bargain, and the party shall be com- 
 pelled to a specific performance of it. 
 
 10. But if it appear that, on being subrhitted to the other 
 party for acceptance, he had hastily snatched it up, had refused 
 the owner a copy of it ; or if, from other circumstances, fraud 
 in procuring it may be inferred, in case of an action, it will be 
 left to the jury to say whether it was intended, by the defendant, 
 at first, to be a valid agreement on his part, or as only contain- 
 ing proposals in writing, subject to future revision ; (b) and if the 
 aid of equity be sought, these circumstances would have equal 
 weight with the court. So in every case it must be considered, 
 whether the note or correspondence import a concluded agree- 
 ment: if it amount merely to treaty, it will not sustjiin an action 
 or suit.(c) 
 
 11. The letters will not constitute an agreement unless the 
 answer to the offer is a simple acceptance, without the introduc- 
 
 (a) Warner v. Willington, 3 Drew. 523. $500 to be paid on the execution of the 
 
 (6) Knight «. Crockford, 1 Esp. 189. deed, and the balance in a mortgage on 
 
 (c) Huddlestone v. Briscoe, 11 Ves. 583 ; the land, with interest at six per cent., no 
 
 Stratford v. Bosworth, 2 Ves. & Bea. 341 ; time being named for delivering the deed, 
 
 Ogilvie V. Eoljambe, 3 Mer. 53 ; Warner v. nor any time for which the mortgage shall 
 
 Willington, 3 Drew. 523 ; Liverpool Bank run, is not a contract, but only a refusal 
 
 V. Eccles, 4 H. & N. 139. [A paper signed or ofier of the land to B. at a certain price, 
 
 by A., by which he agrees that B. in con- and cannot be converted into a contract 
 
 sideration of $1 paid, shall have, for thirty unless accepted within the thirty days, 
 
 days, the refusal of certain land therein Potts v. Whitehead, 5 C. E. Green (N. J.), 
 
 designated, and that he will convey the 55.] 
 same in consideration of $20 per acre, 
 
 (1) This was inaccurately quoted in editions previously to the last. The words 
 " another person," were substituted for " the other party " .; in both the principal case 
 and in the case put, the purchaser's name would appear in the offer. The erroneous 
 statement has led to some confusion. 
 
 [132] 
 
196 LETTERS OPERATING AS AGREEMENTS. [CH. IV. § III. 
 
 tion .of any new term.(t?) And at any time before an offer is 
 accepted, and the contract in effect concluded, the seller may 
 add to or alter the terms he has offered, and of course an offer 
 to purchase may be recalled or modified in like manner.(e) If 
 the offer be in effect rejected by, for example, the tender of a 
 less sum, the offer is at an end, and cannot be revived by a sim- 
 ple acceptance of it.(/) An acceptance of an offer for a lease, 
 to which was added these words, " we hope to give you posses- 
 sion by the half quarter day," was held to be no qualification 
 of the contract, and therefore operative. (g-) In many cases an 
 apparent acceptance may really be a new proposal. (A) The 
 acceptance may be by parol, but it must be an unambiguous 
 act ; and therefore the sending of a draft of conveyance may 
 not in all cases amount to an acceptance, and to be binding it 
 must be uuconditional.(i) 
 
 * 12. Where the offer to the owner in writing was for a price 
 named, and the latter accepted it by writing " subject to the 
 terms of a contract being arranged between his solicitor and the 
 intended purchaser," and a deposit of 1,200/. to 1,500/., and on 
 the next day the owner sent a draft contract to the purchaser's 
 solicitor, which made it a term that 1,500/. deposit should be paid 
 
 {d) Holland y.JSyre, 2 Sim. & Stui 194; rial addition to an acceptance, Clive v. 
 
 Routledge v. Grant, 4 Bing. 653; 1 Moo. Beaumont, 1 De G. & S. 397 ; Gibbins v. 
 
 & Pay. 717; Smith v. Surman, 9 B. & North East Metropolitan Asylum District, 
 
 C. 561; Thomas v. Blackman, 1 Col. 301 ; U Beav. 1 ; Story Sales (4th ed.), § 136, 
 
 Lucas V. James, 7 Hare, 410; O'Fay v. and cases in note (1).] 
 Burke, 8 Ir. Ch. Rep. 225, 511 ; [Eliiison (e) Honeyman v. Marryat, 21 Beav. 14; 
 
 V. Henshaw, 4 Wheat. 225, 228; Hey- 26 L. J. N. S. 619 ; [21 Beav. 14; 6 H. L. 
 
 ward V. Barnes, 23 L. T. 68.^, If the orig- Cas. 112; Chinnock v. Marchioness of Ely, 
 
 inal oifer leave anything to be settled by 6 N. R. 1.] 
 
 future arrangement, it is merely a proposal (/) Hyde v. Wrench, 3 Beav. 334. 
 to enter into an agreement; Ohinnock v. {g] Clive v. Beaumont, 1 De G. & Sm. 
 
 Marchioness of Ely, 6 N. R. 1, reversing 397. 
 
 V. C. Wood, 2 H. & M. 220; Rummens (A) Lucas v. James, 7 Hare, 410. 
 V. Robins, 3 De G., J. & S. 88 ; Wood v. (i) Warner v. Willington, 3 Drew. 523 ; 
 
 Midgloy, 5 De G., M. & G. 41 ; Potts a. Smith v. Neale, 2 C. B. N. S. 88 ; Forster 
 
 Whitehead, 5 0. B. Green (N. J.), 55, v. Rowland, 7 H. & N. 103; [Reuss v. 
 
 58 ; the agreement is not completed until Picksley, L. R. 1 Exch. 342 ; Benecke u. 
 
 there is, upon the face of the correspond- Chadwick, 4 W. R. 687 ; Horsfall v. Gar- 
 
 ence, " a clear accession on both sides to nett, 6 W. R. 387 ; Potts v. Whitehead, 5 
 
 one .and the same set of terms." Thomas C. E. Green, 55. In Joyce v. Swann, 17 
 
 u. Blackman,, 1 Col. 301, 312; and see C. B. N. S. 83, there was what the court 
 
 Cowley u. Watts, 17 Jur. 172; Cheveley called a "grumbling assent " to the price, 
 
 V. Fuller, 13 C. B. 122 ; as to an immate- which was held sufficient ] 
 
 [133] 
 
CH. IV. § III.] LETTERS OPERATING AS AGREEMENTS. 197 
 
 at the date of the contract, but the purchaser altered the contract 
 by reducing the deposit to 1,200^., which the owner rejected, and 
 required the 1,500Z. to be paid at a short day, and the purchaser 
 then offered to pay the 1,500Z. on a day somewhat later, to which 
 delay the owner objected, it was held that the contract was not 
 a binding one, and that the owner had a right to impose the 
 stipulations as to the deposit as a condition of entering into the 
 contract.(A;) 
 
 13. Where an owner intended to have a premium on granting 
 a lease, and instructed his agent to inform an intended lessee of 
 it, which the agent did not do, although the principal assumed 
 that he had ; the party proposing to take the lease wrote to the 
 owner, proposing to take the lease " on the terms already agreed 
 upon," (1) to which the latter replied accepting the proposal, and 
 the agreement was held to be binding at law, notwithstanding 
 the mistake, and the equitable defence could not be sustained. 
 The letters constituted an agreement, and it was immaterial that 
 the defendant mentioned his intention to his agent, as it was not 
 also mentioned to the lessee, which was a matter for the jury.(^) 
 14. An acceptance by an owner of an offer by letter will bind 
 him from the time he posts his letter, although it is not received 
 by the purchaser until the following day ; and would, it seems, 
 be binding if the vendor died on the same day on which he 
 posted his letter.(OT) 
 
 (k) Honeyman v. Marryat, 21 Beav. 14, {I) Wood v. Scarth, 1 Fos. & Fin. 293. 
 
 affd 6 H. L. Gas. 112. [The defendants (m) Potter v. Sanders, 6 Hare, 1; Duncan 
 
 by letter, offered to sell a piece of land to v. Thomas, 8 C. B. 225 ; [Chitty Contr. 
 
 the plaintiff at a certain price. The letter (10th Am. ed.) 10-12, & note & cases cited ; 
 
 concluded: "There will be the usual Moore v. Pierson, 6 Clarke (Iowa), 279. 
 
 clauses in the contract and some limita- The letter of acceptance must be actually 
 
 tions as to the length of the title to be placed in the pos^office, directed to the 
 
 shown, and other minor details." It was proper place ; if directed to a place where 
 
 determined that this offer, with the accept- the party sought to be bound by it, only 
 
 ance of it in writing, did not constitute a sometimes resorts, it must be proved to 
 
 contract which the court could enforce, have been received. Potts v. Whitehead, 5 
 
 owing to the uncertainty as to the clauses C. E. Green (N. J.), 55. And it must be 
 
 to be inserted, and as to the length of title placed in the post-oifice within the time 
 
 to be shown. Rummens k. Robins, 3 De G., limited, or before the offer is withdrawn. 
 
 J- & S. 88.] Potts V. Whitehead, 5 C. B. Green, 59.] 
 
 (1) Of course the letters contained the terms, although it is not so stated in the 
 report. 
 
198 
 
 LETTERS OPERATING AS AGREEMENTS. [CH. IV. § III. 
 
 15. And although a given time be named in the offer for the 
 acceptance of it, yet it may be retracted at any time before it is 
 actually aceepted.(M) 
 
 16. And where a letter or other writing do not in itself evi- 
 dence all the terms of the engagement by which the person sign- 
 ing it consents to be bound, but it requires from the other party 
 not a simple assent to the terms stated, but a special acceptance 
 which is to supply a further term of the agreement ; such special 
 acceptance must be * expressed in writing, for otherwise the 
 whole agreement will not be in writing, within the statute.(o) 
 
 17. The note or writing must specify the terms of the agree- 
 ment.(oi) Thus, upon the sale of nine houses which were in 
 
 As to a mistake in putting a date to the 
 letter in advance, 1 H. L. Cas. 396. [It 
 seems now to be settled, that as soon as 
 the letter leaves the post-office, or, in the 
 progress of its transmission, is beyond the 
 control of the writer, the acceptance is 
 complete. See Tayloe v. Merchants' Fire 
 Ins. Co. 9 How. (U. S.) 390; Vassar v. 
 Camp, 14 Barb. 341 ; S. C. 1 Kernan, 441 ; 
 Clark V. Dales, 20 Barb. 42; Myers v. 
 Smith, 48 Barb. 614 ; Trevor v. Wood, 36 
 N. Y. 307 ; Hebb's case, L. E. 4 Eq. 9 ; 
 Hutcheson v. Blakeman, 3 Met. (Ky.) 80; 
 Chiles V. Nelson, 7 Dana, 281 ; 2 Kent 
 (nth ed.), 477, & note; The Palo Alto, 
 Ware J. Davies, 357 ; Hamilton v. Lycom- 
 ing Ins. Co. 5 Barr, 339 ; Levy v. Cohen, 
 4 Geo. 1 ; Mactler v. Frith, 6 Wend. 104 ; 
 Brisban v. Boyd, 4 Paige, 17 ; Averill v. 
 Hedge, 12 Conn. 436; Wheat v. Cross, 31 
 Md. 99; Story Sales (4th ed.), §§ 129- 
 133. The offer must be accepted within a 
 reasonable time, or the party making it 
 will not be bound. Peru v. Turner, 1 Falrf. 
 185 ; Wilson v. Clements, 3 Mass. 1 ; 
 Johnston v. Fessler, 7 Watts, 48 ; Martin 
 V. Black, 21 Ala. 721 ; Kennedy v. Lee, 3 
 Mer. 454 ; Thornbury v. Bevill, 1 Y. & Col. 
 C. C. 554, 563; Williams v. Williams, 17 
 Beav. 213. The contract is made at the 
 place where it is assented to, or the offer 
 accepted. M'lntyre v. Parks, 3 Met. 207.] 
 (n) Eoutledge v. QreLnt, ubi sup. ; Thorn- 
 bury V. BeviU, 1 Y. & Col. C. C. 554; 
 
 [134] 
 
 Martin v. Mitchell, 2 J. & W. 413, 428 ; 
 Lucas V. James, 7 Hare, 410; [See Potts 
 V. Whitehead, 5 C. E. Green (N. J.), 59.] 
 
 (o) Boys V. Ayerst, 6 Mad. 316 ; see 
 Trotman v. Flesher, 3 Giff. 1 ; [Taylor v. 
 Portington, 1 Jur. N. S. 1057 ; 7 De G., 
 M. & G. 328.] 
 
 (oi) [The rational rule seems to be that 
 ths memorandum must contain the sub- 
 stantial tei'ms of the contract, expressed 
 with such certainty that they may be un- 
 derstood from the contract itself, or some 
 other writing to which it refers, without 
 resorting to parol evidence. Buck v. Pick- 
 well, 27 Vt. 167 ; see Ives v. Hazard, 4 E. 
 I. 14; Potts V. Whitehead, 5 C. E. Green, 
 55; Atwood v. Cobb, 16 Pick. 227, 230; 
 Heiss V. Cronan, 12 La. Ann. 213 ; Massey 
 V. Hackett, 12 La. Ann. 54 ; McConnell v. 
 Brillharte, 17 111. 354 ; Chase v. Lowell, 7 
 Gray, 33 ; Smith v. Arnold, 5 Mason, 414 ; 
 Ide V. Stanton, 15 Vt. 685 ; Meadows v. 
 Meadows, 3 McCord, 458; Adams v. 
 M'Millan, 7 Port. 73 ; Pipkin v. James, 1 
 Humph. 325 ; Kay v. Curd, 6 B. Mon. 100 ; 
 Nichols V. Johnson, 10 Conn. 192 ; Higdon 
 V. Thomas, 1 Harr. & G. 139 ; Hurley v. 
 Brown, 98 Mass. 547 ; Sherburne v. Shaw, 
 1 N. H. 157 ; Webster v. Ela, 5 N. H. 540 ; 
 Anderson v. Harold, 10 Ohio, 397. But 
 the memorandum need not detail all the 
 particulars of the contract. Shaw C. J. 
 in Atwood v. Cobb, 16 Pick. 230; Ives y. 
 Hazard, 4 R- I- 14.] 
 
CH. IV. § III.] LETTERS OPERATING AS AGREEMENTS. 
 
 199 
 
 mortgage, the vendor wrote a letter to the mortgagee to this 
 effect, " Mr. Leonard, pray deliver my writings to the bearer, I 
 having disposed of them. Am, &c." The vendor afterwards re- 
 fused to perform the contract, and a plea of the statute to a bill 
 filed by the purchaser was allowed ; because it ought to be such 
 an agreement as specified the terms thereof, which this did not, 
 for it mentioned not the sum that was to be paid, nor the num- 
 ber of houses that were to be disposed of; whether all, or some, 
 or how many ; nor to whom they were to be disposed of; 
 neither did this letter mention whether they were disposed of by 
 way of sale or assignment of lease : (p) but where the property 
 is described generally as " Mr. O.'s house," parol evidence has al- 
 ways been admitted to show to what house the treaty related. (g') 
 
 (p) Seagood v. Meale, Pre. C. 560 ; Rose 
 V. Cunynghame, 11 Ves. 550 ; Card v. Jaf- 
 fray, 2 Sch. & Lef. 374 ; Ld. Ormond v. 
 Anderson, 2 Bal. & Beat. 363 ; Champion 
 V. Plumnier, 1 New E. 252 ; Hinde v. 
 Whitehouse, 7 East, 558 ; Cooper v. Smith, 
 15 East, 103 ; Richards v. Porter, 6 B. & 
 C. 437 ; Graham v. Musson, 7 Sco. 769 ; 
 all five cases on the seventeenth section ; 
 Price V. Griffith, 1 De G., M. & G. 80 ; 
 Skelton v. Cole, 1 De G. & J. 587. 
 
 (?) Ogjlvie V. Foljambe, 3 Mer. 53; 
 Bleakley v. Smith, 11 Sim. 150. ["B.'s 
 right in C.'s estate,'' was held sufficiently 
 certain. Uichols u. Johnson, 10 Conn. 
 192 ; so " my house," Cowley v. Watts, 17 
 Jur. 172 ; " the property in Cable Street," 
 Bleakley v. Smith, 1 1 Sim. 1 50 ; " the house 
 in Newport," Owen v. Thomas, 3 My. & K. 
 353 ; " the intended new public-house at 
 Putney," Wood v. Scarth, 2 K. & J. 33 ; 
 " the premises," Wood v. Scarth, 2 K. & J. 
 33 ; M'Murray v. Spicer, 16 W. R. 332 ; 
 " a house and lot of land situated on 
 Amity Street, Lynn, Mass.," the vendor 
 owning one and only one house and lot of 
 land on that street ; Hurley v. Brown, 98 
 Mass. 545 ; " the mill property, including 
 cottages, in Bsher village," McMurray v. 
 Spicer, L. R. 5 Eq. 527; have all been 
 deemed sufficient where parol evidence can 
 be produced to show what property was 
 intended. But a contract " for the sale of 
 
 the houses in Smithfield Street," without 
 any further designation of the situation, 
 size, material of, and area of ground em- 
 braced by the houses, and without disclos- 
 ing to whom they belonged at the date of 
 the alleged contract, is not sufficiently cer- 
 tain to be enforced by a specific execution 
 in equity ; Hammer v. McEldowney, 46 
 Penn. St. 334; so an agreement to convey 
 " a piece of land," containing nothing else, 
 either in itself or by reference, to aid in 
 identifying the boundaries, cannot be en- 
 forced. Whelan v. Sullivan, 102 Mass. 
 204. And in King v. Ruckman, 5 C. E. 
 Green (N. J.), 316,359, specific perform- 
 ance was refused of an agreement in which 
 the description was simply, " also two lots 
 of land in Hackensack township, county 
 of Bergen." The chancellor said : " It 
 does not describe them as two lots owned 
 by him, for then if he owned only two lots 
 there it might be rendered certain. This 
 contract would be complied with by his 
 conveying two lots of ten fefit square, or 
 two lots containing one thousand acres. 
 What the lots were must be ascertained by 
 parol, in the face of the statute of frauds." 
 This ease seems at variance with Hurley 
 V. Brown, 98 Mass. 545. See King v. 
 Ruckman, 6 C. E. Green (N. J.) 599 ; Carr 
 V. Passaic Land Imp. & Building Co. 7 
 C. E. Green (N. J.), 85. For other cases 
 relating to the sufficiency of memoran- 
 
200 
 
 LETTERS OPERATING AS AGREEMENTS. [CH. IV. § III. ■ 
 
 An agreement by A. to pay 625^, for the cottage and stable, B. 
 paying the expenses of the lease held by Mr. Smith, was held to 
 be invalid, as that imported that a lease was to be granted with- 
 out showing what.(r) 
 
 18. So where the memorandum was in these words, " Sold 
 100 Mining Purdy's, at V7s. 6d., J. Greene," it was held insuf- 
 ficient, as the names of both the buyer and the seller were not 
 mentioned in it.(s) 
 
 19. So where {t) upon a parol agreement, the vendor sent a 
 letter to the purchaser, informing him that, at the time he con- 
 tracted for the sale, the value of the timber was not known to 
 him, and that he (the purchaser) should not have the estate, un- 
 less he would give a larger price ; Lord Hardwicke held, that the 
 letter could not be sufficient evidence of the agreement, the terms 
 of it not being mentioned in the agreement itself. 
 
 20. Nor can an auctioneer's receipt for the deposit be set up as 
 an agreement, unless it state the price, or it can be collected from 
 the amount of the deposit, where it appears what proportion it 
 bore to the price, (m) 
 
 dums to identify property sold ; see Gowen 
 V. KlottS, 101 Mass. 449 ; Farwell u. 
 Mather, 10 Allen, 324; Murdock v. An- 
 derson, 4 Jones Eq. 77 ; Pugh v. Chessel- 
 dine, 1 1 Ohio, 399 ; Fessenden v. Mussey, 
 11 Gush. 127; Meadows v. Meadows, 3 
 McGord, 458 ; Pipkin v. James, 1 Humph. 
 325 ; Shaver v. Shoemaker, Phill. N. G. 
 Eq. 327; Little v. Pearson, 7 Pick. 301, 
 303 ; Hooper v. Laney, 39 Ala. 338. 
 
 (r) Cox V. Middleton, 2 Drew. 209; 
 [Davis V. Jones, 25 L. J. N. S. C. P. 91 ; 
 Eitzmaurice v. Bayley, 9 H. L. Gas. 78 ; 
 Farwell v. Mather, 1 Allen, 322 . A stipu- 
 lation on the sale of a foundry, that " a 
 large portion " of the purchase money was 
 to be left in the business, was considered 
 uncertain. Gooper v. Hood, 26 Beav. 293.] 
 
 {s) Boyce v. Green, Bat. 608 ; M'Lean 
 V. NicoU, 7 Jur. N. S. 999; [Nichols v. 
 Johnson, 10 Gonn. 192 ; Sherburne v. 
 Shaw, l.N.H. 157 ; Webster v. Ela, 5 N. 
 H. 540 ; Anderson v. Harold, 10 Ohio, 399.] 
 
 (i) Glerk v. Wright, 1- Atk. 12 ; Glinan 
 V. Cooke, 1 Sch. & Lef. 22. 
 
 (m) Blagden u. Bradbear, 12 Ves. 466 ; 
 Elmore v. Kingscote, 5 B. & C. 583 ; [Mor- 
 gan V. Milman, 17 Jur. 193; 3 De G., M. 
 
 6 G. 24. The price may be stated in the 
 memorandum in any words or figures 
 which clearly indicate, as applied to the 
 subject, what that price is. If the figures 
 or letters, or both, used in the memoran- 
 dum, do in fact, and in the light of a pre- 
 vailing usage, afford this information, the 
 memorandum to that extent is suiBcient. 
 Gowen v. Klous, 101 Mass. 454; Salmon 
 Falls Manuf. Co, i,. Goddard, 14 How. {U. 
 S.) 446 ; Spicer v. Gooper, 1 Q. B. 424 ; 
 see Ide u. Stanton, 15 Vt. 685 ; Meadows 
 V. Meadows, 3 McGord, 458 ; Adams v. 
 M'MUlan, 7 Port. 73 ; Johnson v. Ronald, 
 4 Munf. 77 ; Smith v. Arnold, 5 Mason, 
 414 ; Langstaff v. Nicholson, 25 Beav. 
 160; Carr v. The Passaic Land Imp. & 
 Building Go. 4 C. E. Green, 424; S. G. 
 
 7 C. E. Green (N. J.), 85. The follow- 
 ing memorandum, namely, " It is agreed 
 that B. is to have the refusal of a certain 
 farm situated, &c., which was bought by 
 
CH. IV. § III.] LETTERS OPERATING AS AGREEMENTS. 
 
 201 
 
 21. In general the consideration appears plainly upon the 
 face of *the agreement, namely, the price. An undertaking by 
 a solicitor, whose client had made default in completing a pur- 
 chase, that he (the solicitor) would settle the purchase within 
 two months, was held to be a memorandum of a contract in 
 consideration that the seller would accept the offer, sufficiently 
 showing the consideration to satisfy the fourth section of the 
 statute, (a;) 
 
 22. Where an agreement was executed which referred to cer- 
 tain covenants, which had been read, contained in a described 
 
 me for the sum of $1,940, upon his com- need not appear in the written memoran- 
 
 plying with certain conditions from the dum. See Chitty Cont. (10th Am. ed.) 
 
 first day of April next, which conditions 67, u.,(i), & cases cited ; Ivory v. Murphy, 
 
 the aforesaid B. has complied with," was 36 Missou. 534. But in some of the States, 
 
 held sufficiently to indicate the price of it is necessary that the consideration should 
 
 the land to be conveyed. Bird v. Eich- be expressed in the writing. Chitty Contr. 
 
 ardson, 8 Pick. 252. In Atwood v. Cobb, 
 16 Pick. 227, the writing signed by both 
 parties was as follows : " This certifies that 
 I have sold to N. A.," the plaintiff, " about 
 five acres of land, more or less, being the 
 same which I bought of him, in considera- 
 tion of the same sum which I paid him for 
 the same, with interest from the time I 
 purchased the same, till I paid for it (sup- 
 posed about six months), with the expense 
 of the deed, also the taxes for one year." 
 This memorandum was held to be suffi- 
 ciently certain both as to the price, and as 
 to the time within which the contract was 
 to be executed. In Texas the statute of 
 frauds does not require that the price to 
 be paid for land sold shall be evidenced l»y 
 writing. Adkins v. Watson, 12 Texas, 199. 
 In Tennessee, if the recital Is " for and in 
 
 consideration of dollars received," 
 
 iftid proof of the amount is for any reason 
 necessary, it may be shown by parol evi- 
 dence. Whitby V. Whitby, 4 Sneed, 473. 
 By express provision of statute in Massa- 
 chusetts, the consideration of the agree- 
 ment need not be set forth or expressed in 
 the written memorandum signed by the 
 party to be charged therewith, but may be 
 proved by any other legal evidence. Gen. 
 Sts. c. 105, § 2. There are other states 
 in which a statement of the consideration 
 
 (10th Am. ed.) 67, note (t) & cases cited; 
 Howard v. Holbrook, 9 Bosw. (N. Y.) 237. 
 Whether in any of those States in which 
 the consideration need not be set forth in 
 the writing, a memorandum of an agree- 
 ment which did not express the price agreed 
 upon would be deemed insufficient for that 
 cause. Qucere t ] / 
 
 {x) Powers v. Fowler, 4 E. & B. 511 ; 
 23 L. T. Ex. Ch. 203. [Next preceding 
 note. It appears probable that a general 
 agreement to sell "at a fair valuation," 
 may be enforced ; and the court will, if 
 necessary, direct a reference to ascertain 
 the price. See Milnes v. Gery, 14 Ves. 
 400, 407 ; Lord Lonsdale v. Gaskarth, 
 cited 12 Ves. 108 ; Gregory v. Mighell, 
 18 Ves. 328, 334 ; Pritchard v. Ovey, 1 J. 
 & W. 396 ; Price v. Assheton, 1 Y. & 0. 
 82, 441 ; Potts v. Thames Haven Op. 15 
 Jur. 1004; Morgan v. Millman, 17 Jur. 
 193 ; 3 De G., M. & G. 24. But see Gour- 
 lay V. Duke of Somerset, 19 Ves. 430; 
 Agar V. Macklew, 2 S. & St. 418 ; Logan 
 V. Le Mesurier, 6 Moo. P. C. 132. So 
 where no time is fixed in the writing for 
 the completion of the contract, it must be 
 executed within a reasonable time. At- 
 wood V. Cobb, 16 Pick. 227. Where a 
 mode of valuation is fixed it must be 
 strictly followed. Post, 140.] 
 
 [136] 
 
202 LETTERS OPERATING AS AGREEMENTS. [CH. IV. § III. 
 
 paper, which, in fact, contained the terms of the agreement ; it 
 appeared that all the covenants had not been read ; and which 
 of them "had been read, and which had not, was the difficulty to 
 be solved by parol testimony; and such evidence was held to be 
 inadmissible.(2/) 
 
 23. Neither will a performance be compelled on a note or let- 
 ter, if any error or omission, however trifling, appear in the es- 
 sential terms of the agreement. (^^) 
 
 54. In a case,(z) where the bill was brought for a specific per- 
 formance, from letters which had passed between the parties ; it 
 appeared' that a certain number of years' purchase was to he 
 given for the land, but it could not be ascertained whether the 
 rents upon a few cowgates were 5s. or Is. ; and although there 
 was no other doubt, Lord Hardwicke held that such an agree- 
 ment could not be carried into execution. He said that in these 
 cases it ought to be considered whether at law the party could 
 recover damages ; for if he could not, the court ought not to 
 carry such agreements into execution.(l) 
 
 25. If the property be not identified, but is capable of being so 
 by the reference in the agreement or letter, that is sufficient ; (z^) 
 therefore a letter written by the seller to the purchaser's solicitor, 
 stating that " he had sold the house, &c., in Newport to Mr. 
 Owen for one thousand guineas, the money to be paid as soon 
 
 iy) Brodie ». St. Paul, 1 Ves. jr. 326 ; Price v. Assheton, 1 Yo. & Col. 441 ; Ken- 
 
 Higginson v. Clowes, 15 Ves. 516 ; Lind- worthy v. Schefield, 2 B. & C. 945 ; 3 
 
 say V. Lynch, 3 Sch. & Lef. 1 ; 1 Sch. & Taunt. 173. 
 Lef. 38 ; O'Herlihy v. Hedges, lb. 123. (s^ [But it is otherwise, when the refer- 
 
 (yi) [See per Shaw C. J. in Atwood v. enee in the writing for the identity of the 
 
 Cobh, 16 Pick. 230, 231.] piftperty, is to a verbal agreement between 
 
 (a) Ld. Middleton v. Wilson, et e contra, the parties, either subsisting or afterwards 
 
 Chan. 1741, MS. ; Lofft, 801 ; 9 Ves. 252 ; to be made. Hyde v. Cooper, 13 Rich. 
 
 Stokes y. Moore, 1 Cox, 219; Popham (S. C.) Eq. 250 ; see Whcelan w. Sullivan, 
 
 K. Eyre, Lofft, 786 ; Gordon ». Trevelyan, 102 Mass. 206 ; Waterman v. Meigs, 4 
 
 1 Pri. 64 ; Blore v. Sutton, 3 Mer. 237 ; Cush. 497.] 
 
 (1) The case is in Reg. Lib. 1741, fo. 260, by the name of,Ld. Middleton v. Eyre. 
 The estate was sold by an agent to Dr. Wilson, by parol, and the parties appear to 
 have bound themselves by letters, the particulars of which do not appear in the regis- 
 ter's book. The parties beneficially interested afterwards sold the estate for a greater 
 price to Ld. Middleton, who filed a bill for a specific performance of the agreement, 
 and Dr. Wilson filed a cross-bill. The cross-bill was dismissed with costs, and in the 
 original cause a specific performance was decreed. The point in the text is not stated 
 in the register's book. 
 
CH. IV. § m.] LETTERS OPERATING AS AGREEMENTS. 203 
 
 as the deeds can be had from Mr. Deere," was held valid, as 
 the deeds would show what house was the subject of the con- 
 tract, (a) 
 
 * 26. So although a letter do not in itself contain the whole 
 agreement, yet if it actually refer to a writing that does, that 
 will be sufficient, although such writing is not signed.(ai) Thus 
 where an estate was advertised to be let for three lives, or thirty- 
 one years, and an agreement was entered into for a lease, in 
 which the term for which it was to be granted was omitted ; Lord 
 Redesdale held, that if the agreement had referred to the adver- 
 tisement, oral evidence might have been admitted to show what 
 was the thing (namely, the advertisement) so referred to, for then 
 it would be an agreement to grant for so much time as was ex- 
 pressed in the advertisement ; and then the identity of the adver- 
 tisement might be proved by parol evidence.(6) And Sir William 
 Grant thought that a receipt which did not contain the terms of 
 the agreement might have been enforced as an agreement, had 
 it referred to the conditions of sale, which would have entitled 
 the court to look at them for the terms, (c) 
 
 27. A letter from the agent of an owner (in reply to a letter 
 from an intended lessee, asking for a copy of the agreement), 
 stating that instructions had been given to a solicitor to prepare 
 the agreement, and that the terms had been arranged, was held 
 to be of no avail, although full instructions in writing had been 
 left with the solicitor, as the particular paper containing the 
 terms was not referred to. It was said that the letter could not 
 be considered stronger as an agreement than if he had written : 
 " I have entered into an agreement with you to lease the estate, 
 and I have desired the solicitor to prepare a lease according to 
 
 {a) Owen v. Thomas, 3 My. & Ke. 353. Cass v. Waterhouse, Pre. C. 29 ; Hinde v. 
 
 So as to other expressions, Skinner v. Whitehouse, 7 East, 558 ; Feoffees Heriot's 
 
 McDouall, 2 De G. & Sm. 265. Hosp. v. Gibson, 2 Dow, 301 ; Powell v. 
 
 (ai) [Chitty Contr. (10th Am. ed.) 70 Dillon, 2 Bal. & Beat. 416 ; Jacob v. Kirk, 
 
 & note (6); Lowry v. Dufferin, 1 Irish 2 Mo. & Eo. Ca. 221. 
 
 Eq. 281. A letter signed by the principal, .(c) Blagden </. Bradbear, 12 Ves. 466; 
 
 referring to his agent's unauthorized con- Shippey v. Derrison, 5 Esp. 190 ; Hinde v. 
 
 tract, and adopting it, will render the Whitehouse, 7 East, 558 ; Kenworthy v. 
 
 contract valid under the statute of frauds Schofield, 2 B. & C. 945 ; Tur. & Rus. 2 ; 
 
 as if made originally by him. Newton v. Carroll v. Cowell, 1 Jeb. & Sy. 43 ; Wood 
 
 Brouson, 3 Kernan, 587.] v. Midgley, 2 Sm. & Gif. 115, 2 Eq. R. 
 
 (6) Clinan v. Cooke, 1 Sch. & Lef. 22 ; 729. 
 
 [136] 
 
204 LETTERS AS AGREEMENTS. OFFERS. [CH. IV. § III. 
 
 the terms arranged between us ; " and that would not be a 
 valid contract withiii the statute.(rf) The question in the prin- 
 cipal case appears to have been whether the particular paper, 
 namely, the written instructions, was not sufficiently identified 
 by the letter. Upon an appeal to the House of Lords,(e) it was 
 held that the instructions could be connected with the agree- 
 ment so as to constitute a valid contract within the statute.(ei) 
 Where it is sought to bind the principal to terms by a letter from 
 his solicitor, it must of course be shown that the latter had power 
 to settle the terms of the contract.(/) 
 
 28. If, after an offer and before it is accepted, the party making 
 the offer become a bankrupt, the offer has no longer validity, be- 
 cause * the interest is transferred to the assignees, and the offer 
 does not bind the land.(g-) 
 
 29. Where a written offer or proposal to sell was sent by the 
 owner to A., followed by another letter from the owner to A., 
 stating that he had just received A.'s note (which did not appear), 
 and was glad he had determined to purchase the farm, and con- 
 cluded that he would write to B. (who had made an offer for the 
 estate) to inform him he had agreed to purchase the estate ; Sir 
 W. Grant thought that his letter plainly implied that he had 
 offered to sell upon some terms in which he understood A. to 
 have acquiesced, for it was evidently not an assent to any terms 
 then first proposed to him. The proposal was in the seller's 
 handwriting, and, coupling that with the letter, it amounted to 
 an agreement signed by the party to be charged within the fourth 
 section. (/t) In this case, therefore, the words were spelled, with a 
 view to collect from them that some proposal had preceded 
 them, and that being made out, parol evidence was admitted to 
 prove the proposal in writing, which had actually been sent. 
 
 30. So an agreement not containing the name of the buyer or 
 seller, may be made out by connecting it with a letter from him 
 
 (d) Ridgway v. Wharton, 3 De G., M. Ap. 508, is to the same effect. See Ridg- 
 
 6 G. 677, 2 Eq. R. 861 ; Wood v. Midg- way v. Wharton, 3 De G., M. & G. (Am. 
 ley, 2 Sm. & Gif. 115 ; 5 De G., M. & G. ed.) 697, note (1) and oases.] 
 
 41. (/) Fovster v. Rowland, 7 H. & N. 103, 
 
 (e) 6 H. L. Gas. 238; see Skelton v. (g) Meynell </. Surtees, 25 L. J.N. S 
 Coles, 1 De G. & J. 587 ; Lee v. Griffin, 257 ; 3 Sm. & Gif. 101. 
 
 7 Jur. N. S. 1302, a case on the 17th sect. {h) Western v. Russell, 3 Ves, & Bea 
 
 (e') [Baumann v. James, L. R. 3 Oh. 187. 
 
 [137] 
 
CH. IV. § III.] LETTERS OPERATING AS AGREEMENTS. 205 
 
 on the subject,(t) or with the conditions of sale, where they are 
 referred to by the agreement, and contain the name. (A;) 
 
 31. The cases establish this principle : that where a contract 
 or a note in writing exists which binds one party, any subsequent 
 note in writing signed by the other is sufficient to -bind him, pro- 
 vided it either contains in itself the terms of the contract, or re- 
 fers to any writing which contains them ; (l) but we may observe, 
 that such a note in writing would bind the party who signs it, 
 although there was no contract or note in writing existing which 
 bound the other party.{/^) 
 
 32. Where an agreement for sale was reduced into writing, 
 but not signed, owing to the vendor having failed in an appoint- 
 ment for that purpose ; the vendee's agent wrote to urge the 
 signing of the agreement; and the vendor wrote in answer a 
 letter, in which, after stating his having been from home, he said, 
 " his word should always be as good as any security he could 
 give." And this was held by Lord Thurlow to take the case 
 out of the statute, as clearly referring to the written instru- 
 ment.(m) Still a man may say, I have agreed, but I will not 
 sign an agreement; that is no fraud. (w) 
 
 33. * But in these cases there must be a clear reference to the 
 particular paper, so as to prevent the possibility of one paper 
 being substituted for another.(o) Where the contract is ma^e 
 
 (i) Allen !).Bennet,3 Taunt 199; West- Coombs, 3 Sm. & Gif. 449 ; 1 De G. & J. 
 
 cm V. Russell, 3 Ves. & Boa. 187; Dobell 34. 
 
 V. Hutchinson, 3 Ad. & El. 355 ; Warner (n) Wood v. Midgley, 5 De G., M. & G. 
 
 V. Willington, 3 Drew. 523 ; [Lerned v. 41 ; consider this case. [Bozza v. Rome, 
 
 Wannemacher, 9 Allen, 417.] 30 111. 198 ; Box v. Stanforcj, 13 Sm. & M. 
 
 (t) Laythoarp v. Bryant, 2 Bing. N. C. 93. Seapost, 150, 151, and cases in note 
 
 735. (a).] 
 
 (I) Dohell V. Hutchinson, 3 Ad. & El. (o) Boydell y. Drummond, 11 East, 142. 
 
 371 ; sup. [See Jacob v. Kirk, 2 Moo. & R. 221 ; Price 
 
 (P) [Mizell V. Burnett, 4 Jones (Law), v. Griffith, 1 De G., M. & G. 180 ; Moale v. 
 
 249.] Buchanan, 11 Gill & J. 314; Smith r Ar- 
 
 (m) Tawney v, Crowther, 3 Bro. C. C. nold, 5 Mason, 416 ; Morton v. Dean, 13 
 
 161, 318, 320 ; Forster v. Hale, 3 Ves. 696 ; Met. 388 ; Ridgway v. Wharton, 3 De G., 
 
 Cooke V. Tombs, 2 Ans. 420 ; Saunderson M. & G. (Am. ed.) 677, 697, note (I ), and 
 
 V. Jackson, 2 Bos. & Pul. 238 ; 9 Ves. 250 ; cases cited ; S. C. 6 H. L. Cas. 238, 256, 
 
 Hoadly t). M'Lain, 10 Bing. 482; but see 257; Freeportu. Bartol, 3 Greenl.340; Ler- 
 
 1 Sell. & Lef. 34; Tanner v. Smart, 6 B. ned o. Wannemacher, 9 Allen, 416, 417; 
 
 & C. 603 ; Maunsel'l v. White, 1 Jo. & Adams v. M'Millan, 7 Port. 73 ; Kurtz v. 
 
 Lat. 567; 4 H. L. Cas. 1039; Pain v. Cummings, 24 Penn. St. 25. In Ridgway 
 
 [138] 
 
206 LETTEKS OPERATING AS AGREEMENTS. [CH. IV. § III. 
 
 out by several letters they must be so connected by written links 
 as to form one written contract; and it was said, in order to do 
 that, one letter must refer to the other expressly, and not merely 
 to the smbject of the contract.( jo) 
 
 34. In a case where the memorandum was " Sold 100 Mining 
 Purdy's, at 175. 6d., J. Greene," the purchaser insisted that the 
 defect in the memorandum was removed by the seller having 
 himself admitted the agreement by sending to the purchaser 
 another paper, containing these words: " I hereby undertake to 
 have transferred to Messrs. John & J. Boyce one hundred shares 
 in the Mining Company of Ireland, as soon as the books , are opened 
 for that purpose. Value received, 7th January, 1825. James 
 
 Greene." But it was held that this document could not answer 
 the objection made to the other, for it did not refer to it, and 
 could not be connected with it or called in aid of it ; and, be- 
 sides, this document varied from the other in two respects : first, 
 in the names of the parties ; for it was an undertaking to trans- 
 fer to Messrs. John & J. Boyce ; secondly, a certain condition 
 was introduced into it which was 'not in the other instrument.(^) 
 
 35. A. letter written as an abandonment of a contract cannot 
 operate, within the above rule, as a ratification of it so as to 
 supply the want of a signature to the original contract.(r) Yet 
 iq a case under the seventeenth section, where the purchaser of 
 goods wrote to the seller to say, " that the only parcel of goods 
 selected for ready money was the chimney glasses, amounting to 
 38/. 10s. 6d., which goods I have never received, and have long 
 since declined to have, for reasons made known to you at the 
 
 V. Wharton, 6 H. L. Cas. 238, " iustruc- documents and letters, written at various 
 
 tions" were referred to, and it was held that times, if they all appear to have relation 
 
 it might be shown by parol evidence that to it, and if coupled together, they contain 
 
 instructions had been given in writing, and by statement or reference all the essential 
 
 that there had been no other instructions parts of the bargain, signed by the party 
 
 than the written document which was pro- to be charged or his agent. Lerned v. 
 
 duced. Baumann v. James, L. R. 3 Ch. Wannemacher, 9 Allen, 416 ; Williams v. 
 
 Ap. 508, was similar. See Jackson u. Og- Bacon, 2 Gray, 391.] 
 
 lander, 2 H. & M. 465 ; Lee v. Mahoney, (5) Boyce v. Green, Bat. 608 ; [see 
 
 9 Iowa, 344 ; Moale v. Buchanan, 11 Gill Toomer v. Dawson, 1 Cheves, 68.] 
 
 & J. 314.] (r) Gosbell v. Archer, 2 Ad. & El. 500 ; 
 
 (p) Tyson v. Kitton, 3 Com. L. K. 705. 5 De G., M. & G. 46 ; see Warner v. Wil- 
 
 [The contract may be proved by parol, lington, 3 Drew, 523 ; Goodman v. Grif- 
 
 and the memorandum inay be supplied by fiths, 1 H. & N. 574. 
 
CH. IV. § in.J EECEIPTS, ETC. BY AUCTIONEERS. 207 
 
 time ; " the reason was, that the goods had been damaged in 
 the hands of the carrier — the first part of the letter was held to 
 be a sufficient note in writing of the bargain, and not to be 
 affected by the subsequent declaration that he did not intend to 
 be bound by the bargain, (s) 
 
 36. And if the agreement is defective, and the letter refers to 
 •a different contract from that proved by the opposite party, the 
 
 letter cannot be adduced as evidence of the contract set up. 
 The letter must be taken altogether, and if it falsify the contract 
 proved by the parol testimony, it will not take the case out of 
 the statute. (<) 
 
 37. As we shall hereafter see, an auctioneer is an agent law- 
 fully authorized for the vendor and purchaser within the statute. 
 Upon *the sale of estates by auction, a deposit is almost univer- 
 sally paid, for which the auctioneer gives a receipt, referring to 
 the particulars or indorsed on them, and amounting, in most 
 cases, to a vaKd agreement on the part of the vendor within the ' 
 statute.(M) And it seems that a bill of sale, or entry by the auc- 
 tioneer of the account of the sale, in his books, stating the name 
 of the owner, the person to whom the estate is sold, and the 
 price it fetched, would be deemed a sufficient memorandum of 
 the agreement to satisfy the statute.(2;) This, however, it clearly 
 would not, unless it either contained the conditions of the sale 
 and the particulars of the property, or actually referred to them, 
 so as to enable the court to look at them.(^) 
 
 38. Where the sale was made subject to conditions, which 
 were read by the auctioneer before the biddings commenced, but 
 were not attached to the catalogue, or referred to by it, the sale 
 was held to be void, although the auctioneer wrote the pur- 
 chaser's name and the price against the article in the catalogue. 
 The conditions, although in the room, formed no part of the 
 
 (s) Bailey v. Sweeting, 9 C. B. N. S. et inf. ; but see Mussell v. Cooke, Pre. C. 
 
 843 ; see Forster v. Eowland, 7 H. & N. 533 ; Charlewood v. Duke of Bedford, 1 
 
 103. Atk. 497; Eamsbottom v. Mortley, 2 
 
 (t) Cooper V. Smith, 15 East, 103 ; see Mau. & Sel. 445. 
 Houghton V. Morton, 5 Ir. C. L. Rep. 329. (y) Blagden v. Bradbear, ubi sup. ; 
 
 («) Blagden v. Bradbear, 12 Ves. 466, Hinde v. Whitehouse, 7 East, 558 ; [Mor- 
 
 et sup.; Gosbell v. Archer, 2 Ad. & El. ton v. Dean, 13 Met. 385; 2 Kent (11 th 
 
 500. , ed.), 537; O'Donnell v. Leeman, 43 
 
 {x) Emmerson v. Heelis, 2 Taunt. 33, Maine, 158; Knox v. King, 36 Ala. 367,] 
 
 [i39] 
 
208 LETTEES TO THIED PEESONS. ABSTEACTS, ETC. [CH. IV. § III. 
 
 thing signed. If the conditions had been separated from the 
 catalogue during the progress of the sale, still the signature to 
 the latter, made after the separation, would have been unavail- 
 ing, (z) Where the particulars and conditions were altered and 
 turned into an agreement for sale by private contract, and the 
 intended purchaser agreed to sign it, and the auctioneer signed 
 a " memorandum that Mr. T. Midgley had paid to him 591. as a 
 deposit in part of 1,000^. for the purchase of the Ship and Canal 
 public-house," &c., Me terms to be expressed in an agreement to 
 be signed as soon as prepared; the purchaser was held not to 
 be bound, for although the price was fixed, there were 'other 
 points to be determined. (a) 
 
 39. A note or letter, written by the vendor to any third person, 
 containing directions to carry the agreement into execution, will, 
 subject to the before mentioned rules, be a sufficient agreement 
 to take a case out of the statute. (6) And the same doctrine 
 applies to a letter written by a purchaser.(c) 
 
 40. The same construction must be put upon a letter, or a 
 series of letters, that would be applied to the case of a formal 
 instrument ; the only difference between them being, that a let- 
 ter or a correspondence * is generally more loose and inaccurate 
 in respect of terms, and creates a greater difficulty in arriving at 
 a precise conclusion. (rf) i 
 
 (z) Kenworthy v. Schofield, 2 B. & C. Goodwin v. Fielding, 4 De G., M. & 6. 
 
 945 ; [Morton v. Dean, 13 Met. 385 ; Gill 90 ; Bradford v. Eoulston, 8 Ir. C. L. Rep. 
 
 u. Bicknell, 2 Gush. 359; Knox y. King, 473; [see Moore v. Hart, 1 Vern. 110; 
 
 36 Ala. 367. But where a letter contain- Ayliffe v. Tracy, 2 P. Wms. 65 ; Fugatc v. 
 
 ing the terms of sale was pinned into an Hanford, 3 Litt. 262 ; Buck v. Pickwell, 
 
 auctioneer's sale-hook, and entries of pur- 27 Vt. 167 ; Clark v. Tucker, 2 Sandf. 
 
 chasers were afterwards made therein and 157; Kinloch v. Savage, 1 Spcers Ch. 
 
 signed by the auctioneer, these papers 470. But an oral agreement for the sale 
 
 taken together were considered a sufficient of land will not Tie specifically enforced 
 
 memorandum. Tallman v. Franklin, 4 against the heir of the vendor, although 
 
 Kernan (14 N. Y.), 584 ; see S. C. 3 Duer, the vendor had given instructions in writ- 
 
 395.] ing, stating the terms, to an attorney, to 
 
 (a) Wood V. Midgley, 2 Sm. & Gif. draw the deed of conveyance. Givens v. 
 
 115 ; 5 De 6., M. & G. 41 [(Am. ed.), 46, Calder, 2 Desaus. 172. But see Finacune 
 
 note (1).] u. Kearney, 1 Freem. Ch. 65, 69.] 
 
 (6) Welford u. Beazely, 3 Atk. 503; (c) Rose «. Cunynghame, 11 Ves. 550 ; 
 
 Seagood v. Meale, Pre. C. 560 ; Cooke v. [see Givens v. Calder, 5 Desaus. 172.] 
 
 Tomhs, 2 Ans. 420 ; Owen v. Thomas, 3 {d) 3 Mcr. 441 ; Ogilvie v. Foljambe, 3 
 
 My. & Ke. 353 ; Smith v. Watson, Bun. Mer. 53 ; Greene v. Cramer, 2 Con. & 
 
 55, MS. ; Leroux v. Brown, 12 C. B. 801 ; Law. 54. [It is not necessary that the 
 
 [140] 
 
CH. IV. § m.] LETTERS TO THIRD PERSONS. ABSTRACTS, ETC. 209 
 
 41. In Cooth V. Jackson,(e) Lord Rosslyn put the case of a 
 bond of reference to a surveyor, the price to depend upon his 
 valuation, only to ascertain how much an acre the purchaser 
 was to pay for the land. And he said he should conceive that 
 not to be within the statute.(l) 
 
 42. But rent rolls, particulars of estates, abstracts, &c., deliv- 
 ered by the vendor on the treaty for sale, will not be considered 
 as an agreement, although signed by him, and containing the 
 particulars of the agreement ; nor will letters written, or repre- 
 sentations made by him, to creditors, concerning the sale, receive 
 that construction. 
 
 •whole agreement should be comprised in a 
 single instrument or document ; nor that 
 it should be drawn up in any particular 
 form. It is sufficient, if the contract can 
 be plainly made out, in all its terms, from 
 any writings of the party, or even from 
 his correspondence. But it must all be col- 
 lected from the writings ; oral testimony 
 not being admissible to supply any defects 
 or omissions in the written evidence. 1 
 Greenl. Ev. § 268 ; 2 Cruise Dig. by Mr. 
 Greenleaf, tit. 32, ch. 3, § 3, & note ; 4 lb. 
 .51, note; 2 Kent (11th ed.), 511 ; Ide v. 
 Stanton, 15 Vt. 685; Adams o. McMillan, 
 7 Port. 73 ; Bailey v. Ogden, 3 John. 399 ; 
 Abeel a. Kadcliff, 13 John. 297; Park- 
 hurst V. Van Cortlandt, 1 John. Ch. 273 ; 
 Parker v. Bodley, 4 Bibb, 102 ; Baptist 
 Church in Ithaca v. Bigelow, 16 Wend. 28 ; 
 Merritt v. Clason, 12 John. 102 ; Lemed 
 V. Wannemacher, 9 Allen, 416. And 
 while the controversy is between the orig- 
 inal parties, all their contemporaneous 
 writings, relating to the same subject mat- 
 ter, are admissible in evidence. 2 Cruise 
 Dig. by Mr. Greenleaf, tit; 32, ch. 3, § 3, 
 in note ; Freeport v. Bartol, 3 Greenl. 
 340 ; ante, 136, pi, 26, 138, pi. 33, & note. 
 As to connecting one letter with another. 
 
 although there is no express reference, see 
 Vernander v. Codd, T. & E. 352 ; Greene 
 V. Cramer, 2 Con. & L. 54 ; Skinner «. 
 McDouall, 2 De G. & S. 265 ; Hamilton v. 
 Terry, 11 C. B. 954; Fyson v. ICitson, 3 
 C. L. E. 705 ; Alcock v. Delay, 4 El. & 
 Bl. 560 ; Warner v. Willington, 3 Drew. 
 523 ; Wood v. Scarth, 2 K. & J. 33 ; Bau- 
 mann v. James, L. E. 3 Ch. Ap. 508 ; but 
 see Skelton v. Cole, 1 De G. & J. 587.] 
 
 (c) 6 Ves. 17. [Where the mode of val- 
 uation is specified, it must be strictly fol- 
 lowed ; as, where the price is to be deter- 
 mined by A. and B., or an umpire selected 
 by them, and they fail to agree upon the 
 price, or to name an umpire, the court can 
 give no relief. Milnes v. Gery, 14 Ves. 
 400 ; see Gourlay v. Duke of Somerset, 
 19 Ves. 431 ; Collins v. Collins, 26 Beav. 
 306 ; Esply Scott v. Corp. of Liverpool, 3 
 De G. & J. 334, 367 ; Scott v. Aveiy, 5 H. 
 L. Cas. 811 ; Vickers v. Vickers, L. E. 4 
 Eq. 559. So where it is to be settled by 
 arbitration. Morgan v. Milman, 17 Jur. 
 196 ; 3 De G., M. & G. 24, 35 ; Darbey v. 
 Whittaker, 4 Drew. 134 ; Tillett v. Char- 
 ing Cross E. Co. 26 Beav. 419 ; Brown v. 
 Bellows, 4 Pick. 179, 189, 190; Nuttingw. 
 Dickinson, 8 Allen, 540.] 
 
 (1) This has been carried very far. A father, in some proceedings to establish a case 
 of lunacy against his son-in-law after his daughter's death, swore to what he believed 
 he had stated on the marriage of his daughter in regard to her portion at his death, 
 and this was considered to be a sufficient memorandum of a contract under the statute : 
 observe the expression itself, Barkworth v. Young, 4 Drew. 1. 
 
 VOL. I. 14 
 
210 ABSTRACTS. XJNSIGNED AGEEEMENT, ETC. [CH. IV. § III. 
 
 43. Thus,(/) where A. agreed by parol with B. for the pur- 
 chase of lands ; shortly afterwards, a rent roll was delivered to 
 A., which B. dated and altered in his own handwriting; and it 
 was intituled, "Land agreed to be sold by B. to A. from, &c., at 
 twenty-one years' purchase, for the clear yearly rent." An ab- 
 stract of the title, also, stating the contract, was delivered by 
 A.'s agent, and also further particulars arjd papers at different 
 times. B. also wrote to several of his creditors, informing them 
 that he had agreed with A. for the sale of the estate, at twenty- 
 one years' purchase; referred tenants to A. as owner of the 
 estate ; and set up the contract as a bar to an elegit. B. after- 
 wards refused to perform the agreement ; and to a bill filed 
 for a specific performance, pleaded the statute, and the plea was 
 allowed. 
 
 44. So, upon a parol agreement for sale of lands, the vendor 
 gave the purchaser a particular of the property to be sold, with 
 the terms and conditions, all in his own handwriting, and signed 
 by him ; and it was afterwards delivered, by agreement of both 
 parties, to an attorney, to prepare the conveyance from, who pre- 
 pared a draft, and brought it to the parties, and they read over 
 and approved of it, and agreed to execute the same, whenever a 
 fair copy could be written out'; but the agreement was held to 
 be void.(g") 
 
 45. Although an agreement be reduced into writing by a per- 
 son present at the making of it, yet if the parties do not sign 
 it, they vJill not be bound by it ; [h] and the mere preparation of 
 a draft of * the conveyance which recites the agreement in the 
 usual terms, although approved of by the agents on both sides, 
 will not amount to an agreement.(i) But where a draft con- 
 
 (/) Whaley v. Bagenel, 1 Bro. P. C. 56. [A memorandum in writing express- 
 
 345. ing the writer's agreement to convey land, 
 
 {g) Cook V. Tombs, 2 Ans. 420 ; Cass but not subscribed by him, nor delivered 
 
 V. Waterhouse, Pre. C. 29 ; [see Hobby y. as a binding agreement, is not sufficient. 
 
 Finch, Kirby, 14.] within the statute of frauds, although he 
 
 {h) Gunter v. Halsey, Amb. 586 ; Whit- afterwards receives the purchase money, 
 
 chiu-ch V. Bevis, 2 Bro. C. C. 559 ; Rams- Sanborn v. Sanborn, 7 Gray, 142.] 
 bottom i!. Tunbridge, Ramsbottom v. (i) Mar. Townsend v. Bishop of Nor- 
 
 Mortley, 2 Mau. & Sel. 434, 445 ; Ld. wich, 1 Eop. H. & W. by Jac. 308, n. ; 
 
 Glengall v. Thynne, 1 Ke. 769 ; 2 Beav. Hubert v. Treherne, 3 Man. & Gra. 743. 
 245 ; 2 H. L. Gas. 131 ; Sugd. H. of L. 
 
 [141] 
 
CH. IV. § III.] UNSIGNED AGREEMENT. LETTERS, ETC. 211 
 
 tained all the terms of the agreement for a lease, and the in- 
 tended lessee wrote on the draft, and signed a memorandum 
 requesting the lessor to relet the premises, as it would be incon- 
 venient to him to perform his agreement for them, and for so 
 doing this should be his authority : this was, of course, held to 
 take the case out of the statute, for this was an adoption of the 
 agreement duly signed. (/c) 
 
 46. If an agreement contain all the terms, the sending of it, 
 as instructions to a person to prepare a proper agreement, will 
 not be deemed an intention to extend the agreement, but merely 
 to reduce it into technical language j and, therefore, it will, if in 
 itself sufficient, be binding.(i) But this supposed general rule 
 has been much shaken by the decision in the House of Lords of 
 the case of Ridgway v. Wharton, where it was considered that 
 the, sending of the agreement to a solicitor to reduce it into form, 
 is rather evidence that the parties do not intend to bind them- 
 selves until it is reduced into forni.(m) Yet every common 
 agreement for a lease requires to be put into form, and our courts, 
 if the. substantial terms are sufficiently expressed, will supply 
 collateral circumstances [or conditions] not contradictory, but 
 consistent with them, as virtually comprehended in the agree- 
 ment expressed ; and this applies even to an agreement made 
 out by letters passing between the parties.(w) 
 
 47. In a later case,(o) th'e purchaser's offer, by letter, to give a 
 stated price for the estate, was accepted by the vendor by letter, 
 and he added, " if you approve of the inclosed, sign the same, 
 and on the receipt of the deposit we will sign you a copy." Upon 
 a bill filed by the seller, the purchaser did not produce the in- 
 closure, and the agreement was held to be valid. 
 
 48. It should be observed that letters may be stated in a bill 
 as constituting the alleged agreement, or as evidence of an al- 
 leged parol agreement. In the first case, the defendant may in- 
 
 {k) Shippey v. Derrison, 5 Esp. 190. Plunk. 1 ; Thomas d. Dering, 1 Ke. 729; 
 
 [And it has been held that an instrument, see 6 H. L. Cas. 289, 293. 
 
 if invalid as a deed for want of a seal, may (m) 6 H. L. Cas. 238. 
 
 be valid as a contract for the sale of lands. (n) Stratford v. Bosworth, 2 Ves. & 
 
 Henry v. Root, 33 N. Y. 526.] Beav. 341. 
 
 (/) Powle V. JFreeman, MS. ; 9 Ves. (o) Gibbins o. Board of Asylum, 11 
 
 351; Dowling u. Maguire, 1 Rep. t. Beav. 1, 
 
212 OP THE SIGNATURE TO AN AGREEMENT. [CH. IV. § IV. 
 
 sist that they do not mate out a concluded agreement, and no 
 extrinsic evidence can be received ; in the latter he may plead 
 the statute of frauds.(j») 
 
 * SECTION IV. 
 
 OF THE SIGKATtlKE TO AN AaREEMEJFT. 
 
 1. Of specialties and parol contracts. 
 
 2. Of the place of the signature. — Signature 
 
 in form as witness valid. 
 
 g. But not a signature as an attesting wit- 
 ness. ' 
 
 8. Name of agent sufficient. 
 
 6. Initials suiEcient. 
 
 7. Signature on particulars and conditions of 
 
 sale. 
 
 8. Alterations of draft of conveyance, &c., 
 
 insufficient. i 
 
 9. Draft unstamped, evidence. 
 
 1. Before the statute of frauds, an agreement, although re- 
 duced into writing and signed, was not considered as a written 
 agreement unless sealed ; but it was regarded as a parol agree- 
 ment, and the writing as evidence of it. (a) The same rule pre- 
 vails since the statute of frauds ; (b) for the law of England rec- 
 ognizes only two kinds of contracts ; namely, specialties and parol 
 agreements, which last include all writings not under seal, as 
 well as verbal agreements not reduced into writing.(c)(l). The 
 statute maltes signing only requisite to the validity of a written 
 agreement ; if a man be in the habit of printing or stamping 
 instead of writing his name, he would be considered to have 
 signed by his printed name; (J) so a signature in pencil would 
 be sufficient.(e) 
 
 2. The signature required by the statute is to have the effect 
 
 (p) Birce v. Bletchley, 6 Mad. 17. v. Norris, 2 Man. & Sel. 286 ; [Lemed v. 
 
 (a) 1 Ch. Cas. 85. Wannemacher, 9 Allen, 416, 417 ; 2 Kent 
 
 (6) lid. Normanby v. Duke of Devon, (llth ed.), 511,] 
 
 2 Tree. 216. (e) Lucas v. James, 7 Hare, 410 ; [2 
 
 (c) Eann v. Hughes, 7 T. Eep. 350, n., Kent, 514 ; Clason v. Bailey, 14 John. 
 
 MS. ; Wheeler u. Newton, Pre. C. 16. 484; Merrit v. Clason, 12 John. 102; 
 
 {d) Saunderson o. Jackson, 2 Bog. & McDowel v. Chambers, 1 Strobh. Eq. 
 
 -Pnl. 238; 3 Man. & Gra. 756; Schneider 347.] 
 
 (1) In Dawson «. Ellis, 1 J. & W. 524, the court was of opinion that if A. con- 
 tract verb.ally to sell to B., and afterwards contract by -writing to sell to C, and then 
 convey the estate to B., he (B.) is not liable to perform the contract with C, although 
 he had notice of it before the conveyance. 
 
 [142j 
 
CH. IV. § :v.J SIGNATUEE AS A WITNESS. 213 
 
 of giving authenticity to the v)hole instrument; and where the 
 name is inserted in such a manner as to have that effect, it does 
 not much signify in what part of the instrument it is to be 
 found.(/) Therefore, the signing the name at the beginning of 
 the agreement will take it out of the statute ; as, if a person 
 write the agreement himself, and begin, " A. B. agrees to sell," 
 &c.(g') And such a signature will be sufficient, although a place 
 be left for a signature at the bottom of * the instrument. (A) But 
 an agreement drawn in the usual manner, and of course contain- 
 ing the names of the parties, and ending with " as witness our 
 hands," is not binding; if it was, every common draft sent by 
 one party to the other would bind him.(i) A party rhay be 
 bound by his signature, although he. subscribe in form as a wit- 
 ness.(A;) So, where a clerk of an agent duly authorized to treat 
 for a principal, signed an agreement thus i " Witness A. B. for 
 C. D., agent to the seller," it was holden to be out of the gtat- 
 ute.(Z) 
 
 3. But an agreement after a sale by auction signed by the 
 purchaser, and regularly witnessed by the auctioneer's clerk, who 
 had full authority to give receipts for him, and did give a sep- 
 arate receipt for the deposit, was of course held not to be so 
 signed as to bind the selier.(m) 
 
 4. Lord Eldon, in the case of Coles V. Trecothick, laid it 
 down, that where a person to be bound signs as, what he cannot 
 be, a witness, he cannot be understood to sign otherwise than 
 as principal. But the signature in that case was altogether 
 different from a simple signature as a witness, for though the 
 
 (/) Stokes V. Moore, inf.; AHen v. ». Tumour, 18 Ves. 175; Propei't w. Par- 
 
 Bennet, 3 Taunt. 169 ; Lobb v. Stanley, ker, 1 Eus. & My. 625 ; Bleakley v. Smith, 
 
 5 Q. B. 574 ; [Hawkins v. Chase, 19 Pick. 11 Sim. 150 ; [Penniman v. Hartshorn, 13 
 
 502; 2 Kent (11th ed.), 511 ; Penniman Mass. 87 ; hnt see Sanborn v. Sanborn, 7 
 
 V. Hartshorn, 13 Mass. 87 ; Higdon v. Gray, 142.] 
 
 Thomas, 1 H. & Gill, 139 ; Argenbright (h) Saunderson v. Jackson, 2 Bos. & 
 
 V. Campbell, 3 Hen. & Munf. 144, 198; Pul. 238. 
 
 Clason V. Bailey, 14 John. 484 ; M'Comb (i) Hubert v. Treherne, 3 Man. & Gr. 
 
 V. Wright, 4 John. Ch. 659, 663 ; Ander- 743, sup. 
 
 son V. Harold, 10 Ohio, 399 ; see Champ- [k) Welfordu. Beazely, 1 Ves. 6 ; 3 Atk. 
 
 lin V. Parish, 11 Paige, 405.] 503 ; 9 Ves. 251. 
 
 (g) Knight v. .Crockford, 1 Esp. 189 ; (/) Coles v. Trecothick, 9 Ves. 234 ; but 
 
 1 Bro. C. C. 410 ; 3 Esp. 182 ; 9 Ves. 248 ; see Blore v. Sutton, 3 Mer. 237. 
 
 Saunderson v. Jackson, 2 Bos. & Pul. 238 ; (m) Gosbell v. Archer, 2 Ad. & El. 500. 
 Cooper V. Smith, 15 East, 103 ; Morison 
 
 ri43] 
 
214 WHAT IS A SUFFICIENT SIGNATURE. [CH. IV. § IV. 
 
 person in that case called himself a witness, it is evident that he 
 could not have signed as such, since he signed for another per- 
 son, and it was the same thing as if he had signed merely " E. 
 Philips, for Mr. Smith, agent for- the seller."(«) This seems to 
 be the true distinction. Lord Denman C. J. observed that he 
 thought Lord Eldon's remark in Coles v. Trecothick open to 
 much observation. A witness might be drawn into transactions 
 which he did not contemplate, and of which he was ignorant. 
 That would be a great step to take ; no such decision had been 
 actually made, and if it had, he should pause, unless he found 
 it 'sanctioned by the very highest authority, before he held that 
 a party attesting was bound by the instrument.(o) But there 
 appears to be no foundation for the doubt thus thrown upon the 
 dictum of Lord Eldon, for he confines his observation to the 
 case where the person to be bound signs- as, what he cannot be, 
 a witness, and must therefore be considered to sign in his proper 
 character. By the rule as expressed by Lord Eldon, the person 
 signing is assumed to be really the contracting party. In the 
 case put by way of objection, there wbuld be no real contract 
 by the party to sign. 
 
 5. It is not necessary to put down the name of the principal ; 
 if the name of the actual bidder, although an agent, be put 
 down, that is sufficient.(;7) 
 
 *6. And it is sufficient, it seems, if the initials of the name 
 are set down,(^) but there must be a signature of the name in 
 some way.(>-) 
 
 7. It seems that the signature of the purchaser by himself or 
 his agent, on the back of the particulars and conditions of sale, 
 with the sum opposite to it, is a sufficient compliance with the 
 
 (n) 2 Ad. & EI. 508, 509 ; 4 Nev. & v. Johns, 9 Allen, 419 ; Hunter v. Gid- 
 
 Mann. 49. dings, 97 Mass. 41 ; Lord Romilly, M. R. 
 
 (o) 2 Ad. & El. 508. in Hood v. Lord Barrington, L. K. 6 Eq. 
 
 {p) White V. Proctor, 4 Taunt. 209 ; 218 ; Williams v. Bacon, 2 Gray, 393.] 
 
 Kenworthy v. Schofield, 2 B. & C. 945. (q) Phillimore v. Barry, 1 Ca. 513 ; 
 
 [It is no objection to the sufficiency of Jacob v. Kirk, 2 Moo. & Rob. 221 ; Sweet 
 
 a memorandum, that the seller therein v. Lee, 3 Man. & Gra. 452. [The mark 
 
 named is but an agent of the real owner ; of one unable to write is sufficient. 2 
 
 and on proof of the agency the latter may Kent (11th ed.), 511.] 
 
 sue or be sued on the contract made by (r) Selby v. Selby, Rolls, 1817, MS.; 
 
 his agent on his behalf. Gray J. in Hubert v. Turner, 4 Sco. N. R. 486. 
 Gowen v. Klous, 101 Mass. 454; Lerned 
 
 [144] 
 
CH. IV. § IV.] WHAT IS A SUFFICIENT SIGNATURE. 215 
 
 directions of the act ; (s) where the paper on which the indorse- 
 ment is made contains the name of the seller. 
 
 8. And, as we have seen, an agreement not signed, may be 
 supported by a signature to a writing referring to the agreement. 
 But the mere altering the draft of the conveyance will not take 
 a case out of the statute,(<) nor will the written approbation of 
 it by the agents be sufficient, although it recite the contract in 
 the usual way ; (m) neither will the writing over of the whole 
 draft by the defendant with hig own hand be sufficient, as there 
 must be a signature.(a;) To this rule we may, perhaps, refer the 
 case of Stokes v. Moove,{y) which Mr. Baron Eyre appears to 
 have put on its true ground. 
 
 9. A draft of an agreement not signed, may be given in evi- 
 dence without a stamp, although a memorandum is written 
 upon it, " We approve of the within draft," and is signed by 
 both parties ; for those words do not import an agreement, 
 but merely an evidence of something they intended to agree 
 to.(z) Still where the parties themselves, not being professional 
 persons, sign such a memorandum, it is a question to be decided 
 in each case, whether they signed in that form as simply approv- 
 ing of the draft as such, or whether they intended to give valid- 
 ity to it as an agreement. 
 
 (s) Sup.; Hodgson u.Le Bret, Ca. 233 ; {x) Ithel v. Potter, 1 P. Wms. 771. 
 Phillimore v. Barry, lb. 513; Goom v. {y) Stokes u. Moore, 1 Cox, 219 ; u. to 
 
 Affalo, 6 B. & C. 117 ; cases on the 17th 1 P. Wms. 771 ; 1 Smith, 244 ; Hubert v. 
 
 sect. ; Emmerson v. Heelis, 2 Taunt. 38. Treheme, 3 Man. & Gra. 743 ; 4 Sco. N. 
 
 (t) Hawkins v. Holmes, 1 P. Wms. 770, R. 486 ; Lobb v. Stanley, 5 Q. B. 574 ; 
 
 which overruled Lowther v. Carril, 1 Ver. Emmerson v. Heelis, 2 Taunt. 38 ; and ob- 
 
 221 ; Shippey v. Den-ison, 5 Esp. 190. serve how the purchaser's name was 
 
 («) Ld. Townsend v. Bishop of Nor- signed ; Morison v. Turnour, 1 8 Ves. 
 
 vrich, 1 Eop. H. & W. by Jac. 308, n. ; 187 ; Ogilvie v. Eoljambe, 3 Mer. 53. 
 Doe V. Pedgriph, 4 C. & P. 312 ; Thorn- (z) Doe v. Pedgriph, 4 C. & P. 312. 
 bury V. Bevil, 1 Yo. & Col. C, C. 554. 
 
216 
 
 AGENT, HOW APPOINTED. 
 
 [CH. IV. § V. 
 
 * SECTION V. 
 
 OF SIGNATURE BY AGENTS. 
 
 Agent appointed by parol good : contract 
 by corporation must be under their 
 seal. 
 
 Clerk of agent requires distinct authority. 
 
 Eevocation of authority. 
 
 Auctioneer and clerk agents for both 
 parties. 
 
 6. Signature for one party sufficient, whether 
 
 lands or goods. 
 
 7. Although an agent bid. 
 
 8. Where an auctioneer can sign for a party 
 
 and sue him. 
 
 9. Ratification of act of assumed agent. 
 
 1. In the first and third sections of the statute of frauds, which 
 relate to leases, &c., the writing is required to be signed by the 
 parties making it, or their agent authorized by writing. This 
 latter requisite is omitted in the fourth and seventeenth sections 
 of the statute. The legislature seems to have taken this distinc- 
 tion, that where an interest is intended to be actually passed, the 
 agent must be authorized by writing ; but that where a mere 
 agreement is entered into, the agent need not be constituted by 
 writing ; and therefore an agent may be authorized by parol to 
 treat for, or buy, or sell an estate, although the contract itself 
 must be in writing.(a) But a corporation cannot enter into a 
 contract for an estate to be paid for out of its corporate funds 
 except under seal.(6) It is, however, in all cases, highly de- 
 
 (a) Waller v. Hendon, 5 Vin. Ab. 524, 
 pi. 45 ; Wedderbume v. Carr, 3 Wooddes, 
 423; Rucker v. Cammeyer, 1 Esp. 175; 
 Coles V. Trecothick, 9 Ves. 234 ; Barry v. 
 Ld. Barrymore, 1 Seh. & Lef. 28 ; Clinan 
 V. Cooke, lb. 22 ; Emmerson v. Heelis, 2 
 Taunt 38 ; see 2 Nev. & Per. 530 ; Gra- 
 ham 0. Musson, 5 Bing. N. C. 603 ; Cal- 
 laghan v. Pepper, 2 Ir. Eq. R. 399 ; Wire 
 V. Pemberton, 4 De G. & S'm. 388. [Where 
 the law requires an instrument, in order to 
 bind a party, to .be in writing, he may, 
 without writing, authorize an agent to 
 sign it in his behalf, unless the statute 
 positively requires that the authority also 
 shall be in writing. Story Agency, § 50 ; 
 Blood V. Hardy, 15 Maine, 61 ; Champ- 
 lin w. Parish, 11 Paige, 405; M'Comb v. 
 Wright, 4 John. Ch. 659 ; Mortimer v. 
 Cornwell, 1 Hoff. Ch. 351 ; Botts v. Co- 
 
 [145] 
 
 zine, 1 HofF. Ch. 80 ; Lawrence v. Taylor, 
 
 5 Hill, 107, 112 ; Shaw u. Nudd, 8 Pick. 
 9 ; Ewing v. Ters, 1 Binney, 450 ; Tal- 
 bot 17. Bowen, 1 Marsh. (Ky.) 436; 
 Blacknall v. Parish, 6 Jones Eq. 70 ; 
 Heard v. Pilley, L. E. 4 Ch. Ap. 548. 
 The authority of an auctioneer in the sale 
 of real estate need not be in writing. 
 Alna V. Plummer 4 Greenl. 258 ; Episco- 
 pal Church of Macon v.- Wiley, 2 Hill Ch. 
 428 ; Anderson v. Chick, 1 Bailey Eq. 118 ; 
 Doty V. Wilder, 15 111. 407 ; Johnson v. 
 Dodge, 17 111. 433; Yourt w. Hopkins, 
 24 111.326; 2 Kent (11th ed.), 540.] 
 
 (b) Mayor of Ludlow v. Charlton, .6 M. 
 
 6 W. 815 ; see 6 Ad. & El. 829, 846. As; 
 to the power of municipal corporations to 
 sell, see Evan \u. Corporation of Avon, 29 
 Beav. 144. 
 
CH. IV. § v.] SIGNATURE BY AGENTS. 217 
 
 sirable that the agent should have a written authority. Where 
 he has merely a parol authority, it must frequently be difficult to 
 prove the existence and extent of it ; (c) although it may be ob- 
 served that his testimony will be received with great caution 
 against his signature as agent. If, however, at the time of sign- 
 ing, he make a declaration that he has no authority, his princi- 
 pal will not be bound.(d) But of course, although he purchase 
 in his own name, yet the fact of the agency so as to charge the 
 principal may be made out by parol evidence.(e) 
 
 2. In a case in Ireland,(/) where upon a parol offer, the owner 
 wrote to a third person, stating, that if he thought the proposal 
 the value of the place, he (the owner) was satisfied, and the pur- 
 chaser ' deposited the purchase money with the third person, who 
 made a memorandum of it, and stated that he considered it a 
 great price, and signed it ; the agreement was enforced upon the 
 ground that the third person was acting in the place of the seller, 
 and every dealing with the one was a dealing with the other. 
 
 3. Although an agent is authorized to sell at a particular 
 price, yet it seems that his clerk cannot contract without a spe- 
 cial authority or agreement for that purpose ;(§•) which, however, 
 need not be in writing. 
 
 4. The principal may revoke the authority of the agent at any 
 time before an agreement is executed according to the statute, 
 although the agent has previously agreed verbally to sell the 
 property; [h) and an intended purchaser may in like manner re- 
 voke his authority to his agent to purchase.(i) And, on the 
 other hand, he may adopt the act of a man acting as his agent.(^) 
 In a case where an agent agreed to buy some stables not within 
 his authority, his principal, upon a dispute between the agent 
 
 (c) Mortlock V. BuUer, 10 Ves. 292; (/) Meld v. Boland, I Dru. & Wal. 37. 
 Daniel v. Adams, Amb. 495 ; Charlewood {g) Coles v, Trecothick, 9 Ves. 234 ; 
 V. The Duke of Bedford, 1 Atk. 497 ; 5 Blore v. Sutton, 3 Mer. 237 ; 4 B. & Ad. 
 Vin. Ab. 522, pi. 35; Wyatt u. Allen, 446. 
 
 App. No. 9, to Purch. {h) Farmer v. Kobinson, 2 Ca. 339, n. 
 
 (d) Howard v. Braithwaite, I Ves. & (i) As to sales by auction, Blagden v. 
 Bea. 202; see now, as to evidence, 14 & Bradbear, 12 Ves. 467 ; Mason v. Armi- 
 15 Vict. c. 99, 16 & 17 Vict. c. 83 ; Ridg- tage, 13 Ves. 25 ; [see Slory Agency, §§ 
 way V. Wharton, 3 De G., M. & G. 677 ; 465-467.] 
 
 aflfd D. P. (k) Inf. ; De Beil v. Thomson, 3 Beav. 
 
 (e) Wilson v. Hart, 1 Mo. 45 ; M^rston 469. 
 V. Roe, 8 Ad. & El. 14. 
 
 [146] 
 
218 AUCTIONEER AGENT OF BOTH PARTIES. [CH. IV. § V. 
 
 and the seller as to what was sold, wrote to the latter to say that 
 if the stables were within the agreement he should of course 
 take them — whatever the agreement was he should carry it out; 
 and the jury, finding that the agreement did include the stables, 
 it was held that the purchaser's letter amounted to. a ratification 
 of the contract within the statute of frauds.(Z) But this was re- 
 versed upon another point, namely, that either there never was 
 any complete agreement as to the duration of the tenancy for 
 which the purchaser was to take the stables ; or, if there was, 
 the writing did not contain it.(m) 
 
 5. The auctioneer and his clerk may be considered as the con- 
 stituted agents of the vendor; he appoints the former to an- 
 nounce the biddings, and the latter to take down the names of 
 the purchasers and the prices of the lots. 
 
 6. The statute requires every agreement as to lands, or some 
 memorandum or note thereof, to be in writing, and signed by the 
 party to be charged, or some other person thereunto (that is, to 
 the signing thereof) (w) by him authorized. A.aA that as to 
 goods, some note or memorandum in writing of the bargain 
 shall be made and signed by the parties to be charged by such 
 contracts, or their agents, thereunto authorized. And yet it has 
 been decided, that the signature of the party to be charged by 
 himself or agent is sufficient, even in a contract for goods,(o) 
 although the other party has not signed, and 'consequently is 
 not bound ; so that there appears to be no difference between the 
 two clauses of the statute, in regard to the appointment and 
 power of an agent. And it may now after much controversy be 
 laid down generally, that an auctioneer is the agent of both 
 parties upon a sale of lands or goods, so as to be enabled to bind 
 them both under the statute.(iB) And an auctioneer's clerk who 
 
 . (I) Fitzmaurice o. Bayley, 6 E. & B. v. Cammeyer, 1 Esp. 105 ; Hiude v. White- 
 
 868 (Crompton J. dissenting). house, 7 East, 558 ; Rondeau v, Wyatt, 2 
 
 (m) Bayley o. Fitzmaurice, 8 E. & B. H. Black. 67 ; Phillimore v. Barry, 1 Cam. 
 
 664. 513; Stansfield v. Johnson, 1 Esp. 101; 
 
 (n) 1 Ves. & Bea. 207. Walker v. Constable, 2 Esp. 659 ; 1 Bos. & 
 
 (o) Allen w. Bennet, 3 Taunt. 169; see Pul. 306; Buckmaster v. Harrop, 7 Ves. 
 
 Sari V. Bourdillon, 1 C. B. N. S. 196. 341 ; 13 Ves. 456 ; Coles v. Treoothick, 9 
 
 There appears to be an error in the report Ves. 234; 13 Ves. 473; Emmerson v. 
 
 of what fell from Willes J. Heelis, 2 Taunt. 38 ; 1 Cas. & Op. 142, 
 
 (p) Simon u. Motivos, 2 Bur. 1921 ; 143 ; White v. Proctor, 4 Taunt. 209 
 
 Bui. Ni. Pri. 280; 1 Black, 599 ; Rucker Kemys v. Proctor, 3 Ves. & Bea. 57 ; 1 J. 
 
 [147] 
 
CH. IV. § v.] 
 
 SALES BY AUCTION. 
 
 219 
 
 takes down the biddings openly is considered the agent of both 
 the seller and purchaser.(9) But this principle of implied agency 
 in an auctioneer is not extended to other cases.(r) 
 
 7. It was always clear, that an auctioneer, appointed by a ven- 
 dor, was a good agent for him within the statute.(s) And al- 
 though a purchaser bid by an agent, yet the auctioneer is still 
 duly authorized to sign the agreement.(i) 
 
 8. The agent must be a third person^ neither of the contract- 
 ing parties can be the agent of the other ; (m) and therefore, 
 although a purchaser is bound by the signature of the auctioneer, 
 yet the auctioneer himself cannot, although the seller could, 
 maintain an action upon such a' contract, because the agent 
 whose signature is to bind the defendant must not be the other 
 
 & W. 350; Kenworthy v. Schofield, 2 B. 
 & C. 945; [Smith v. Arnold, 5 Mason, 
 414; Davis v. Robertson, 1 Eep. Const. 
 Ct. 71; Adams v. M'Millan, 7 Port. 73; 
 Morton v. Dean, 13 Met. 388; Gill v. 
 Bicknell, 2 Cush. 358; Chitty Contr. 
 (10th Am. ed.) 323, & n. (y), and cases 
 cited ; Cleaves v. Foss, 4 Greenl. 1 ; Alna 
 u. Plummer, 4 Greenl. 258 ; Hart u. 
 Woods, 7 Blackf. 568 ; Jenkins u. Hogg, 
 2 Const. Ct. Eep. 820 ; Gordon v. Sims, 
 2 McCord Ch. 164 ; Pugh v. Chesseldine, 
 11 Ohio, 109; Baptist Church v. Bigelow, 
 16 Wend. 28 ; Burke v. Haley, 2 Gilm. 
 614; M'Comb v. 'fright, 4 John. Ch. 
 659 ; Episcopal Church in Macon u. Wiley, 
 2 Hill Ch. 428; Anderson «. Chick, 1 
 Bailey Eq. 118; Brent v. Green, 6 Leigh, 
 16. The auctioneer is the agent of the 
 vendor by virtue of his employment to 
 make the sale, and he is made the agent 
 of the vendee by the act of the latter in 
 giving him his bid and receiving from him 
 without objection the announcement that 
 the property sold is knocked off to him as 
 purchaser ; and his memorandum of a con- 
 tract or agreement is .binding on both. Bent 
 V. Cobb, 9 Gray, 397 ; Story Agency (6th 
 ed.), §§ 27, 107 ; Gill v. Bicknell, 2 Cush. 
 359; Doty v. Wilder, 15 111. 407.] 
 
 (?) Bartlett v. Purnell, 4 Ad. & El. 792 ; 
 Henderson v. Bamewall, 1 Yo. & Jer. 
 387 ; [Smith v. Jones, 7 Leigh, 165 ; Gill 
 
 V. Bicknell, 2 Cush. 358; see Fiske v. 
 McGregory, 34 N. H.-414, next preceding 
 note; Cathcart v. Keirnaghan, 5 Strobh. 
 129.] 
 
 (r) Ld. Glengal v. Barnard, 1 Ke. 769. 
 [An officer's return of the sale of an equity 
 of redemption on execution is a suiiicient 
 memorandum thereof in writing to bind 
 the purchaser under the statute of frauds. 
 Sanborn v. Chamberlin, 101 Mass. 409; 
 see Eemington v. Linthicum, 14 Peters, 
 92 ; Hanson v. Barnes, 3 Gill & J. 359 ; 
 Barney v. Patterson, 6 Harr. & J/ 204 ; 
 Hand v. Grant, 5 Sm. & M. 508 ; Bobin- 
 son V. Garth, 6 Ala. 204.] 
 
 (s) Supra. [An auctioneer is primarily 
 deemed to be the agent of the seller. Story 
 Agency (6th ed.), § 27.] 
 
 (t) Emmerson v. Heelis, 2 Taunt. 38; 
 White V. Proctor, 4 Taunt. 209. 
 
 (m) Wright V. Dannah, 2 Ca. 283 (17th 
 s.). [A guardian, who acts as auctioneer in 
 selling land of his ward under license of 
 court, is not authorized' as such to sign for 
 the purchaser a memorandum in writing 
 to take the sale out of the statute of frauds. 
 The principle extends to others acting in 
 a fiduciary capacity. Bent v. Cobb, 9 
 Gray, 397 ; Smith v. Arnold, 5 Mason, 
 414. As to an auction sale by an auction- 
 eer to an association, of which he is a 
 member, see Kearney v. Taylor, 15 How. 
 (U. S.) 494.] 
 
220 
 
 PAROL AGREEMENTS NOT WITHIN STATUTE. [CH. IV. § VI. 
 
 contracting party upon the record.(a;) This, however, has since 
 been doubted ; (y) and it has been held that the auctioneer's clerk 
 can bind the purchaser by an entry made in his presence ; and as 
 the clerk had made the entry, the auctioneer was allowed to 
 maintain the action. The opinion of the court was in favor of 
 the auctioneer's power to maintain an action, although he signed 
 as agent of the other party. It was certainly irregular that the 
 contracting parties should act as each other's agents, but it was 
 very different where the contract is signed by an individual who 
 was not either of the contractors. 
 
 9. Finally, a contract by one as agent for another is valid 
 under the statute, although the alleged agent had no authority 
 at the time, provided that the alleged principal afterwards ratifies 
 the contract.(s) 
 
 » SECTION VI. 
 
 OF PAROL AGREEMENTS NOT WITHIN THE STATUTE. 
 
 1. Sales by auction within the statute. 
 
 2. Sales by the court not. 
 ii Collateral agreement not. 
 
 5. Agreements confessed not. — Unless stat- 
 
 ute insisted upon. 
 
 6. Conviction of perjury. 
 
 1. There are cases in which the performance of an agreement 
 will be compelled, although the terms of it are not reduced to 
 writing : for where there has appeared to be no danger of fraud 
 or perjury, the courts have endeavored to take the case out of the 
 statute.(a) But sales by auction of estates,(6) and even of goods, 
 
 {x) Farebrother i). Simmons, 5 B. & Al. field u. Johnson, 1 Esp. 101; Walker v. 
 
 333 (17th s.) ; [Story Agency, § 9.] Constable, 2 Esp. 659 ; 1 Bos. &Pul. 306 j 
 
 (y) Bird v. Boulter, 4 B. & Ad. 447 Buckmaster v. Harrop, 7 Ves. 341, alFd 
 
 {17th s.) ; Graham v. Musson, 5 Bing. N. on appeal, Dee. 1806 ; Blagden v. Brad- 
 
 C. 603 ; [Doty v. WUder, 15 111. 407.] bear, 12 Ves. 466 ; Coles v. Trecothick, 9 
 
 (z) Maclean v. Dunn, 4 Bing. 722 ; Gos- Ves. 249 ; Hinde v. Whitehouse, 7 East, 
 
 bell y. Archer, 2 Ad. & El. 500 ; Bigg v. 558 ; Mason v. Armitage, 13 Ves. 25 ; 
 
 Strong, 3 Sm. & Gif. 592. Higginson v. Clowes, 15 Ves. 516 ; Sy- 
 
 (a) 1 Ves. 221. monds v. Ball, 8 T. K. 151, turned on 
 
 (6) Simon «. Motivos, 3 Bur. 1921; the particular provisions of another act of 
 
 Bui. Ni. Pri. 286; 1 Black. 599; Stans- parliament; [ante, 42, note (y').] 
 
 [148] 
 
CH. IV. § VI.] PAROL AGEEEMENTS NOT WITHIN STATUTE. 221 
 
 are within the statute ; (c) although this was once thought to be 
 otherwise. So a sale in bankruptcy is within the statute.(d) 
 
 2. A sale before any person authorized, under the decree of a 
 court of equity, will he carried into execution, although the pur- 
 chaser did not subscribe any agreement. The judgment of the 
 court in confirming the purchase, takes it out of the statute.(e) 
 
 3. So if, under a reference to a chief clerk or other officer, an 
 agreement be made to lay out trust money in the purchase of 
 particular lands, and the chief clerk make his report accordingly, 
 and the report be confirmed without any opposition by the owner 
 of the estate, the purchase will be carried into a specific execu- 
 tion, although no agreement was signed by the vendor. The 
 judicial sale takes it out of the statute.(/) 
 
 4. But an agreement to pay a further rent in consideration of 
 additions by the landlord, is not a purchase by the latter of a rent 
 issuing out of the property, nor is the sum to be paid properly 
 rent, and the agreement is valid although by parol. (g-) An 
 agreement for an abatement of rent must be in writing accord- 
 ing to the statute.(A) A statement upon a sale that the rent has 
 been abated will not prevent the purchaser from recovering the 
 rent reserved by the lease, (f) 
 
 (c) Kenworthy v. Schofield, 2 B. & C. which he has no personal interest, and 
 
 945. . which would by statute be valid even if 
 
 {d} Ex parte Cutts, 3 Deac. 267. made after the return day, is stich a mem- 
 
 (e) Att. Gen. u. Day, 1 Ves. 218; 12 orandum. Sanborn v. Chamberlin, 101 
 
 Ves. 472. [See Sanborn u. Ghamberlin, Mass. 413, 416 ; Remington v. Linthicum, 
 
 101 Mass. 413. Although lands are sold 14 Peters, 92 ; Hand v. Grant, 5 Sm. & 
 
 by authority of law, the statute requires M. 508 ; see Christie v. Simpson, 1 Rich, 
 
 that the contract of sale, or some mem- 407 ; Secrist u. Twitty, 1 McMullan, 255. 
 
 orandum or note thereof, should be in The sheriff is the agent of the purchaser, 
 
 writing, and signed by the party to be and may sign his name to a memorandum 
 
 charged, or by some person lawfully au- of the sale, so as to satisfy the statute, 
 
 thorized to sign it in his behalf. Bent v. Robinson v. Garth, 6 Ala. 204 ; see Simp- 
 
 Cobb, 9 Gray, 397 ; Simonds v. Catlin, 2 son v. Pettus, 7 Ala. 453 ; Wiley v. Rob- 
 
 Caines, 61 ; Jackson v. Catlin, 2 John, ert, 31 Mis. 212.] 
 
 248; Robinson v. Garth, 6 Ala. 204; (/) Att. Gen. B.Bay, wSi sm/).; [Fulton 
 
 Evans v. Ashley, 8 Missou. 177. But the v. Moore, 25 Penn. St. 468; see Smith v. 
 
 memorandum necessary to take the case Arnold, 5 Mason, 420 ; per Kent J. in 
 
 out of the statute may be signed by an Simonds v. Catlin, 2 Caines, 64.] 
 
 authorized agent, after as well as at the (g) Hoby v. Roebuck, 7 Taunt. 157; 
 
 time of the sale. Lerned v. Wanne- Donellan & Read, 3 B. & Ad. 899. 
 
 macher, 9 Allen, 416. The officer's re- (A) 1 Sch. & Lef. 306. 
 
 turn upon an execution, in the perform- (i) Booth v. Daly, 6 Ir. C. L. Rep. 
 
 ance of his official duty, in a matter in 460. 
 
222 STATUTE INSISTED, UPON : AGREEMENT ADMITTED. [CH. IV. § VI. 
 
 *5. It has been repeatedly determined in equity,(j) and is per- 
 fectly settled, that if a bill be brought for the execution of an 
 agreement not in writing, nor so stated in the bill, yet if the 
 defendant put in his answer, and confess the agreement, that 
 takes the case entirely out of the mischief intended to be> pre- 
 vented by the statute ; and there being no danger of perjury, the 
 court would decree it ; and if the defendant should die, upon a 
 bill of revivor against his heir, the same decree would be made 
 as if the ancestor were living, the principle going throughout, 
 and equally binding the representatives.(A;) But after a great 
 conflict of opinion, it is decided that the statute may be used as 
 a bar to the relief, although the agreement be admitted.(^)(l) 
 It is immaterial what admissions are made by a defendant in- 
 sisting upon the benefit of the statute, for he throws it upon the 
 plaintiff to show a complete written agreement; and it can no 
 
 {j) Croyston v. Banes, Pre. C. 208 ; 1 frauds. Bohannon v. Pace, 6 Dana, 194 ; 
 
 Ves. 221, 441; Amb. 586; Mose. 370; see Cahill w. Bigelow, 18 Pick. 369.] 
 Symondson v. Tweed, Pre. C. 437; Gilb. (?) Whitbread v. Brockhnrst, 1 Bro. C. 
 
 Eq. R. 35 ; Wanby v. Sawbridge, 1 Bro. C. 41 6 ; Stewart v. Careless, 2 Bro. C. C. 
 
 C. C. 414. 564, 565 ; Walters v. Morgan, 2 Cox, 369 ; 
 
 (k) Per Ld. Hardwicke, 1 Ves. 221 ; Moore v. Edwards, 4 Ves. 23 ; Cooth v. 
 
 sec Eyre v. Popham, LoiFt, 808, 809 ; Eyre Jackson, 6 Ves. 12 ; How v. Teed, 15 Ves. 
 
 V. Iveson, 2 Bro. C. C. 563; Child v. Go- 375 ; see Rondeau u. Wyatt, 2 H. Black, 
 
 dolphin, 1 Dick. 39; 2 Bro. C. C. 566; 63; 1 Rose, 300; Blagden u. Bradbear, 12 
 
 Hartley «„ Wilkinson, Ir. T. K. 357 ; Cot- Ves. 464 ; 2 Bal. & Beat. 349 ; [Brandei 
 
 tington w. Fletcher, 2 Atk. 155 ; 3 Atk. 3 ; v. Neustadtl, 13 Wis. 142; 1 Dan. Oh. 
 
 but see 4 Ves. 24; Whitchurch c. Bevis, Pr. {4th Am. ed.) 656, 657, note ; Woods 
 
 2 Bro. C. C. 559 ; 2 Dick. 664. [No third v. Dike, 1 1 Ohio, 455 ; Flagg v. Mann, 2 
 
 person can take advantage of the want of Sumner, 528, 529 ; Newton </. Swasey, 8 
 
 a writing, where the party, of whom per- N. H. 9 ; Allen u. Chambers, 4 Ircd. Eq. 
 
 formance is claimed, admits the agree- 125; Luckett U.Williamson, 37 Missou. 
 
 ment, though it might other^vise be 388; Winn k. Albert, 2 Md. Ch. 169.] 
 avoided, as being within the statute of 
 
 ( 1 ) In Child V. Godolphin, 1 Dick. 39, Lord Macclesfield decided that the plea of 
 the statute would not prevail where the agreement was confessed ; and Lord Hardwicke 
 appears to have entertained the same opinion; Cottington v. Fletcher, 2 Atk. 155; 3 
 Atk. 3. Lord Bathurst, who was not aware of Child v. Godolphin, decided in Eyre 
 V. Popham, Lofft, 808, 809, that an agreement not in part performed could riot be en- 
 forced, although confessed by the answer, and the statute was not insisted upon. Lord 
 Thurlow left the point undecided in Whitchurch v. Bevis, 2 Bro. C. C. 559. Mr. 
 Baron Eyre decided the law as stated in the text. Stewart v. Careless, 2 Bro. C. C. 
 564. This view was adopted by Lord Rosslyn and Lord Eldon in the cases quoted in 
 the notes, and was finally so decided by Sir William Grant. Blagden v. Bradbear, 12 
 Ves. 464. 
 
 [149] 
 
CH. IV. § VI.J AGREEMENT ADMITTED : SUBMISSION TO PERFORM. 223 
 
 more be thrown upon the defendant to supply defects in the 
 agreement, than to supply the want of an agreement. Where, 
 however, a defendant has, by answer, admitted the agreement, 
 and submitted to perform it, he cannot, by an answer to an 
 amended bill, plead the statute of frauds.(OT) Nor can he set 
 up the statute at the hearing if he has not claimed the benefit 
 of it by his answer. (w) If the defendant admits the agreement, 
 but intends to rely on the statute, he must say so ; but if he 
 denies, or does not admit the agreement, the burden of the 
 proof is altogether on the plaintiff, who must prove a valid 
 agreement capable of being enrorced.(o) The statute may be 
 set up by demurrer.(/>) 
 
 *6. If the defendant deny the agreement, he may be tried for 
 perjury ; but a conviction will not enable equity to decree a per- 
 formance of the agreement ; (q) and therefore, as the plaintiff 
 cannot avail himself in any civil proceedings of the conviction 
 of the defendant, he is a competent witness to prove the per- 
 jury.(/-) But in Rex v. Dunston,(s) where the agreement was 
 
 (m) Spurrier i-. Fitzgerald, 6 Ves. 548 ; 
 Skinner v. M'Doiiall, 2 De G. & Sm. 265 ; 
 [Story Eq. PI. § 763 ; 2 Story Eq. Jur. § 
 755; Cozine n. Graham, 2 Paige, 177; 
 Ontario Bank w. -Root, 3 Paige, 478; 
 Woods V. Dike, 11 Ohio, 455; Vanpell v. 
 Woodward, 2 Sandf. Ch. 143; Houser u. 
 Lament, 55 Penn. St. 311.] 
 
 (n) Baskett v. Cafe, 4 De G. & Sm. 
 388 ; [Ridgway </. Wharton, 3 De G., M. 
 & G. (Am. ed.) 677, and cases in note 
 (2) ; 1 Dan. Ch. Pr. (4th Am. ed.) 656, 
 and note (10) ; Woods v. Dike, 11 Ohio, 
 455 ; 1 Story Eq. Jur. §§ 755-758 ; Elagg 
 V. Mann, 2 Sumner, 528, 529 ; Newton v. 
 Swazey, 8 N. H. 13; Artz u. Grove, 21 
 Md. 456; Ashmore v. Eyans, 3 Stockt. 
 (N. J.) 151 ; Van Duyne u. Vreeland, 1 
 Beasley (N. J.), 142 ; S. C. 3 Stockt. (N. 
 J.) 370; Ontario Bank v. Root, 3 Paige, 
 478 ; Hollingshead v. McKenzie, 8 Geo. 
 457 ; Jackson v. Oglander, 2 H. & M. 
 465 ; Thompson v. Tod, 1 Peters C. C. 
 388 ; Stearns v. Hubbard, 8 Greenl. 320 ; 
 Thornton v. Henry, 2 Scam. 219. Where 
 no answer was required, the defendant has 
 
 been allowed to plead the statute orally at 
 the hearing. 1 Dan. Ch. Pr. (4th Am. 
 ed.) 656, 657 ; Lincoln v. Wright, 4 De 
 G. & J. 16 ; Snead v. Green, 8 Jur. N. S. 
 4; S. C. nom. Green ». Snead, 30 Beav. 
 231.] 
 
 (o) Ridgway v. Wharton, 3 De G., M. 
 & G. 677, perL. C. ; see 6 H. L. Cas. 238 ; 
 [Jervis o. Smith, 1 Hoff. Ch. .470; Rey- 
 nolds V. Dunkirk, &c. 17 Barb. 613 ; Hall 
 V. Hall, 1 Gill, 383 ; Winn v. Albert, 2 
 Md. Ch. 169.] 
 
 ip) Barkworth v. Young, 4 Drew. 1 ; 
 [Walter v. Locke, 5 Cush. 90, 93 ; Cozine 
 V. Gardner, 2 Paige, 177; Rummens v. 
 Robins, 11 Jur. N. S. 631 ; 3 De G., J. & 
 S. 88 ; Wood V. Midgley, 5 De G., M. & 
 G. (Amed.) 40, n. (1); Chambers u. Le- 
 compte, 9 Mis. 566.] 
 
 (?) Bartlett v. Pickersgill, 4 Bur. 2255 ; 
 4 East, 577, n. (6) ; 1 Cox, 15 ; Rastel u. 
 Hutchinson, 1 Dick. 44 ; Fell v. Chamber- 
 lain, 2 Dick. 484 ; Burdon v. Browning, 2 
 Taunt. 520. 
 
 (r) The King v. Boston, 4 East, 572. 
 
 (s) Ry. & Moo. 109. 
 
 [150] 
 
224 
 
 OF FEAUD AND FART PEEFOKMANCE. [CH. IV, § Vn. 
 
 by parol, and the defendant pleaded the statute, and by answer 
 denied the agreement itself, upon an indictment for perjury, 
 Abbott C. J. said that it did not appear from the note of Bart- 
 lett V. Pickersgill, whether the statute of frauds was there pleaded 
 and relied on. But in this case, as the defendant had pleaded 
 the statute, he was of opinion that his denial of an agreement, 
 which by the statute was not binding upon him, was immaterial. 
 It is necessary that the matter sworn to, and said to be false, 
 should be material and relevant to the matter in issue. 
 
 SECTION VII. 
 
 OF FRAUD AND PART PERFORMANCE. 
 
 1. Agreement in writing prevented by fraud. 
 
 2. Part performance, parol agreement en- 
 
 forced. 
 
 3. What acts are apart performance. — De- 
 
 livery -of abstracts or the like, not. 
 
 4. Delivery of possession sufficient. 
 
 5. Unless referable to another title, or wrong- 
 
 fully obtained. — Payment of rent, 
 where sufficient. 
 
 6. Tenant in possession purchases of land- 
 
 lord by parol; continuance in posses- 
 sion not a part performance. 
 
 7. Payment of purchase money insufficient, 
 
 semhle. 
 
 8. Acts done to a man's own prejudice. 
 
 9. Distinct lots. 
 
 10. Where terms of agreement are uncer- 
 
 tain. 
 
 11. Representatives bound where part per- 
 
 formance. 
 
 12. Whether remainder-man bound. 
 
 13. Issue directed where dispute, and both 
 
 parties dead. 
 
 1. There are other cases taken out of the statute, not so much 
 on the principle of no danger of perjury, as that the statute was 
 not intended to create or protect fraud. Lord Thurlow laid it 
 down that, If you interpose the medium of frmd, by which the 
 agreement is * prevented from being put into writing, the case 
 ivould be taken out of the statute.(a) 
 
 (a) Whitchurch v. Bevis, 2 Bro. O. C. 
 565, overruling Ld. North's opinion in 
 HoUis V. Whiting, or Edwards, 1 Ver. 151, 
 159; Leake v. Morrice, 2 Ch. C. 135; 
 Eidgway v. Wharton, 3 De G., M. & G., 
 677; aff'd D. P. 6 H. L. Cas. 238; 
 Wood V. Midgley, 2 Sm. & Gif. 115; 5 De 
 G., M. & G. 41 ; [(Am. ed.), note (2) and 
 cases cited ; Jenkins v. Eldredge, 3 Story, 
 181, 290-293; 1 Story Eq. Jur. § 768; 
 
 [151] 
 
 Taylor v. Luther, 2 Sumner, 228, 232 ; 2 
 Dart V. & P. (4th Eng. ed.) 936 ; 1 Dan. 
 Ch. Pr. (4th Am. ed.) 657; Phyfe v. 
 "Warden, 2 Edw. Ch. 47; Kennedy v. 
 Kennedy, 2 Ala. 571 ; Blanchard w. Moore, 
 4 J. J. Marsh. 471 ; Wesley v. Thomas, 6 
 Harr. & J. 24; Watkins v. Stockett, 6 
 Harr. & J. 435 ; Chetwood v. Brittian, 1 
 Green Ch. 438; Glass v. Hulbert, 102 
 Mass. 38 ; Rasdall a. Easdall, 9 Wis. 379. 
 
CH. IV. § VII.] 
 
 OF PART PERFORMANCE. 
 
 225 
 
 2. So where agreements have been carried partly into execu- 
 tion, the court vsrill decree the performance of them, in order that 
 one side may not take advantage of the statute, to be guilty of 
 fraud. (6) 
 
 The law is otherwise in Mississippi. Box 
 V. Stanford, 13 Sm. & M. 93. And ii^ 
 Glass V. Hulbert, 102 Mass. 38, Wells J. 
 said : " In our opinion this doctrine would 
 practically annul the statute."] 
 
 (6) 1 Ves. 221 ; Taylor v. Beech, 1 Ves. 
 297 ; Webster v. Webster, 29 L. T. 351 ; a 
 case between baron and feme, which con- 
 sider; [4 Kent (nth ed.), 451 ; Phillips 
 V. Thompson, 1 John. Ch. 131 ; Eaton 
 V. Whitaker, 18 Conn. 222 ; Rhodes v. 
 Rhodes, 3 Sandf. Ch. 279 ; Maryland 
 Savings Bank v. Schroeder, 8 Gill & J. 
 94 ; Tiltonu. Tilton, 9 N. H. 385 ; Jenkins 
 V. Eldredge, 3 Story, 181 ; Annan v. Mcr- 
 ritt, 13 Conn. 479, 491 ; Newton v. Swasey, 
 8 N. H. 9, 13 ; Ham v. Goodrich, 33 N. H. 
 32, 38 ; Kidder v. Barr,35 N. H. 235,254 ; 
 McNeill V. Jones, 21 Ark. 277. The 
 ground on which courts of equity proceed 
 in decreeing specific performance of parol 
 contracts, within the statute of frauds, 
 partly executed, is, that it would be a fraud 
 upon the party who has acted under the 
 
 & M. 9;3 ; Beaman ». i^uck, 9 Sm. & M. 
 210 ; MacKubin v. Clarkson, 5 Min. 247. 
 In Massachusetts and Maine, the equity 
 powers of the courts have been supposed 
 to be limited' by statute to the specific per- 
 formance of written contracts ; Dwight v. 
 Poraeroy, 17 Mass. 303, 327; Brooks v. - 
 Wheelock, 11 Pick. 439; Jacobs v. Peter- 
 borough & Shirley R. R. Cb. 8 Cush. 223 ; 
 Sanborn v. Sanborn, 7 Gray, 142 ; Buck v. 
 Dowley, 16 Gray, 555, 557, 558 ; Bubier 
 V. Bubier, 24 Maine, 42; and it' has been 
 considered that they had no equity juris- 
 diction to decree specific performance of 
 a parol contract under any circumstances. 
 Stearns v. Hubbard, 8 Greenl. 320 ; Wil- 
 ton V. Harwood, 23 Maine, 131 ; Buck v. 
 Dowley, 16 Gray, 555 ; Park v. Johnson, 
 4 Allen, 259 ; Leach v. Leach, 18 Pick. 68. 
 The question, whether under the recent 
 legislation extending the equity jurisdic- 
 tion in Massachusetts, the court will decree 
 specific performance of contracts on the 
 ground of part performance, has several 
 
 agreement, if the transaction were not times been raised and left undecided. Buck 
 
 u. Dowley, 16 Gray, 555, 558 ; Wheelan w. 
 Sullivan, 102 Mass. 204, 207; Glass v. 
 Hulbert, 102 Mass. 24, 33 ; Metcalf a. Put- 
 nam, 9 Allen, 97. lu North Carolina, part 
 performance, such as payment of the whole 
 of the purchase money, and possession 
 taken by the vendee, will not dispense with 
 a writing, if the statute of frauds be in- 
 sisted on. Allen v. Chambers, 4 Ired. Eq. 
 125. An agreement for the conveyance of 
 land, not reduced to writing, although 
 performed in part by each party, cannot be 
 enforced by an action at law, for the recovery 
 of damages. Norton v. Preston, 15 Maine, 
 14; Adams </. Townsend, 1 Met. 483; 
 Sherburne v. Fuller, 5 Mass. 138 ; Kidder 
 
 completed. Hamilton v. Jones, 3 Gill & 
 J. 127 ; Heth v. Wooldridge, 6 Rand. 605, 
 607 ; Carlisle v. Pleming, 1 Harr. 421, 
 430 ; Townsend v. Houston, 1 Harr. 532, 
 540 ; Anderson v. Chick, 1 Bailey Eq. 118, 
 124 ; M'Kee ». Phillips, 9 Watts, 95, 96 ; 
 Allen's Estate, 1 Watts & S. 383, 385; 
 Parkhurst v. Van Cortlandt, 1 John. Ch. 
 274, 284 ;■ Glass v. Hulburt, 102 Mass. 
 35, 36 ; Nye v. Taggart, 40 Vt. 295. In 
 some of the States the courts have declined 
 to decree specific performance of parol 
 agreements within the statute of frauds, 
 although there has been a part perform- 
 ance. See Patton v. M'Clure, Mart. & 
 Yerg. 333 ; Ridley v. M'Nairy, 2 Humph 
 
 174 ; Ellis V. Ellis, 1 Dev. Eq. 341 ; Albea v. Hunt, 1 Pick. 328 ; Griswold v. Messen- 
 
 V. Grifiin, 2 Dev. & Bat. Eq. 9; Dunn v. ger, 6 Pick. 517; Thompson v. Gould, 20 
 
 Moore, 3 Ired. Eq. 364 ; Allen v. Chambers, Pick. 134, 138 ; Jackson v. Pierce, 2 John. 
 
 4 Ired. Eq. 130; Box v. Stanford, 13 Sm. 223; Frcoport v. Bartol, 3 Greenl. 340; 
 VOL. I. 15 
 
226 
 
 OF PART PEEFOEMANCE. 
 
 [CH. IV. § vn. 
 
 3. An agreement will not be considered as partly executed, 
 unless the acts done are such as could be done with no other de- 
 sign than to perform it.(c) Neither will acts merely introductory, 
 or ancillary to an agreement, be considered as a part perform- 
 ance, although attended with expense. Therefore, delivering an 
 abstract, giving directions for conveyances, going to view the es- 
 tate, fixing upon an appraiser to value stock, making valuations, 
 &cc.,{d) will not take a parol agreement out of the statute.((i^) 
 
 4. But if possession be delivered to the purchaser, the agree- 
 ment will be considered as in part executed ; (e) especially if be 
 expend money in building or improving according to the agree- 
 ment,(/) for the statute should never be so turned, construed, 
 or used, as to protect or be a means of fraud, (g") 
 
 Barickman v. Knykendall, 6 Blackf. 22, 
 24; Eaton v. Whitaker, 18 Conn. 222, 
 231.] 
 
 (c) Gnnter v. Halsey, Amb. 586 ; Lacon 
 V. Merlins, 3 Atk. 1 ; 19 Ves. 479 ; [4 
 Kent (nth ed.), 451 ; Phillips v. Thomp- 
 son, 1 John. Ch. 131, 149 ; Blakeney v. 
 Ferguson, 3 Eng. 272; Carlisle v. Flem- 
 ing, 1 Harr. 421 ; Goodhne u. Barnwell, 
 Kice, 198 ; Anderson v. Chick, 1 Bailey Eq. 
 118; Keats v. Eector, 1 Ark. 391; 2 
 Stoiy Eq. Jur. §§ 761, 762 ; Hatcher v. 
 Hatcher.l McMullan Eq.311,318 ; Smith 
 'v. Smith, 1 Eich. Eq. 130, 133 ; Robert- 
 son V. Robertson, 9 Watts, 32, 42; An- 
 thony V. Leftwick, 3 Eand. 238, 247, 277 ; 
 Jacobs V. Peterborough & Shirley E. R. 
 Co. 8 Cush. 223, 224; Sanborn t. San- 
 bom, 7 Gray, 142, 146 ; Wilson v. Wil- 
 son, 6 Mich. 9 ; Ham v. Goodrich, 33 
 N. H. 38 ; Lester v. ICinne, 37 Conn. 9, 
 
 14-] 
 
 (d) Clerk v. Wright, 1 Atk. 12 ; Wbit- 
 
 bread o. Brockhurst, 1 Bro. C. C. 412; 
 Cole V. White, 1 Bro. C. C. 409 ; Whit- 
 church V. Bevis, 2 Bro. C. C. 559 ; Whaley 
 V. Bagenal, 6 Bro. P. C. 645 ; Cooke v. 
 Tombs, 2 Ans. 420 ; Cooth v. Jackson, 6 
 Ves. 12; Eedding v. Wilkes, 3 Bro. C. C. 
 400. 
 
 {cP) [2 Story Eq. Jur. § 760; Smith v. 
 Smith, 1 Eich. Eq. 130, 132.] 
 
 (e) Butcher v. Stapeley, 1 Ver. 363 ; 
 Pyke o. Williams, 2 Ver. 465; Lockey r. 
 Lockey, Pre. C. 518 ; Earl of Aylesford's 
 case, 2 Stra. 783 ; Binstead v. Coleman, 
 Bun. 65 ; Barrett v. Gomeserra, Bun. 94 ; 
 Lacon v. Mertins, 3 Atk. 1 ; Wills v. Strad- 
 ling, 3 Ves. 378 ; Bowers v. Cator, 4 Ves. 
 91 ; Denton v. Stewart, Eonbl. n. to 1 
 Treat. Eq. 175 (1) ; Gregory «. Mighell, 18 
 Ves. 328; Kine .;. Balfe, 2 Bal. & Beat. 
 343; Morphett K.Jones, MS.; 1 Swa. 172; 
 Meynell v. Surtees, 25 L. J. N. S. 257 ; 3 
 Sm. & GifF. 101 ; Powell v. Lovegreve, 8 
 De G., M. & G. 357 ; [Eaton v. Whit- 
 aker, 18 Conn. 222 ; Tilton v. Tilton, 9 N 
 H. 386, 390 ; Allen's Estate, 1 Watts & S. 
 383 ; Pngh .-. Good, 3 Watts & S. 56 ; 
 Johnson v. Glancy, 4 Blackf. 94, 98 ; 
 Kidder v. Barr, 35 N. H. 235, 255.] 
 
 (/) Foxcraft v. Lister, 2 Ver. 456 ; Gilb. 
 Eq. E. 4 ; Col. P. C. IQS ; Floyd v. Buck- 
 land, 2 Free. 268 ; Mortimer v. Orchard, 2 
 Ves. jr. 243 ; Toole v. Medlicott, I Bal. & 
 Beat. 393 ; Wheeler v. D'Esterre, 2 Dow, 
 359 ; 19 Ves. 479 ; Sutherland v. Briggs, 
 1 Hare, 26 ; Shillibeer v. Jarvis, 8 De G., 
 M. & G. 79. 
 
 {g) 3 Bur, 1919 ; [Lowry v. Tew, 3 
 
 (1) In this case the plaintiff not only purchased the house, but also the furniture, 
 for which she had actually paid ; and it appears by the decree, that there was a re- 
 
CH. IV. § VII.] PART PERFORMANCE : POSSESSION. 
 
 227 
 
 5. Possession, however, must be delivered in part perform- 
 ance ; for if the purchaser obtain it wrongfully, it will not avail 
 him.(A) * And a possession which can be referred to a title dis- 
 
 Barb. Ch. 407 ; Blakeney v. Ferguson, 3 
 Eng. 272 ; Brock v. Cook, 3 Port. 464 ; 
 Annan v. Merritt, 13 Conn. 479 ; Ander- 
 son f. Chick, 1 Bailey Eq. 118 ; Massey ». 
 M'llwain, 2 Hill Ch. 426; Moore v. 
 Beasley, 3 Ham. (Ohio) 294; Shirley v. 
 Spencer, 4 Gilm. 583 ; Keats o. llector, 
 1 Ark. 391 ; Thornton v. Henry, 2 Scam. 
 216; Allen's Estate, 1 Watts & S. 383; 
 Pugh V. Good, 3 Watts & S. 56 ; Newton 
 V. Swasey, 8 N. H. 9; 4 Kent (11th ed.), 
 451 ; Parkhurst v. Van Cortlandt, 1 John. 
 Ch. 274 ; 1 Story Eq. Jur. § 761 ; Allen 
 V. Chambers, 4 Ired. Eq. 125 ; Moore v. 
 SmuU, 19 Penn. St. 237; Blakeslce v. 
 Blakeslee, 22 Penn. St. 237 ; Ottenhonse 
 V. Burleson, 11 Texas, 87; Drury v. 
 Conner, e Harr. & J. 288 ; Ellis v. Ellis, 
 Dev. Eq. 180; Tibbs v. Barker, 1 Blackf. 
 58 ; Moreland v. Lemasters, 4 Blackf. 383 ; 
 Town V. Needham, 3 Paige, 545 ; Wetmore 
 V. White, 2 Caines Cas. 87 ; Byrd v. Odem, 
 9 Ala. 756 ; Finacune o. Kearney, 1 Freem. 
 65, 69 ; Simmons v. Hill, 4 Harr. & M'H. 
 252 ; Ham v. Goodrich, 33 N. H. 45 ; 
 Wack V. Sorber, 2 Whart. 387 ; Slater v. 
 Hill, 10 Ind. 176; School Dist. No. 3 v. 
 Macloon, 4 Wise. 79 ; Bright o. Bright, 41 
 III. 101 ; Fitzsimraons «. Allen, 39 111. 
 440 ; Surcome v. Pinneger, 3 De G., M. & 
 G. 571, n. (1), and cases cited; Mason ». 
 Blair, 33 111. 194. Delivery of possession 
 is a sufficient part performance on the pai;t 
 of the vendor to sustain his suit for specific 
 performance against the purchaser, and 
 acceptance of possession is a sufficient part 
 performance, on the part of the purchaser, 
 to sustain his suit against the vendor; 
 Wilson V. The West Hartlepool Railway 
 Co. 2 De G., J. & S. 475, 485 ; the' fact of 
 the purchaser being, without liability to a 
 
 charge of trespass, in possession of the 
 vendor's land, is considered as showing un- 
 equivocally that some contract has taken 
 place between the litigant parties ; per 
 Wood V. C. in Dale v. Hamilton, 5 Hare, 
 381 ; and the court will then receive parol 
 evidence of the terms of such contract; 
 2 Dart V. & p. (4th Eng. ed.), 937. A 
 purchaser under a verbal contract, who 
 has made a partial payment and entered 
 into possession by consent of the vendor, 
 may lawfully sever timber, or peel bark 
 from the trees ; and such bark and timber, 
 when so severed, become the property of 
 the purchaser. Pike». Morey, 32 Vt. 37.] 
 (A) Cole «. White, 1 Bro. C. C. 409 ; [4 
 Kent (11th ed.), 451, note (g) ; Jervis v. 
 Smith, 1 Hoff. Ch. 470 ; Wallace v. Brown, 
 2 Stockt. (N. J.) 308; Cole v. Potts, 2 
 Stockt. (N. J.) 67 ; Charpist v. Sigerson, 
 25 Missou. 63 ; Williamson v. Williamson, 
 4 Iowa, 279 ; CarroUs o. Cox, 15 Iowa, 
 455 ; Danforth v. Lancy, 28 Ala. 274 ; 1 
 Story Eq. Jur. § 763 ; Oivens v. Calder, 
 2 Desaus. 171 ; Anderson v. Chick, 1 
 Bailey Eq. 118, 124; Robertson v. Rob, 
 ertson, 9 Watts, 32, 42; Lord v. Under- 
 dunck, 1 Sandf. 46, 48 ; Camden, &c. K. 
 R. Co. V. Stewart, 3 Green (N. J.), 489 ; 
 Eaton V. Whitaker, 18 Conn. 222. In 
 Ham V. Goodrich, 33 N. H. 45, it was held 
 that the part performance required to take 
 the case out of the operation of the statute, 
 must be such as to place the party seek- 
 ing the specific performance, in the situa- 
 tion to be held liable as a wrongdoer, on 
 account of the acts done in part execu- 
 tion of the agreement, and against which 
 liability he would be protected by its com- 
 plete execution; and that possession of 
 the land is not such part performance. 
 
 ceipt given by the defendant, the contents of which, however, are not stated in the 
 registrar's book. The defendant positively denied the agreement, and insisted that 
 the plaintiff was only tenant at will. Reg. Lib. 'A. 1785, fo. 552, by the name of 
 Denton v. Seward, lb. 717, by the name of Denton v. Stewart. 
 
 [152] 
 
228 PART PEEFOEJJANCE : POSSESSION. [CH. IV. § VII. 
 
 tinct from the agreement will not take a case out of the stat- 
 ute. (/t^) Therefore, possession by a tenant cannot be deemed a 
 part performance,(i) unless the landlord accept an additional 
 rent upon the foot of the agreement.(A;) In the case of Pain v. 
 Coombs (Z), Lord J. Knight Bruce asked whether there was any 
 authority for the proposition that the continuance in possession 
 after a parol agreement, or after a variation of a parol agreement, 
 may not be part performance of a contract with reference to the 
 statute. He was not persuaded at present that it might not. 
 But we may observe that the principle of the decided cases 
 would seem to exclude such a continuance of possession as a 
 part performance.(Z') 
 
 6. Where the agreement was for a mortgage, and that the 
 mortgagor should remain in possession of part of the property, 
 and he did so, but the conveyance was taken of all as upon an 
 absolute purchase, parol evidence was admitted to show the real 
 contract, upon the ground of part performance and of fraud.(»i) 
 But it was said by the court, that in general where a man hold- 
 ing the actual possession of land as tenant under a landlord, en- 
 ters into a verbal agreement for purchasing the land, the mere 
 circumstance that after the agreement the tenant continues in 
 possession, does not amount to part performance.(?n^) 
 
 unless the possession be delivered in pur- Smith, 1 Rich. Eq. 130, 1.33, 136 ; Johnston 
 
 suance and part execution of the agree- v. Glancy, 4 Blaclif. 94 ; Anthony v. Left- 
 
 ment charged in the hill, and the party wick, 3 Rand. 238 ; Hatcher v. Hatcher, 1 
 
 holding the possession would be liable McMuUan Eq. 311, 318; Armstrong i>. 
 
 therefor as a wrongdoer, without the Kattenhorn, 11 Ohio, 265.] 
 
 specific performance prayed for. See Wil- [h) Wills v. Stradling, ubi sup. ; S. C. 
 
 son V. West Hartlepool Ry. Co. 2 De G., as to expenditure in repairs, &c., 2 Sch. & 
 
 J. & S. 492, 493, per Turner L. J.] Lef 5 ; Brennan v. Bolton, 2 Dru. & War. 
 
 (h^) [Jacobs V. Peterborough & Shirley 240 ; Frame <>. Dawson, 14 Ves. 386 ; 
 
 R. E. Co. 8 Gush. 224 ; Byrne v. Eomaine, Lindsay v. Lynch, 2 Sch. & Lef 1 ; 
 
 2 Edw. Ch. 445, 446 ; German v. Machin, O'Reilly v. Thompson, 2 Cox, 271 ; Parker 
 
 6 Paige, 289, 293 ; 2 Dart V. & P. (4th v. Smith, 1 Col. 624 ; Egbert v. Butter, 21 
 
 Eng. ed.), 937, 938 ; Armstrong it. Katten- Beav. 560. 
 
 horn, 11 Ohio, 265 ; Knoll v. Harvey, 19 (I) 1 De G. & J. 46. 
 
 Wise. 99 ; Duvall v. Myers, 2 Md. Ch. (;i) [See Spalding v. Conzelman, 3 Mis. 
 
 ^01.] 177; Johnston v. Glancy, 4 Blackf. 94, 
 
 (i) Wills V. Stradling, 3 Ves. 378 ; 99 ; Hood v. Bowman, 1 Frecm. 290-294 ; 
 
 Smith V. Turner, Pre. C. 561 ; Savage v. Mahana v. Blunt, 20 Iowa, 142 ; Hunt v. 
 
 Carrol, 1 Bal. & Beat. 265 ; see Dowell v. Coe, 15 Iowa, 197.] 
 
 Dew, 1 Yo. & Col. C. C. 345 ; Ld. Desart (m) Lincoln v. Wright, 4 De G. & J. 16. 
 
 V. Goddard, 1 Wal. & Ly. 347; [Jones v. (ml) [The execution by the tenant, who 
 
 Peterman, 3 Serg. & R. 543 ; Smith v. was let into possession, of certain repairs 
 
CH. IV. § VII.J PAYMENT OF PURCHASE MONEY. 
 
 229 
 
 7. After much fluctuation of opinion, it seems to be settled 
 that part payment of purchase money is not a part perform- 
 ance.(«) It would, however, be difficult to refuse a specific per- 
 formance where the purchaser has paid all the purchase money ; 
 although there is authority for stating that the contract cannot 
 be enforced even where all the money has been paid.(o) "There 
 are four cases in Tothill, which arose previously to the statute of 
 
 pursuant to a parol agreement for a lease, 
 has been held sufficient part performance 
 to exclude the operation of the statute; 
 ShilUbeer v. Jarvis, 8 De G., M. & G. 79 ; 
 so, the retention of possession by a tenant 
 after the determination of the original 
 tenancy, may, under special circumstances, 
 amount to part performance; Dowell v. 
 Dew, 1 Y. & Col. C. C. 345 ; and in a re- 
 cent case, where a landlord agreed with 
 his yearly tenant to grant him a lease at 
 an increased rent, with an option of pur- 
 chasing the fee, the mere payment of the 
 additional rent was held, after the land- 
 lord's death, to be a sufficient part per- 
 formance to take the case out of the 
 statute. Nunn v. Fabian, L. E. 1 Ch. Ap. 
 35. The later cases have extended the 
 doctrine, and it is now well settled that if 
 the acts relied on are sufficient for the 
 purpose, and are such as can only be re- 
 ferred to the parol agreement, the mere 
 circumstance that the tenant was already 
 in the occupation of the property is not 
 material. It is, of course, open for the 
 vendor to show that the acts of part per- 
 formance are properly referable to the pre- 
 existing tenancy. See 2 Dart V. & P. 
 (4th Eng. ed.) 938 ; Nunn v. Fabian, L. 
 R. 1 Ch. Ap. 35 ; Armstrong v. Katten- 
 horn, 11 Ohio, 265.] 
 
 (n) Clinan v. Cooke, 1 Sch. & Lef. 22; 
 O'Herlihy v. Hedges, lb. 123 ; 14 Ves. 388 ; 
 Watt V. Evans, 4 Yo. & Col. 579 ; Strong- 
 hill V. Gulliver, 27 L. T. 258, a case of 
 marriage. [" The more modern doctrine 
 now is," says Mr. Chancellor Kent, " that 
 payment of part, or even of the whole, of 
 the pwchase money, is not of itself and 
 without something more, a part perform- 
 
 ance that will take the case out of the 
 statute, for the money may be repaid." 4 
 Kent (11th ed.), 451 ; Kidder v. Barr, 35 
 N. H. 235; 1 Story Eq. Jur. §§ 760, 761, 
 762 ; Allen v. Booker, 2 Stewart, 21 ; 
 Meredith v. Naish, 3 Stewart, 207 ; Barick- 
 man v. Kuykendall, 6 Blackf. 21 ; M'Kee v. 
 Phillips, 9 Watts, 85 ; Parker v. Wells, 6 
 Whart. 153; Glass v. Hulbert, 102 Mass. 
 28; Ham v. Goodrich, 33 N. H. 36-39; 
 Sanborn v. Sanborn, 7 Gray, 146 ; Thomp- 
 son V. Gould, 20 Pick. 138; Hughes v. 
 Morris, 2 De G., M. & G. 356 ; Allen's 
 Estate, 1 Watts & S. 383 ; PurceU v. 
 Miner, 4 Wallace, 513; Cole v. Potts, 2 
 Stockt. (N. J.) 67 ; Underbill v. Allen, 18 
 Ark. 468; Sites v. Keller, 6 .Ham. (Ohio) 
 483 ; Keats v. Rector, 1 Ark. 392 ; Eaton 
 V. Whitaker, 18 Conn. 222 ; Hood u. Bow- 
 man, 1 Freem. Ch. 290, 294 ; Townsend v. 
 Houston, 1 Harr. 532 ; Campbell v. Camp- 
 bell, 3 Stockt. 268 ; Hatcher v. Hatcher, 1 
 McMuUan Eq. 311 ; LefFerson v. Dallas, 20 
 Ohio St. 74. A party is entitled to spe- 
 cific performance where repayment of his 
 money will not restore him to his former 
 situation. Malins v. Brown, 4 Comst. 403 ; 
 Everts v. Agnes, 4 Wise. 343 ; Johnston 
 V. Hubbell, 2 Stockt. (N. J. ) 332 ; so where 
 the consideration has been paid in ser- 
 vices, the value of which cannot be esti- 
 mated. 4 Kent (11th ed.), 451, note (9) ; 
 Rhodes v. Rhodes, 3 Sandf. 279. In Iowa, 
 proof of the contract and payment of part 
 of the purchase money, or that the pur- 
 chaser took possession under the contract, 
 is sufficient to take the case out of the 
 statute. Fairbrother v. Shaw, 4 Iowa, 
 570; Olive v. Dougherty, 3 Iowa, 371.] 
 (o) 2 De G., M, & G. 356. 
 
230 PAYMENT OF PURCHASE MONEY. [CH. IV. § VII. 
 
 frauds, and appear to be applicable to this point; for equity, even 
 before the statute of frauds, would not execute a mere parol agree- 
 ment not in part performed. (/>) In two of them, in the 9th of Jac. 
 I, parol agreements were enforced, apparently on account of the 
 payment of trifling parts of the purchase money. The last of 
 these cases was decided in the 30th of Jac. 1. The bill was to be 
 relieved concerning a promise to assure land of inheritance, * of 
 which there had not been any execution, but only 55s. paid in 
 hand, and the bill was dismissed. This point received a similar 
 determination, in the next case, determined in the 15th Cha. 2. 
 The same doctrine was adhered to in a case which occurred three 
 years afterwards ; (q) for although a parol agreement for a house, 
 with 20s. paid, was decreed without further execution proved, yet 
 it appears by the judgment that the relief would not have been 
 granted if the vendor had demurred to the bill. In the last case 
 before the statute, (r) a parol agreement, upon which only 20s. 
 were paid, was carried into a specific execution. This case prob- 
 ably turned, like the one immediately preceding it, on the neg- 
 lect of the defendants to demur to the bill. The result of the 
 cases clearly is, that payment of a trifling part of the purchase 
 money was not a part performance of a parol agreement. 
 Whether payment of a considerable sum would have availed a 
 purchaser, does not appear. In Toth. 67, a case is thus stated : 
 " Moyl V, Home, by reason 200Z. was deposited towards payment, 
 decreed." The statute in relation to lands declares, that no con- 
 tract, not in writing, shall be enforced by action ; the clause which 
 relates to sales of goods declares them to be binding if something 
 is given in earnest or part payment to bind the bargain. The 
 first case shortly after the statute is in Freeman, (s) where it is 
 stated that a contract for land, and a great part of the money 
 paid, is void since the statute ; but the party that paid the money 
 may, in equity, recover back the money.(s^) And for this Free- 
 
 (p) William v. Nevill, Tot. 135 ; Feme where the point was not raised ; Alsop v. 
 V. Bullock, 206 ; Clark v. Hackwell, 228 ; Patten, 1 Ver. 472, where the court con- 
 Miller V. Blandist, 85 ; Simmons v. Come- founded the two sections of the act. 
 lius, 1 Cha. R. 128. (si) [Anthony v. Leftwick, 3 Band. 
 (q) Anon. 2 Free. 128. 238, 246. And the court will retain the 
 (r) Voll V. Smith, 3 Cha. E. IS. bill, hrought to enforce the contract, for 
 (s) 1 Free. 486, ca. 664, b. ; Leak v. the purpose of an account and compen- 
 Morrice, 2 Cha. Ca. 135 ; 1 Dick. 14, sation for expenditures and advances. 
 
CH. IV. § VII.] PAYMENT OF PURCHASE MONEY. 
 
 231 
 
 man states he saw Sir William Jones's opinion under his hand. 
 In Seagood v. Meale,(i) the payment of a guinea was agreed to 
 be clearly of no consequence in case of an agreement touching 
 lands or houses, the payment of money being only binding in 
 cases of contracts for goods ; and no distinction was taken, as 
 seems sometimes to have been thought, between the payment of 
 a substantial part of the purchase money, and of a trifling por- 
 tion. This was followed by Lord Cowper in Lord Fingal or 
 Lord Pengal v. Ross; (m) (1) he held that 1001. paid in part of 
 1501. fine for a lease could not prevail ; but the 1001. was decreed 
 to be refunded. But in Lacon v. Mertins,(a;) Lord Hardwicke 
 
 voidable merely. Sims v. Hutchins, 8 Sra. 
 & M. 328 ; Minns ». Morse, 15 Ohio, 588 ; 
 Philbrook v. Belknap, 6 Vt. 383 ; Whitney 
 V. Coehran, 1 Scam. 210 ; LefFerson v. 
 Dallas, 20 Ohio St. 74. While the vendor 
 is able and willing to comply, he is entitled 
 
 Anthony v. Leftwiek, 3 Band. 238, 246 ; 
 Parkhurst v. Van Cortlandt, 1 John. Ch. 
 274; Phillips v. Thompson, 1 John. Ch. 
 131, 149 ; Albea u. Griffin, 2 Dev. & Bat. 
 Eq. 9 ; Baker ». Carson, 1 Dev. & Bat. 
 381. An action may be maintained at law 
 for expenses incurred by one party, upon to retain any part or the whole of the con- 
 
 the faith of an oral agreement within the 
 statute of frauds, which the other party is 
 unwilling or has rendei-ed himself unable 
 to perform, the latter having accepted or 
 received the benefit of them. Lane v. 
 Shackford, 5 N. H. 133 ; Kidder v. Hunt, 
 1 Pick. 328; Richards v. Allen, 17 Maine, 
 296 ; Lucy v. Bundy, 9 N. H. 298 ; Sims 
 V. McEwen, 27 Ala. 184; Ray v. Young, 
 13 Texas, 550; Bedfield C. J. in Pierce 
 p. Paine, 28 Vt. 37, 38, 39. If money has 
 
 sideration advanced by the purchaser; 
 Duncan v. Baird, 8 Dana, 101 ; Lane v. 
 Shackford, 5 N. H. 133 ; Shaw v. Shaw, 
 6 Vt. 75 ; Oldham v. Sale, 1 B. Mon. 78 ; 
 Coughlin V. Knowles, 7 Met. 57 ; Sims «. 
 Hutchins, 8 Sm. & M. 328 ; Collier v. 
 Coates, 17 Barb. 471 ; Cobb v. HaU, 29 Vt. 
 510 ; Congdon v. Perry, 13 Gray, 3 ; Crab- 
 tree V. Wales, 19 111. 55; and so it has 
 been held that a party in possession of 
 land under an oral contract for the con- 
 
 been paid it may be recovered baek. If veyance of it to him may avail himself of 
 
 labor has been performed, a compensation 
 for it may be recovered. If land has been 
 
 the contract as a defence to an action to 
 recover the land, if Its terms are clearly 
 
 conveyed, the consideration or value of it established and the defendant has per- 
 
 may be recovered. Basford u. Pearson, 9 
 Allen, 387, 391, 392; Welch ». Lawsori, 
 32 Miss. 170; Donaldson v. Waters, 30 
 Ala. 175 ; Lane v. Shackford, 5 N. H. 133 ; 
 Holbrook ». Armstrong, 1 Fairf. 81 ; 
 Cabot V. Haekins, 3 Pick. 95 ; Pierce v. 
 Paine, 28 Vt. 37 ; ante, 126, ii. (y) ; 
 Thompson ». Gould, 20 Pick. 134 ; Cook 
 ». Doggett, 2 Allen, 439. An oral eon- 
 tract for the sale of lands Is not void, but 
 
 formed, or been ready to perform it, on his 
 part, Cornellison v. Cornellison, 1 Bush 
 (Ky.), 149; Harrow v. Johnson, 3 Met. 
 (Ky.) 578.] 
 
 (t) Pre. C. 560, 
 
 (u) 2 Eq. Ca. Ab. 46, pi. 12, * 
 (x) 3 Atk. 1 ; Dickinson v, Adams, 4 
 Ves. 722, cited' ace. The author could not 
 find this case in the registrar's book. 
 
 (1) It has been said, that this case is not to be found in the registrar's book. 
 See 4 Ves. 721. The author searched the registrar's, calendars for 1709 and 1710 
 without success. 
 
232 PAET PEEFOEMANCE BY PAETY TO BE CHAEGED. [CH. IV. § VII. 
 
 laid it down, that paying money had always been considered as 
 a part performance. In a case,(y) before Lord Rosslyn, he held 
 that the payment of a small sum, as five guineas, where the pur- 
 chase money is 1001., would not take the case out of the statute ; 
 but he seemed clearly of opinion, * that payment of a consider- 
 able part of the purchase money would be sufficient ; and he 
 "treated the case of Lord Fingal v. Ross as ill determined. The 
 opinion, however, was extra-judicial. In the case of Coles v. 
 Trecothick,(2) where the purchase money was 20,000/., and 2,000/. 
 were paid in part, the point was treated at the bar as doubtful, 
 and the court evidently declined giving an opinion on the sub- 
 ject. But Lord Redesdale, in a later case, held clearly that pay- 
 ment of purchase money is not a part performance. He said, 
 that it had always been considered that the payment of money 
 is not to be deemed a part performance, to take a case out of the 
 statute, and he relied upon Seagood v. Meale. If payment of 
 fifty guineas would take a case out of the statute, payment of 
 one guinea would do so equally ; for it is paid in both cases as 
 part payment, and no distinction can be drawn ; (a) but the great 
 reason why part payment does not take such an agreement out 
 of the statute, is, that the statute has said, that with respect to 
 goods it shall operate as a part performance. 
 
 8. Acts done by the defendant to his own prejudice are not a 
 ground for compelling him to perform the agreement where there 
 is no prejudice to the plaintifr,(6) because the ground on which 
 the court acts is fraud in refusing to perform, after performance 
 by the other party ; (c) but where the defendant, for instance, 
 
 [y) Main ». Melboum, 4 Ves. 720. the party to be charged, will not take a 
 
 {z) 9 Ves. 234 ; Ex parte Hooper, 1 case out of the statute. Caton u. Caton 
 
 Mer. 7. L. R. I Ch. Ap. 137 ; S. C. L. E. 2 H. 
 
 (a) See ace. Cordage v. Cole, 1 Saund. L. 127. It is part performance by the 
 
 319. party seeking to enforce, and not by the 
 
 (6) Buckmaster v. Harrop, 7 Ves. 341 ; other party, to which courts of equity 
 
 13 Ves. 456 ; Hawkins v. Holmes, 1 P. look, in giving relief from the statute. 
 
 Wms. 770. [So acts done which form an Glass v. Hulbert, 102 Mass. 31, per Wells 
 
 insufficient consideration to support the J. ; see Maryland Savings Bank v. Schro- 
 
 parol agreement. Millard u. Harvey, 10 eder, 8 Gill & J. 94 ; Carlisle i/. Fleming, 
 
 Jur. N. S. 1167.] 1 Harr. 421 ; Keats v. Rector, 1 Ark. 391 ; 
 
 (c) Popham v. Eyre, Lofft, 786 ; Clinan 1 Story Eq. Jur. § 759 ; Hawkins v. Hunt, 
 
 a. Cooke, 1 Sch. & Lef. 22 ; and O'Herlihy 14 111. 42 ; Luckett v. Williamson, 37 
 
 u. Hedges, 76. 123. [Part performance by Missou. 388. In Wilson k. West Hartle- 
 
 [154] 
 
CH. IV. § VII.] WHERE TEEMS CANNOT BE PROVED. 
 
 233 
 
 paid the auction duty or purchase money, it was no fraud on the 
 vendor, but a loss to himself. 
 
 9. Where a person purchases several lots of an estate, included 
 in distinct articles of sale, a part performance as to one lot will 
 not be deemed a part performance as to the others, and will 
 therefore only take the agreement out of the statute as to the 
 particular h)t.(rf) 
 
 10. Although an agreement be in part performed, yet if the 
 court is not able to ascertain the terms, the case will not be taken 
 out of the statute. If the terms be made out satisfactorily to 
 the court, contrariety of evidence is not material.(e) But a grow- 
 ing reluctance *is manifested to carry parol agreements into ex- 
 ecution,(e^) on the ground of part performance, where the terms 
 do not distinctly appear ; and although, according to several au- 
 
 pool Railway Co. 2 De G., J. & S. 485, 
 the lords justices intimated the opinion 
 that a purchaser's being let into posses- 
 sion was sufficient part performance, 
 whether the contract was sought to be en- 
 forced by him or against him. See the 
 observations of Lord Justice Turner, S. C. 
 2 De G., J. & S. 492, 493 ; 2 Dart V. & 
 P. (4th Eng. ed.) 937 ; Pugh v. Good, 3 
 "Watts & S. 56.] 
 
 (d) Buckmaster v. Harrop, 7 Ves. 341 ; 
 [see Allen's Estate, 1 Watts & S. 384, 
 389 ; Pugh v. Good, 3 Watts & S. 56 ; 
 McClure v. McClure, 1 Barr, 374, 379 ; 
 Smith V. Underdunck, 1 Sandf. 579, 581. 
 Where the parties have for many years 
 acted upon the assumption that a contract 
 existed, acts which, might not in them- 
 selves, and irrespective of the lapse of time, 
 have been sufficient to take the case out of 
 the statute, have been held to have that 
 eflfect. Blackford v. Kirkpatrick, 6 Beav. 
 232 ; see Miranville v. Silverthom, 1 Grant, 
 410; Smith u. Smith, 1 Eich. Eq. 130; 
 Williams v. Williams, 2 Dr. & S. 378; 
 affirmed, L. E. 2 Ch. Ap. 294.] 
 
 (e) 1 Ves. 221 ; Mortimer v. Orchard, 2 
 Ves. jr. 243 ; Lindsay v. Lynch, 2 Sch. & 
 
 Lef. 1 ; Mundy v. Joliffe, 9 Sim. 413 ; 5 
 My. & Cra. 167, reversed; London & Bir- 
 mingham Ey. Co. V. Winter, 1 Cra. & Phil. 
 57 ; Anon. 5 Vin. Ab. 523, pi. 40 ; Anon. 
 lb. 522, pi. 38 ; Anon. 6 Ves. 470 ; Allen 
 V. Bower, 3 Bro. C. C. 149 ; 1 Sch. & Lef. 
 37 ; Clinan v. Cooke, 1 Sch. & Lef. 22 ; 
 Boardman v. Mostyn, 6 Ves. 467 ; Symond- 
 son V. Tweed, Pre. C. 374 ; Gilb. Eq. E. 
 35; Forster v. Hale, 3 Ves. 712, 713; 
 Savage v. Carroll, 1 Bal. & Beat. 265 ; see 
 76. 404, 550, 551; Reynolds v. Waring, 
 Yo. 346 ; see Mundy v. Joliffe, 9 Sim. 413 ; 
 5 My. & Cra. 167, reversed; Meynell v. 
 Surtecs, 1 Jur. N. S. 80, 737 ; 25 L. J. N. 
 S. 257 ; 3 Sm. & Gif. 101 ; [Rhodes v. 
 Rhodes, 3 Sandf. 279 ; Burns v. Souther- 
 land, 7 Barr, 103, 106.] 
 
 (el) [See 2 Story Eq. Jur. § 766 ; Phil- 
 lips V. Thompson, 1 John. Ch. 131 ; Grant 
 V. Naylor, 4 Cranch, 234; Massey v. M'll- 
 wain, 2 Hill Ch. 421, 426; Johnson v. 
 Glancy, 4 Blackf. 94, 99 ; Hood v. Bow- 
 man, 1 Ereem. 290, 294 ; Anthony v. Left- 
 wick, 3 Eand. 238, 244 ; Allen's Estate, 1 
 Watts & S. 383 ; Erye v. Shepler, 7 Barr, 
 91 ; German v. Machin,, 6 Paige, 289, 
 293.] 
 
 [155] 
 
234 WHERE TEEMS CANNOT BE PROVED. [CH. IV. § VII. 
 
 thorities, the mere circumstance of the terms not appearing, or 
 being controverted by the parties, will not of itself deter the court 
 from taking the best measures to ascertain the real terms ; yet 
 the prevailing opinion requires the party seeking the specific per- 
 formance in such a case to show the distinct terms and nature of 
 the contract. (/) It rarely happens that an agreement cannot be , 
 distinctly proved where the estate is sold. Most of thfe cases on 
 this head have arisen on leases, where the covenants, &c., are 
 left open to future consideration. The authorities stand thus : 
 In Mortimer v. Orchard, (g-) where a parol agreement with two 
 persons had been in part performed, the plaintiffs witness proved 
 an agreement different from that set up by the bill, and the de- 
 fendants stated an agreement difTerent from both, and as there 
 had been an execution of some agreement between the parties, 
 and there were two defendants who proved the agreement set up 
 by their answers, a specific performance was decreed of the 
 agreement confessed by the answers.(g'^) In an early case, where 
 upon the faith of a parol agreement, a man entered and built, it 
 was proved that the defendant told the plaintiff that his word 
 
 (/) Mortal V. Lyons, 8 Ir. Ch. Rep. satisfactory evidence of the particular 
 
 112 i Rice V. O'Connor, 11 Ir. Ch. Rep. agreement charged to have been made. 
 
 510 ; [McGibbeny v. Burmaster, 53 Penn. Phillips v. Thompson, 1 John. Ch. 131 ; 
 
 , St. 332; Waters v. Howard, 8 Gill, 277 ; Hall u. Hall, 1 Gill, 383 ; Chambers v. 
 
 Owins V. Baldwin, 1 Md. Ch. 123 ; 1 Lecompte, 9 Missou. 575 ; Carlisle v. 
 
 Story Eq. Jur. § 764 ; Parkhurst v. Van Fleming, 1 Harr. 421 ; Goodhue v. Barn- 
 
 Cortlandt, 1 John. Ch. 274, 284 ; German well, 1 Rice, 198 ; German v. Machin, 6 
 
 V. Machin, 6 Paige, 288 ; Anthony v. Left- Paige, 288 ; 1 Story Eq. Jur. §§ 763, 764 ; 
 
 wick, 3 Rand. 238, 246_; Miller v. Cotten, Simmons v. Hill, 4 Harr. & M'H. 252 ; 
 
 8 Geo. 341, 351 ; Massey v. M'llwain, 2 Phyfe v. Wardwell, 1 Edw. Ch. 51, 52 ; 
 
 Hill Ch. 421, 426; Allen ». Chambers, 4 Moale c^. Buchanan, 11 Gill & J. 314; 
 
 Ired. Eq. 125; Hatcher w. Hatcher, 1 Mc- Graham v. Yeates, 6 Harr. & J. 229 ; 1 
 
 Mullan Eq. 311, 315 ; Tilton u. Tilton, 9 Story Eq. Jur. § 764; per Lord Romilly, 
 
 N. H. 385; Sage v. M'Guire, 4 Watts & in Price w. Salusbury, 35 Beav. 459, 461, 
 
 S. 228, 229 ; Colson c. Thompson, 2 466 ; Sanderson v. Cockermouth Railway 
 
 Wheat. 336, 341 ; Toe v. Toe, 3 Grant, 74. Co. 1 1 Beav. 497 ; Richardson v. Eyton, 
 
 The existence of the contract must be 2 De G., M. & G. 79 ; Oxford v. Provand, 
 
 made out by clear and satisfactory evi- L. R. 2 P. C. 135; Aday v. Echols, 18 
 
 dence, to entitle a party to take the ease Ala. 353.} 
 
 out of the statute of frauds, on the ground (g) 2 Ves. jr. 243 ; see Jeffery v, Ste- 
 
 of part performance. The act of part per- phens, 6 Jur. N. S. 947. 
 
 formance must clearly appear to be of the {g^ [See Ryno v. Darby, 5 C. E. Green 
 
 identical contract set up by him. It is not (N. J.), 231 ; Wallace v. Brown, 2 Stockt. 
 
 enough that the act is evidence of some 308.] 
 agreement, but it must be unequivocal and 
 
CH. IV. § VII.] WHERE THE TERMS AEp UNCERTAIN. 235 
 
 was aa good as his bond, and promised the plaintiff a lease when 
 he should have renewed his own from his landlord. Lord C. 
 Jefferies said that the defendant was guilty of a fraud, and ought 
 to be punished for it ; and so decreed a lease to the plaintiff, 
 tkottg-k the terms were uncertain. It was, he said, in the plain- 
 tiff's election for what time he would hold it, and he elected to 
 hold during the defendant's terra at the" old rent, but the plaintiff 
 was to pay costs.(A) And in a case from Yorkshire, possession 
 having been delivered in pursuance of a parol agreement, and a 
 dispute arising upon the terms of the agreement. Lord Thurlow 
 sent it to the master, upon the ground of the possession being de- 
 livered, to Inquire what the agreement was. The difficulty was in 
 ascertaining what the terms were. The master decided as well as 
 he could, and then the cause came on before Lord Rosslyn, upon 
 further directions, who drove the parties to a compromise, or re- 
 fused to go on with the decree upon the principle upon which it 
 was made.(i) Lord Thurlow, however, appears to have formed 
 a settled opinion upon this point. For in Allen v. Bower,(/i;) 
 where he considered the written memorandum as evidence of a 
 parol agreement, which was in part performed, he directed the 
 master, who had refused to admit parol evidence, to inquire and 
 state what the promise * was that was mentioned in the memo- 
 randum, and at what time the promise was made, and what in- 
 terest the tenant was to acquire in the premises under such prom- 
 ise ; and the master was to be at liberty to state specially any 
 particular circumstances that might arise on such inquiries, and 
 the parties were to be examined on interrogatories. In conse- 
 quence of this order, evidence was received which proved that 
 the tenant was to hold during his life ; and Lord Thurlow de- 
 creed a lease to be executed accordingly. And in a case before 
 Lord Redesdale, where an agreement in writing was held to 
 be within the statute, because the term for which it was to be 
 granted was not expressed, he said he should have had great 
 difficulty if there were evidence of part performance. He must 
 have directed a further inquiry, for the party had not suggested 
 by his bill, that the agreement was for any specific term, and the 
 case stood both on the pleadings and evidence imperfect on that 
 
 (h) Anon. 5 Vin. Ab, 323, pi. 40 ; Anon. (i) Anon. 6 Ves. 470. 
 lb, 522, pi. 38. (h) 3 Bro. C. C. 149. 
 
 [156] 
 
236 WHERE THE TERMS ARE UNCERTAIN. [CH. IV. § VII. 
 
 heacI.(Z) And in a case before Lord Eldon, he thought the court 
 must at least endeavor to collect, if they can, what are the terms 
 the parties have referred to.(j») But in Symondson v. Tweed,(w) 
 it was laid down that in all cases wherever the court had decreed 
 a specific execution of a parol agreement, yet the same had been 
 supported and made out by letters in writing, and the particular 
 terms stipulated therein, as a foundation for the decree ; otherwise 
 the court would never carry such an agreement into execution. 
 Lord Alvanley (o) disapproved of acting in such a case beyond 
 compelling the repayment of the money, and Lord Eldon also 
 said, that perhaps if it was res integ-ra, the soundest rule would 
 be, that if the party leaves it uncertain, the agreement is not 
 taken out of the statute sufficiently to admit of its being en- 
 forced ; and in a case in Ireland, Lord Manners refused to grant 
 a reference for the purpose of ascertaining the terms of the con- 
 tract.(p) And in a later case,(q) a bill for a specific performance 
 was dismissed with costs because the agreement was by parol, 
 and although part performed, the terms of it could not be made 
 out by reason of the variance between the witnesses for the 
 plaintiff. 
 
 11. Where a parol agreement is so far executed as to entitle 
 either of the parties to require a specific execution of it, it will 
 be binding on the representatives of the other party in case of 
 his death, to the same extent as he himself was bound by it.(r) 
 
 12. Lord Redesdale (s) expressed an opinion that a parol 
 agreement * by a tenant for life with a power of leasing, to grant 
 a lease under his power, in part performed, would not, perhaps, 
 be enforced against a remainder-man. For the party himself is 
 bound by a part performance of a parol agreement, principally 
 on the ground of fraud, which is personal. Such a ground could 
 
 (Z) Clinan v. Cooke, 1 Sch. & Lef. 22. (?) Reynolds v. "Waring, Yo. 346 ; 
 
 (m) Boai-dman i). Mostyn, 6 Ves. 467. Mundy v. Joliflfe, 9 Sim. 413; 5 My. & 
 
 (n) Free. C. 374; Gilb. Eq. R. 35. Cra. 167. 
 
 (o)' Forster v. Hale, 3 Ves. 712, 713. (r) Inf. ch. 5 ;\ [see Grant v. Craigmiles, 
 
 {p) Savage v. Carroll, 1 Bal. & Beat. 1 Bibb, 203 ;, "Wilkinson v. Wilkinson, 1 
 
 265; lb. 404, 550, 551; [see Phillips v. Desaus. 201.] 
 
 Thompson, 1 John. Ch. 131; 4 Kent (11th (s) Shannon v. Bradstreet, 1 Sch. & 
 
 ed.), 451 ; 1 Story Eq. Jur. §§ 764, 767; Lef. 52; Lowe & Swift, 2 Bal. & Beat 
 
 Eowton u. Eowton, 1 Hen. & M. 92 ; 529 ; Dowell v. Dew, 1 Yo. & Col. C. C. 
 
 Parkhurst v. Van Cortlandt, 1 John. Ch. 345 ; Trotman v. Flesher, 3 Gif. 1 ; see 
 
 281.] Rice V. O'Connor, 11 Ir. Ch. Kep. 217. 
 
 [167] 
 
CH. IV. § VlII.] 
 
 OF PAROL EVIDENCE. 
 
 237 
 
 scarcely be made to apply to the case of a remainder-man, unless 
 money had been expended, and there had been an acquiescence 
 after the remainder vested.(<) 
 
 13. In a case where it was alleged on one side, that under a 
 parol agreement the purchase money had been paid and posses- 
 sion delivered ; and on the other, that there was no sale, but that 
 possession was delivered to make a qualification, and the alleged 
 purchaser was a mere agent, and both the seller and purchaser 
 were dead, an issue was directed whether the purchaser was, at 
 his death, beneficially entitled to the premises in question.(M) 
 
 SECTION VIII. 
 
 OP THE ADMISSIBILITY OF PAROL EVIDENCE TO VAEY WRITTEN INSTRU- 
 MENTS. 
 
 4. 
 5. 
 
 9. 
 10. 
 
 11. 
 12. 
 
 15. 
 IT. 
 
 19. 
 
 Parol averments to support a deed. 
 
 Parol addition rejected. 
 
 So of what passed upon the treaty. 
 
 Parol declaration of auctioneer rejected. 
 
 Parol addition also rejected in equity. 
 Unless on behalf of a defendant in 
 equity. — Where there is fraud. — Or 
 mistake or surprise. 
 
 Martin v. Pycroft. 
 
 But not to explain the instrument. Clowes 
 «i. Higginson considered. 
 
 Croome v. Lediard considered. 
 
 Parol variations after the contract, with- 
 out consideration, rejected. 
 
 Where written agreement correct, parol 
 addition rejected altogether. 
 
 20. Parol evidence of collateral matters, as 
 
 taxes, &c., rejected. 
 
 21. No variation by parol. 
 
 22. Waiver of stipulation for good title inad- 
 
 . missible. 
 
 23. Contra in equity. 
 
 24. Time cannot be waived by parol at law. 
 
 25. Contra in equity. 
 
 26. Parol variation part performed enforced 
 
 in equity. 
 
 27. Result as to parol variations. 
 
 28. Entire agreement for realty and person- 
 
 alty. 
 
 29. Equitable powers in courts of law. 
 
 We may consider, 1st, where there is not any ambiguity in the 
 written instrument ; 2dly, where there is an ambiguity ; and, 
 3dly, where a term of an agreement is omitted or varied in the 
 written instrument by mistake or fraud. And, — 
 
 1. Both before and since the statute" of frauds, parol evidence 
 
 has been admitted of collateral and independent facts, which 
 
 tended to * support a deed. Thus, where in a conveyance 28^. only 
 
 was stated to have been received, parol evidence was admitted 
 
 (t) Sugd. Pow. 555, 8th ed. (m) Bartlett v. Randall, 3 Mer. 466. 
 
 ri58] 
 
238 
 
 OF PAROL EVIDENCE. 
 
 [CH, 
 
 IV. 
 
 VIII. 
 
 to prove that 21. more was actually paid.(a) And in a later case, 
 parol evidence was received that a sum of money was paid as 
 a premium in order to constitute the relation of master and 
 apprentice.(6) 
 
 2. But parol evidence is not admissible to disannul and sub- 
 stantially vary a written agreement ; for, as Lord Hardwicke ob- 
 served, to add anything to an agreement in writing by admitting 
 parol evidence, is not only contrary to the statute, but to the rule 
 of the common law before that statute was in being.(c) In 
 
 (o) 2 Eo. Ab. 786 (N.) pi. I ; 1 Rep. 
 176, a. ; Rex v. Inhab. of Scammonden, 8 
 T. Rep. 474 ; [see 1 Phil. Ev. (4th Am. 
 ed.) 551 ; Pt. 2, p. 1444, in note, 965; 1 
 Greenl. Et. §285; Gresley Eq. Ev. 196 
 [28] et seq. ; per Taylor J. in Brooks v. 
 Maltbie, 4 Stew. & P. 106; per Hunting- 
 ton J. in Johnson v. Blackman, 1 1 Conn. 
 321, 352, 353 ; Berlin v. Norwich, 10 John. 
 229, 230; Reading v. Weston, 8 Conn. 
 117 ; post, 645, § 72, & note.] 
 
 (6) Rex V. Inhab. of Laindon, 8 T. Rep. 
 379; 2 Cha. C. 143; Tnll v. Parlett, 1 
 Moo. & Mai. 472 ; Rex v. Inhab. of Wick- 
 ham, 2 Ad. & El. 517. [If no ,considera- 
 tion is expressed in a written agreement, 
 or it purports to hare been made on divers 
 good considerations, the true consideration 
 may be proved aliunde. Arms v. Ashley, 
 4 Pick. 71 ; Tingley h. Cutter, 7 Conn. 
 291 ; Cummings v. Dennett, 26 Maine, 
 397 ; White v. Weeks, 1 Penn. 486 ; Dav- 
 enport V. Mason, 1 5 Mass. 85 ; Townend 
 V. Toker, L. R. 1 Ch. Ap. 459 ; Hartleys. 
 McAnulty, 4 Yeates, 25 ; Stevens v. Grif- 
 iith, 3 Vt. 448 ; Jones v. Sasser, 1 Dev. & 
 Bat. 466; Merle v. Mathews, 26 Cal. 
 455 ; Cunningham v. Dwyer, 23 Md. 219. 
 But it has been held that where a consid- 
 eration is set forth, evidence is hot admis- 
 sible to show that a greater or a different 
 consideration was intended. Schermer- 
 horn V. Vanderheyden, 1 John. 139 ; Maig- 
 ley V. Haner, 7 John. 341 ; Howes v. 
 Barker, 3 John. 506 ; Emery v. Chase, 5 
 Greenl. 232 ; Winchell v. Latham, 6 
 Cowen, 690. Unless the words, "for 
 other considerations," or equivalent words 
 
 are used. Maigley v. Haner, 7 John. 341 ; 
 Benedict v. Lynch, 1 John. Ch. 370; 
 Pomeroy v. Bailey, 43 N. H. 118; see 
 Elliott V. Giese, 7 Harr. & J. 457 ; Leonard 
 V. Vredenburgh, 8 John. 29 ; Hyne v. 
 Campbell, 6 Monroe, 291 ; Miller v. Bag- 
 well, 3 McCord, 568 ; Mead v. Steger, 5 
 Port. 506. This, however, is not the set- 
 tled rule upon the subject. The cases have 
 been materially conflicting. McMahan v. 
 Stewart, 23 Ind. 590 ; Buckley's App. 48 . 
 Penn. St. 491 ; Hendricks v. Crowley, 31 
 Cal. 471. It has been held in a late.case 
 in Massachusetts, that other considera- 
 tions for a contract may be shown by 
 parol, although some are named in the 
 written instrument ; the language of the 
 contract furnishing a clear implication of 
 the consideration offered to be proved. 
 Goward v. Waters, 98 Mass. 596, 599, and 
 cases cited ; Townend v. Toker, L. R. 1 
 Ch. Ap. 459.] 
 
 (c)'Parteriche v. Powlet, 2 Atk. 383; 
 Tinney v. Tinney, 3 Atk. 8 ; Binstead v. 
 Coleman, Bun. 65 ; Hogg v. Snaith, 1 
 Taunt. 347 ; Meres v. Ansell, 3 Wils. 275 ; 
 see Mease v. Mease, Cow. 47 .; Lofft, 457 ; 
 Cuff V. Penn, 1 Man. & Sel. 21 ; Greaves 
 V. Ashlin, 3 Ca. 426 ; Hope v. Atkins, 1 
 Pri. 143; [1 Greenl. Ev. § 275; Stackpole 
 V. Arnold, 11 Mass. 30, 31, per Parker C. 
 J. ; McLellan v. Cumberland Bank, 24 
 Maine, 566 ; Irnham v. Child, 1 Bro. C. 
 C. (Perkins's ed.) 92-95 in notes; Port- 
 more V. Morris, 2 Bro. C. C. 218, & notes ; 
 Rich V. Jackson, 4 Bro. C. C. 514, & 
 notes ; Wilde J. in Cummings v. Arnold, 
 3 Met. 489 ; post, 105, n. (ttiI).] 
 
• CH. IV. § VIII.] OF PAROL EVIDENCE. 239 
 
 Preston v. Merceau,(d) by an agreement in writing a house was 
 let at 261. a year; and the landlord attempted to show, by parol 
 evidence, that the tenant had agreed to pay the ground-rent for 
 the house to the original landlord, over and above the 2QI. a year ; 
 the court rejected the evidence. 
 
 3. In a later case, the court observed that, by the general rules of 
 the common law, if there be a contract which has been reduced 
 into writing, verbal evidence is not allowed to be given of what 
 passed between the parties either before the written instrument 
 was made, or during the time that it was in a state of prepara- 
 tion, so as to add to or subtract from, or in any manner to vary 
 or qualify the written contract.(d^) But after the agreemerrt has 
 been reduced into writing, it is competent to the parties, at any 
 time before breach of it, by a new contract not in writing, either 
 altogether to waive, dissolve, or annul the former agreement, or 
 in any manner to add to or subtract from, or vary or qualify the 
 terms of it, and thus to make a new contract, which is to be 
 proved partly by the written agreement, and partly by the subse- 
 quent verbal terms, engrafted upon what will be thus left of the 
 written agreement.(e) But this refers only to an agreement at 
 
 (rf) 2 Black. 1249; Davis v. Symonds, of a deed, was held admissible in that 
 
 1 Cox, 402. State to show that the conveyance, though 
 
 {d^) [Story Sales (4th ed.), §§ 137, 360; nominally absolute, was in fact for the 
 
 Dodge V. Nichols, 5 Allen, 548 ; ante, 56, & purjjose of enabling the grantor to insti- 
 
 note ; Collins v. Banmgardner, 52 Penn. tute an ejectment in the name of the gran- 
 
 St. 461. Parol evidence is inadmissible tee in the circuit court of the United 
 
 to prove an agreement entered into at the States. Ingham v. Crasy, 1 Penn. 389. 
 
 time of the execution of a quit-claim deed So in debt for rent on an indenture of 
 
 ofland with covenants of warranty against lease, parol evidence was admitted to 
 
 all persons claiming under the grantor, prove that, at the time of executing the 
 
 that the money should be repaid by the lease, it was agreed by the parties, that the 
 
 grantor, in case of a failure of title. Earle rent should terminate by a certain day, 
 
 V. De Witt, 6 Allen, 520 ; see Holbrook v. being about nine months earlier than the 
 
 Holbrook, 30 Vt. 432. On the matter of time expressed in the lease. Hultz v. 
 
 parol evidence in Pennsylvania, it is said Wright, 16 Serg. & R. 345 ; see, also, Mc- 
 
 by Huston J. in Bollinger v. Eckhert, 16 CuUoch v. Girard, 4 Wash. C. C. 289 ; 
 
 Serg. & R. 424, " We seem to have settled Bertsch v. Lehigh Canal & Nav. Co. 4 
 
 down in this: Whatever material to the Eawle, 130; Packer v. Hook, 16 Serg. & 
 
 contract was expressed and agreed to when R. 327 ; Keller v. Leib, 1 Penn. 220 ; Een- 
 
 the bargain was concluded, and the article shaw v. Gana, 7 Barr, 117 ; Baltimore, &c. 
 
 drawing, may, if not expressed in the ar- Steamboat Co. v. Brown, 54 Penn. St. 
 
 tide, be proved by parol, unless it is ex- 77.] 
 
 pressly contrary to the writing.'' Parol (c) Goss v. Ld. Nugent, 2 Nev. & Man. 
 
 evidence of what passed at the execution 33, 34 ; [Cnmmings v. Arnold^, 3 Met. 489, 
 
240 
 
 OF PAROL EVIDENCE 
 
 [CH. IV. § vnK 
 
 common law. A contract by deed can, of course, at law only 
 be discharged by deed.(/) 
 
 per Wilde J. ; 1 Greenl. Ev. §§ 302, 303 ; 
 Chitty Contr. (10th Am. ed.) 115, 116, in 
 note; Brewster v. Countiyman, 12 Wend. 
 446 ; Richardson v. Cooper, 25 Maine, 450, 
 452 ; Howard v. Wilmington & Susq. R. R. 
 Co. 1 Gill, 311 ; Rogers v. Atkinson, 1 
 Kelly, 12; Neil v. Cheves, 1 Bailey, 537 ; 
 Franklin v. Long, 7 Gill & J. 407 ; Munroe 
 V. Perkins, 9 Pick. 298 ; Cummings v. Put- 
 nam, 19 N. H. 569; Dearborn o. Cross, 9 
 Cowen, 48 ; Delacroix v. Biilkley, 13 
 Wend. 71 ; Vicary v. Moore, 2 Watts, 
 456, 457 ; Watkins v. Hodges, 6 Harr. & 
 J. 28 ; Brock v. Sturdivant, 3 Fairf. 81 ; 
 Clement v. Durgin, 5 Greenl. 9 ; Marshall 
 V. Baker, 19 Maine, 402; Heatherly v. 
 Record, 12 Texas, 49 ; Coates v. Sangston, 
 5 Md. 121 ; Miles v. Roberts, 34 N. H. 
 345 ; Goodrich v. Longley, 4 Gray, 383, 
 per Shaw C. J. ; McGrann v. North Leb- 
 anon R. R. Co. 29 Penn. St. 82; The 
 Grafton Bank v. Woodward, 5 N. H. 99 ; 
 Haynes v. Fuller, 40 Maine, 162; Lang- 
 ford V. Cummings, 4 Ala. 4G ; Fry Specif. 
 Perform. (2d Am. ed.) 405, § 615, & note. 
 In the case of a sealed contract, the time 
 of performance fixed by it may be en- 
 larged by a writing under seal, or by 
 parol, and the remainder of the contract 
 will be governed by the terms of the sealed 
 instrument. Stone v. Sprague, 20 Barb. 
 509 ; Clark u. Dales, 20 Barb. 42 ; Bar- 
 ker V. Troy & Rutland R. R. Co. 27 Vt. 
 766 ; McGrann u. North Lebanon R. R. 
 Co. 29 Penn. St. 82 ; Stryker v. Vander- 
 bilt, 1 Dutch. (N. J.) 482 ; Crane v. De- 
 camp, 6 C. E. Green, 422. Where a 
 place ■ of performance has been agreed 
 upon in a written contract, it may be 
 changed by parol. So where the written 
 contract does not provide for the place of 
 performance, a place may be agreed upon 
 by parol. Miles v. Roberts, 34 N. H. 245. 
 The alteration of a sealed contract by 
 parol is said to make it all parol, in Vic- 
 ary V. Moore, 2 Watts, 451, 456, 457 ; 
 Lawallw. Rader, 24 Penn. St. 314; Mil- 
 
 lard V. Baldwin, 3 Gray, 484, 486. But 
 see Cummings i;. Arnold, 3 Met. 486. It 
 is not, however, every modification of a 
 written contract by parol that will have 
 this effect. McGrann o. North Lebanon 
 R. R. Co. 29 Penn. St. 82. In order to 
 render the parol variation available, the 
 action should be grounded on the subse- 
 quent agreement, with which the written 
 agreement is in such case, considered as , 
 incorporated. Vicary v. Moore, 2 Watts, 
 451; Mead v. De Golyer, 16 Wend. 532; 
 Baird v. Blairgrove, 1 Wash. 170 ; 
 Langworthy v. Smith, 2 Wend. 587 ; 
 Marks v. Robinson, 1 Bailey, 89 ; Mill- 
 dam Foundry v. Hovey, 21 Pick. 417, 
 428, 429 ; Spangler v. Springer, 22 Penn. 
 St. 454 ; Blasdell v. Souther, 6 Gray, 151 ;] 
 post, as to evidence of usage of trade, or 
 as between landlord and tenant. Spartali 
 0. Benecke, 10 C. B. 212; Hamor v. 
 Groves, 15 C. B. 667. 
 
 (/) Brymer v. Thames, &c. Ey. Co. 2 
 Ex. 549, 5 Ex. -696 ; [Patrick v. Adams, ' 
 29 Vt. 376 ; Bond v. Jackson, Cooke, 500 ; 
 Sinard v. Patterson, 3 Blackf. 353 ; Bar- 
 ker V. Troy & Rut. R. R. Co. 27 Vt. 766. 
 But in Dearborn v. Cross, 7 Cowen, 48, it 
 was held, that a bond or other specialty 
 may be discharged or released by a parol 
 agreement between the parties, where the 
 parol agreement is executed. The same* 
 doctrine received the sanction of the court 
 in Munroe v. Perkins, 9 Pick. 298, and in 
 Patrick v. Adams, 29 Vt. 376 ; see, also, 
 Fleming v. Gilbert, 3 John. 358 ; Latti- 
 more v. Harsen, 14 John. 330 ; Lawrence 
 V. Dole, 1 1 Vt. 549 ; Le Fevre v. Le Fevre, 
 4 Serg. & R. 241 ; Neil v. Tillman, 1 
 Bailey, 538, note (a) ; Merrill i^. Ithaca 
 & Oswego E. R. Co. 16 Wend. 586; Al- 
 len V. Jaquish, 21 Wend. 628; Watchman 
 V. Crook, 5 Gill & J. 239 ; Ford v. Camp- 
 field, 6 Halst. 327 ; Luciana v. Amer. Fire 
 Ins. Co. 2 Whart. 167; Milldam Foun- 
 dry V. Hovey, 21 Pick. 47. In Delacroix 
 V. Bulkley, 13 Wend. 75, Savage C. J., 
 
GH. IV. § VIII.] TO VARY WRITTEN INSTRUMENTS. 
 
 241 
 
 4. And upon the general rule of law as we have seen, verbal 
 declarations by an auctioneer, in the auction-room, contrary to 
 the printed conditions of sale, are inadmissible as evidence, 
 unless, perhaps, the purchaser has particular personal information 
 given him of the * mistake in the particulars ; (g) and are inad- 
 missible in equity as well as at law. If the written agreement 
 is silent on the point, neither party can avoid it at law by plead- 
 ing a condition to which it was made subject.(A) Upon the sale 
 of timber by a written particular which was silent as to the 
 quantity, parol evidence was not allowed to show that the auc- 
 tioneer verbally warranted the quantity to be eighty tons : it w^as 
 insisted that this evidence was admissible, because it did not con- 
 tradict the particular, but merely supplied its defect in not stating 
 the quantity,(t) but the argument did not prevail. 
 
 5. The rules of evidence are universally the same in courts of 
 law and equity. Parol evidence, w-hich goes to substantially 
 alter a written agreement, cannot be received in a court of equity 
 any more than in a court of law. (A) Therefore, the plaintiff ca.n 
 
 6 Bea. 528 ; Doe v. Lea, 11 East, 312 ; Ford 
 o. Yates, 2 Man. & Gr. 549 ; Doe it. Ben- 
 son, 4 B. & Aid. 588 ; [Thompson v. 
 Kelly, 101 Mass. 291 ; Rankin v. Matthew.s, 
 
 7 Ired. 286 ; Wright v. Dekliue, Peters C. 
 
 after reviewing the New York decisions, 
 declared the result to be " that a sealed ex- 
 ecutory contract cannot be released or re- 
 scinded by a parol executory contract ; but 
 that after breach of a sealed contract, a 
 right of action may be waived or released 
 by a new parol contract, in relation to the 
 subject matter, or by any valid parol ex- 
 ecuted contract." See Suydam v.' Jones, 
 10 Wend. 180; Barnard u. Darling, 11 
 Wend. 27 ; Blood v. Hardy, 15 Maine, 71. 
 The same was held in Smith v. Lewis, 24 
 Conn. 624. In Blasdell v. Souther, 6 
 Gray, 149, 151, Shaw 0. J. said : " We 
 suppose there is no doubt that a valid oral 
 contract may be made upon the basis of a 
 preexisting contract, either by specialty or 
 by an unsealed written instrument, modi- 
 fying, changing, and altering the terms of 
 the written agreement." Milldam Foun- 
 dry V. Hovey, 21 Pick. 417 ; Cummings v. 
 Arnold, 3 Met. 486; see Haynes v. Fuller, 
 40 Maine, 162.] 
 
 {g) Gunnis v. Erhart, 1 H. Black. 289 ; 
 Jenkinson v. Pepys, 6 Ves. 330 ; 13 Vcs. 
 471 ; Fife </. Clayton, 13 Ves. 546 ; Hig- 
 ginson v. Clowes, 15 Ves. 516,521 ; 1 Ves. 
 
 VOL. I. 16 
 
 C. 199 ; Wainwright v. Read, 1 Desaus. 
 Eq. 573 ; Pew v. Lividais, 3 Miller (La.), 
 459 ; Livingstone v. Byrne, 11 John. 555.] 
 
 {h) Canhan v. Barry, 15 C. B. 597. 
 
 (t) Powell V. Edmunds, 12 East, 6 ; Jones 
 V. Edney, 3 Camp. 285. [See Wright v 
 Dekline, Peters C. C. 199; Cannon o. 
 Mitchell, 2 Desaus. 320; Wainwright v. 
 Read, I Desaus. 573.] 
 
 {k) 3 Wils. 276 ; Foot v. Selway, 2 Cha. 
 C. 142 ; [Chitty Contr. (10th Am. ed.) 
 103, 104; Elysville Manuf. Co. o. Okisko^ 
 Co. 1 Md. Ch. 392 ; Dwight v. Pomeroy, 
 17 Mass. 303 ; Bradbury v. White, 4 
 Greenl. 394 ; Carr «. Duval, 14 Peters, 77 ; 
 1 Story Eq Jur. §§ 767, 1531 ; Bradbury 
 V. White, 4 Greenl. 394 ; Brown v. Haven, 
 3 Fairf. 179 ; Evelethi). Wilson, 15 Maine,, 
 109 ; Stevens v. Cooper, 1 John. Ch. 429 ; 
 Movan <.. Hays, 1 John. Ch. 339 ; Steere 
 u. Steere, 5 John. Ch. 1 ; Church i: 
 Church, 4 Yeates, 280 ; Harrison v. Talbot, 
 
 [159] 
 
242 OF PAKOL EVIDENCE [CH. IV. § VIII. 
 
 hot 4how that it was agreed by parol that part of the estate 
 should not be conveyed. (/) 
 
 6. Neither can it be proved by parol evidence that an agree- 
 ment to sell to two jointly was really a contract with one only, 
 and the other was to have a security for the money he might ad- 
 vance, for that would contradict the written agreement, (m) 
 
 7. And if a material term be added by one party to a written 
 agreement after its execution, he destroys his own rights under 
 the instrument.(mi) This doctrine has been referred to the stat- 
 ute of frauds, but it seems to depend on tlie principles of the 
 common law.(n) 
 
 8. In the case of Besant v. E.ichards,(o) where the purchaser was 
 plaintiff, the contract described the property as held by one Wat- 
 son, and the sale was to be completed at Michaelmas. Watson 
 held an agreement for a lease for ten years, but the seller repre- 
 sented to the purchaser that this agreement was void, and that 
 he had served Watson with notice to quit at Michaelmas, and 
 that he would give possession at that time. The tenant refused 
 to quit, and the master of the rolls held that the purchaser was 
 entitled to be released from the agreement altogether, or if he 
 chose he might perform it and have compensation, and the plain- 
 tiff electing to take the agreement with a compensation, a decrt^e 
 was made accordingly ; but it seems difficult to sustain this de- 
 cision consistently with the authorities, although there might have 
 been sufficient ground to have released the purchaser altogether. 
 
 2 Dana, 258, 259 ; Timberlake v. Parish, 5 of alterations is only prima facie evidenpe 
 Dana, 350, 351, 352 ; Holmes v. Simons, of a fraudulent intent ; Adams v. Prye, 3 
 
 3 Desaus. 149, 152 ; Dupree v. M'Donald, Met. 103 : even a material alteration made 
 
 4 Desaus. 209 ; Tilton w. Til ton, 9 N. H. .byastrangef does not avoid the agreement; 
 392, Wilcox J. ; Richardson u. Thompson, Nichols i/. Johnson, 10 Conn. 192; Boyd 
 1 Humph. 151 ; Chetwood v. Brittian, 1 u. McConnell, 10 Humph. 68 ; Lee v. 
 Green Ch. 439 ; Knight o. Bunn, 7 Ired. Alexander, 9 B. Mon. 25 ; . an immate- 
 Eq. 77 ; Toomer v. Lucas, 13 Grattan, rial alteration will not avoid a contract 
 705.] by whomsoever made ; Woodbury J. in 
 
 (I) Lawson v. Laude, 1 Dick. 346 ; Fell Bowers v. Jewell, 2 N. H. 543 ; Pequamket 
 
 V. Chamberlain, 2 Dick. 484 ; the facts are Bridge v. Mather, 8 N. H. 139 ; Hunt v. 
 
 not in the registrar's book ; Eeg. Lib. A. Adams, 6 Mass. 519 ; Falmouth v. Roberts, 
 
 1772, fol. 1, 496. 9 M. & W. 469 ; Blair v. Bank of Tennes- 
 
 (m) Davis v. Symonds, 1 Cox, 402; see, 11 Humph. 84.] 
 
 [see Jenkins v. Eldredge, 3 Story, 181.] (n) Powell v. Divett, 15 East, 29 ; Mollett 
 
 (ml) [See Chitty Contr. OOth Am. ed.) v. Wackerbath, 5 C. B. 181. 
 
 757, & note, 867-869, & in notes. The fact (o) Tam. 509. 
 
CH. IV. § VIII.] TO VABY WKITTEN INSTRUMENTS. 
 
 243 
 
 * 9. Lord Eldon refused to execute an agreement with a parol 
 variation on the ground of mistake or surprise, which the de- 
 fendant by his answer denied, and yet upon a cross-bill admitted 
 evidence of mistake or surprise as a defence.(p) For although 
 equity cannot enforce an agreement with such a variation,(g') 
 yet when it is called upon to exercise its peculiar jurisdiction, by 
 decreeing a specific performance, the party to be charged is to be 
 let in to show, that, under the circumstances, the plaintiff is not 
 entitled to have the agreement specifically performed. (/•) Col- 
 
 (p) Ld. Townshend v. Stangroom, 6 
 Ves. 328 ; 3 Ves. 38, u. ; 1 Ves. & Bea. 526, 
 527 i 2 Dru. & War. 232 ; Higginson v. 
 Clowes, 15 Ves. 516 ; Hosier v. Eead, 9 
 Mod. 86, not in registrar's book; Att. 
 Gea. u. Sitwell, 1 Yo. & Col. 559 ; Howard 
 V. Wright, 2 C. P. Coo. 114, n.; Atten- 
 borough V. Edwards, 24 L. T. 86 ; Vouillon 
 V. States, 2 Jur. N. S. 845 ; Barnard v. 
 Cave, 26 Beav. 253 ; [see Western R. R. 
 Corp. u. Babcock, 6 Met. 346.] 
 
 (?) Woollam V. Hearn, 7 Ves. 211; 1 
 Sch. & Lef. 39 ; [1 Story Eq. Jur. § 161.] 
 
 (r) 7 Ves. 219 ; Myers v. Watson, 1 
 Sim. N. S. 523 ; [Western Railroad Corp. 
 V. Babcock, 6 Met. 346 ; Brooks v. Wheel- 
 ock, U Pick. 440; Chappell v. Gregory, 
 34 Beav. 250 ; see Westbrook v. Harbeson. 
 2 McCord Ch. 115 ; Ward v. Lodbetter, 1 
 Dev. & Batt. 496 ; Gresley Eq. Ev. 206, 
 207. In Gillespie v. Moon, 2 John. Ch. 
 585, it was held by Chancellor Kent, that 
 equity will relieve against a mistake, as 
 well as against a fraud, in a deed or 
 contract in writing ; and parol evidence is 
 admissible to prove the mistake, though it 
 is denied in the answer ; and this, either 
 where the plaintiff seeks relief affirma- 
 tively, on the ground of the mistake, or 
 where the defendant sets ,it up as a de- 
 fence, or to rebut an equity. The same 
 ■doctrine was maintained by the same high 
 authority in Keisselbrack o. Livingston, 4 
 John. Ch. 144. The evidence in such case 
 must be clear and strong, so as to estab- 
 lish the mistake to the entire satisfaction 
 of the court. Gillespie v. Moon, 2 John. 
 Ch. 585; 1 Story Eq. Jur. § 157; Tucker 
 
 V. Madden, 44 Maine, 200'; Tilton v. 
 Tilton, 9 N. H. 392, 393; Canedy v. 
 Marcy, 13 Gray, 377 ; Edmunds' Appeal, 
 59 Penn. St. 220 ; Hileman v. Wright, 9 
 Ind. 126; Linn v. Barkey, 7 Ind. 69; 
 Davidson v. Greer, 3 Sneed, 384 ; Ruffner 
 V. McConnell, 17 111. 212 ; S'ry Specif. Perf. 
 (Am. ed.) 312, § 505. On the trial by jury 
 of an issue whether the parties to a deed 
 intended to have a clause inserted therein, 
 but omitted by a common mistake to have 
 it done, the intention and mistake must be 
 proved beyond a reasonable doubt, and not 
 merely by a preponderance of evidence. 
 Stockbridge Iron Co. v. Hudson Iron Co. 
 102 Mass. 45. It must also appear that 
 the mistake was mutual and common to 
 both parties. Sawyer v. Hovey, 3 Allen, 
 331 ; Andrews v. Essex Ins. Co. 3 Mason, 
 10; Green v. Morris, 1 Beasley (N. J.) 
 170; Durant v. Bacot, 13 N. J. Ch. 201 ; 
 Canedy v. Marcy, 13 Gray, 373 ; Stock- 
 bridge Iron Co. V. Hudson River Iron Co. 
 102 Mass. 48 ; Nevius v. Dunlap, 33 N. Y. 
 676 ; Shay v. Pettes, 35 111. 360 ; Harris v. 
 Pepperell, L. R. 5 Eq. 1 ; Earl of Bedford 
 u. Earl of Roraney, 30 Beav. 431 ; Gan-ard 
 V. Frankel, 30 Beav. 445 ; Schettiger v. 
 Hopple, 3 Grant's Cas. 54 ; Brown o. 
 Lamphear, 35 Vt. 252; Fry Specif. Perf. 
 (Am. ed.) 310, § 500, et seq. ; White v. 
 Williams, 48 Barb. 222 ; Smith v. Mackin, 
 4 Lansing (N. Y.), 41. But this rule, that 
 the court will not interfere unless the mis- 
 take was mutual, does hot apply to the 
 case of a contract which has been executed 
 between the parties in the relation of 
 vendor and vendee, whom it is in the power 
 
 [160] 
 
244 
 
 OF PAEOL EVIDENCE 
 
 [CH. IV. § VIII. 
 
 lateral circumstances may be proved by parol as a defense ; for 
 example, duress at law, fraud, and circumvention in equity ; for 
 
 of the court to replace in their original 
 position. Harris v. Pepperell, L. R. 5 Eq. 
 1. Specific performance will not, however, 
 be decreed with the parol agreement super- 
 induced upon it, unless the party praying 
 for the specific performance has conducted, 
 himself with perfect good faith. Walters 
 u. Morgan, 3 De G., P. & J.' 725. "Where 
 there was an agreement to execute a lease 
 for lives, "containing the usual clauses, 
 restrictions, and reservations, contained in 
 leases given by the defendant," it being 
 necessary to resort to proof dehors the 
 agreement, to ascertain what were the 
 usual clauses, &c., in such a, lease, it was 
 held to he open to the plaintiflF also, to 
 show by parol that it was agreed and un- 
 derstood at the time, that a particular res- 
 ervation was not to be inserted in the lease, 
 which the defendant was to execute. 
 Keisselbrack v. Livingston, 4 John. Ch. 
 144. The court said the statute of frauds 
 had no bearing on the case. In 1 Story 
 Eq. Jur. § 161, Mr. Justice Story says, 
 " A very strong inclination of opinion has 
 been repeatedly expressed by the English 
 courts, not to admit parol evidence to 
 establish a mistake in a written agreement, 
 and then to enforce it, as varied and estab- 
 lished by that evidence. On various occa- 
 sions such relief has, under such circum- 
 stances, been denied. But it is extremely 
 difiicult to perceive the principle upon 
 which such decisions can be supported 
 consistently with the acknowledged exer- 
 cise of jurisdiction in the court to reform 
 written contracts, and to decree relief 
 thereon. In America, Mr. Chancellor 
 Kent, after a most elaborate consideration 
 of the subject, has not hesitated to reject 
 the distinction as unfounded in justice, and 
 has decreed relief to a plaintiff, standing 
 in the precise predicament." See, also, in 
 support of this same doctrine, declared in 
 Gillespie u. Moon, Tilton v. Tilton, 9 N. 
 H. 391-393 ; Craig v. Kittridge, 23 N. H. 
 231 ; Smith </. Greeley, 14 N. 11. 378 ; 
 
 Langdon k. Keith, 9 Vt. 290; Cleaveland 
 V. Burton, 11 Vt. 138; Blodgett v. Hobart, 
 18 Vt. 414 ; Hunt i-. Eousmanier, 8 
 Wheat. 211 ; S. C. 1 Peters, 13; Wesley 
 V. Thomas, 6 Harr. & J. 24 ; Newsom v. 
 Bnfferlow, 1 Dcv. Eq. 379 ; Wiswall v. 
 Hall, 3 Paige, 313; De Peyster w. Has- 
 brouk, 1 Kernan, 591 ; Governeurw. Titus, 
 1 Edw. Ch. 480 ; Ehode Island v. Massa- 
 chusetts, 15 Peters, 233. This subject is 
 discussed with great ability, and many of 
 the cases commented on, by Mr. Justice 
 Wells in giving the opinion of the court in 
 Glass €/. Hulbert, 102 Mass. 24. In that 
 case it was held, that the statute of frauds 
 is a sufficient answer to a bill in equity to 
 reform an instrument in writing, if the 
 proposed reformation involves the '■specific 
 enforcement of an oral agreement within 
 the statute of frauds, or the term sought to 
 be added will so modify the instrument as 
 to make it operate to convey an interest or 
 secure a right which can only be conveyed 
 or secured through an instrument^ in 
 writing under the statute, and for which 
 no writing has ever existed, unless the de- 
 fendant is for some cause estopped to plead 
 the statute. The learned judge remarked : 
 "But rectification by making the contract 
 include obligations or subject matter, to 
 which its written terms will not apply, is 
 a direct enforcement of the oral agreement, 
 as much in conflict with the statute of 
 frauds as if there were no writing at all. 
 Moale V. Buchanan, 11 Gill & J. 314; 
 Osborn v. Phelps, 19 Conn. 63 ; Elder v. 
 Elder, 1 Pairf. 80." " The principle which 
 was maintained by Chancellor Kent, and 
 upon which the English authorities were 
 cited by him, in Gillespie v. Moon, was, 
 that relief in equity against the operation' 
 of a written instrument, on the ground 
 that by fraud or mistake it did not express 
 the true contract of the parties, might be 
 afforded to a plaintiff seeking a modifica- 
 tion of the contract, as well as to a de- 
 fendant resisting its enforcement. That 
 
CH. IV. § VIII.] TO VARY ^WRITTEN INSTRUMENTS. 
 
 245 
 
 although this affects the agi-eement, it does not vary it.(s) For 
 the words of the statute are negative, and not affirmative, that 
 every agreement in writing shall be binding.(<) 
 
 10. So where by the mistake of the solicitor the agreement 
 only required the purchaser to bear the expense of the convey- 
 ance, whereas the real agreement was, that he should also bear 
 the expense of making out the title, the master of the rolls ad- 
 mitted parol evidence of the real agreement and of the mis-, 
 take,(ii) and upon the strength of it, he gave the plaintiff, the 
 purchaser, his option to have his bill for a specific performance, 
 according to the terms of the written agreement, dismissed, or 
 to have the agreement performed in the way contended for by 
 the seller.(w) And where a party offered a lease upon terms 
 
 proposition must be considered as fully 
 ' established. 1 Story Eq. Jur. § 161. It 
 is quite another proposition, to enlarge the 
 subject matter of the contract, or to add a 
 new term to the writing, by parol evidence, 
 and enforce it. No such proposition was 
 presented by the case of Gillespie v. Moon, 
 and it does not sustain the right to such 
 relief against the statute of frauds." And 
 he concludes on this point by saying : 
 " Notwithstanding contrary decisions and 
 dicta, we are satisfied that, upon principle, 
 the conveyance of land cannot be decreed 
 in equity by reason merely of an oral 
 agreement therefor, against a party deny- 
 ing the alleged agreement and relying upon 
 the statute of frauds, in the absence of 
 evidence of change of situation or part 
 performance creating an estoppel against 
 the plea of the statute. This applies as 
 well to the enforcement of such an agree- 
 ment by way of rectifying a deed, as to a 
 direct suit for its specific performance. 
 We are satisfied, also, that this is the rule 
 to be derived from a great preponderance 
 of the authorities." See Phyfe v. Wardell, 
 2 Edw. Ch. 47 ; Pnrcell v. Minor, 4 
 Wallace, 513 ; Fisher v. Deibert, 54 Penn. 
 St. 460 ; Thomas v. McCormick, 9 Dana, 
 108; Eobeson v. Harwell, 6 Geo. 589; 
 Jarvis v. Palmer, 11 Paige, 650 ; Bailey v. 
 Bailey, 8 Humph. 230 ; Pry. Specif Perf. 
 (Am. ed.) 320, § 514 et seq. ; Smith v. 
 
 Mackin, 4 Lansing, 41, 45, 46. As to 
 giving relief upon proof of a mistake in 
 law, as in the legal effect of a description 
 in a deed, or in the use of technical 
 language, see Canedy v. Marcy, 13 Gray, 
 377, per Shaw C. J. ; Potter v. Sewall, 54 
 Maine, 142; Stedwell v. Anderson, 21 
 Conn. 139 ; Wheaton v. Wheaton, 9 Conn. 
 96 ; Western R. E. Corp. v. Babcock, 6 
 Met. 346 ; Pry. Specif. Perf. (Am. ed.) 
 312, § 508 ci seq.] 
 
 (s) Davis V. Symonds, 1 Cox, 405, 407 ; 
 see the cases cited infra, as to discharging 
 or varying a written agreement by parol . 
 Walker v. Walker, 2 Atk. 98 ; 6 Ves. 334', 
 n. ; Joynes v. Statham, 3 Atk. 388 ; Wool- 
 lam b. Hearn, 7 Ves. 211 ; Clarke w. Grant, 
 14 Ves. 519; 15 Ves. 523; Micklethwait 
 V. Nightingale, 12 Jur. 638. 
 
 (t) 1 Sch. & Lef. 39 ; 7 T. E. 3.50, n. 
 
 (fi) [See Gower v. Sterner, 2 Whart. 75 ; 
 Gillespie v. Moon, 2 John. Ch. 585 ; Christ 
 V. Diifenback, 1 Serg. & R. 464 ; Miller v. 
 Henderson, 10 Serg. & R. 292 ; Stevens 
 V. Cooper, 1 John. Ch. 429 ; Wesley v. 
 Thomas, 6 Harr. & J. 24 ; Jones v. Sluby, 
 5 Harr. & J. 372.] 
 
 (u) Ramsbottom v. Gosden, 1 Ves. & 
 Bea. 165; Plood ii. Finlay, 2 Bal. & Beat. 
 9 ; Ld. W. Gordon v. Marquis of Hertford, 
 2 Mad. 106 ; Garrard v. Giriing, 1 Wils. 
 C. C. 460 ; 2 Swan. 244. 
 
246 OF PAROL EVIDENCE [CH. IV. § VHI. 
 
 which were accepted, but omitted by mistake to add a premium 
 which he required, and there was some written evidence of the 
 mistake, a bill to enforce the written agreement was dismissed. (ic) 
 
 11. In the case of Martin v. Pycroft,(y) it was decided by the 
 lords justices overruling a decree of Parker V. C, that where 
 there is no fraud or mistake, a written agreement binds at law 
 and in equity according to its terms, although an additional pro- 
 vision was * verbally agreed to, and that the party insisting upon 
 the written agreement alone could recover at law, whilst the 
 other party if a defendant in equity could require the court to be 
 neutral, unless the plaintiff would consent to the performance of 
 the omitted term ; (i/^) ,yet if the party to be bound by the verbal 
 term files his bill and states the superadded term, and submits to 
 perform it, and the term is not in dispute, he is entitled to a spe- 
 cific performance of the agreement as added to by parol, (j/^) 
 This is an important distinction. 
 
 12. Where an estate was sold in lots, and at the end of some 
 of the lots only it was stated that the timber was to be taken at 
 a valuation, but there was a general condition that the timber 
 should be paid for ; the seller's bill for a specific performance, re- 
 quiring the purchaser of several lots to pay for all the timber, 
 was dismissed, and parol evidence of the declaration of the auc- 
 tioneer that the timber on all the lots was to be paid for, was re- 
 jected. (z) The purchaser then filed a bill against the seller for a 
 specific performance, according to his construction that he was 
 to pay for the timber on the lots only to which a stipulation to 
 that effect was added. The seller, as defendant, offered parol 
 evidence of the declaration by the auctioneer. Sir T. Plumer 
 agreed that fraud would let in the evidence as a defence. So in 
 case of mistake or surprise, making a specific performance, as in 
 
 {x] Wood V. Scarth, 2 K. & J. 33. creed of a contract for the conveyance of 
 
 (y) 2 De G., M. & G. 795 ; London & land, although the entire consideration is 
 Birmingham Ky. Co. o. Winter, Cra. & not named therein, if the plaintiff is will- 
 Phil. 57 ; [Vouillon v. Slates, 2 Jar. N. S. ing and ready to pay the whole considera- 
 847;] see where part perfonnance, Morti- tion orally agreed upon by the parties, and 
 mer v. Orchard, 1 Ves. jr. 243 ; Lyndsay v. he ha» been guilty of no misconduct. 
 ■Lynch, 2 Sch. & Lef. 1 .; Mundy v. Joliffe, Park v. Johnson, 4 Allen, 259. And in 
 9 Sim. 413 ; 5 My. & Cra. 167 rev. this case it was held that the bill need not 
 
 {)/') [See Fry Specif. Perf. (2d Am. ed.) set forth that part of the consideration 
 
 304, § 489 c« se?.] ^ which was omitted in the written contract.] 
 
 (y^) [Specific performance may be de- (s) Higginson v. Clowes, 15 Ves. 516. 
 
 [161] 
 
CH. IV. § VIII.] TO VAEY WRITTEN INSTRUMENTS. 247 
 
 the case of fraud, unjust.(2r^) In sales by auction, the real object, 
 he said, of introducing declarations by auctioneers or other per- 
 sons, is to explain, alter, or contradict the written agreement, in 
 effect to substitute another contract ; and, independent of author 
 ity, he should be much disposed to reject such declarations, 
 whether offered by a plaintiff seeking a performance, or by a de- 
 fendant to get rid of the contract, a distinction difficult to adopt, 
 where the evidence is to show that the writing purporting to be 
 a contract is not the contract. That does not depend upon the 
 principle on which a defendant is permitted to show fraud, mis- 
 take, or surprise, collateral to and independent of the written 
 contract, the object in the other case being to get rid of the con- 
 tract by explaining it away. But the declarations in this case 
 being offered where the parties had contracted in writing upon a 
 subject distinctly adverted to in their written contract, which 
 made a provision for it (whether explicit and satisfactory was 
 not material), the evidence of these declarations, he said, must 
 be rejected, because there was no fraud, mistake or surprise, and 
 the evidence was offered to contradict, explain, or vary the writ- 
 ten contract.(fl) 
 
 {z^) [It is a good defence to a bill for used, the agreement or instrument itself 
 specific performance of an agreement to shall be the only criterion of the intention 
 conrey laud, that the defendant was led of the parties ; and this principle excludes 
 into a mistake, without any gross laches parol evidence contradictory to the writing 
 of his own, by an uncertainty or obscurity itself, even although such evidence might 
 in the descriptive part of the agreement, clearly show, that the real intention of the 
 so that the agreement applied to a different parties was at variance with the particular 
 subject from that which he understood at expressions used in the written agreement, 
 the time, or that the bargain was hard, un- See Chitty Contr. (10th Am. ed.) 103; 
 equal, or oppressive, and would operate in Hitchin v. Groom, 5 C. B. 515 ; Countess 
 a manner different from that which was in of Rutland's case, 6 Co. 26, Kes. 1 ; Meres 
 contemplatioii of the parties when it was «. Ansell, 3 Wilson, 275 ; Edwards v. Rich- 
 executed. Western Railroad Corporation ards, 1 Wright, 597 ; Randolph v. Perry, 
 V. Babcock, 6 Met. 346; Ball v. Storie, 1 2 Porter, 376 ; Odam v. Beard, 1 Blackf. 
 S. & S. 210 ; Fry Specif. Perf. (2d Am. ed.) 190 ; M'Mahsn v. Spangler, 4 Rand. 51 ; 
 299, 300, 301 ; Eastman v. Plumer, 46 Erwin v. Saunders, 1 Cowen, 250 ; Aus- 
 N. H. 464, 479 ; Lee v. Kirby, 104 Mass. tin v. Sawyer, 9 Cowen, 39 ; Wakefield v. 
 420,427.] Stedman, 12 Pick. 562; Strohecker o. 
 
 (a) Clowes v. Higginson, 1 Ves. & Bea. Farmers' Bank, 6 Barr, 41 ; Benjamin v. 
 
 524 ; consider Croome v. Lediard, 2 My. McConnell, 4 Gilm. 536 ; Hair v. La 
 
 & Ke. 251 ; Manser v. Back, 6 Hare, 443 ; Brouse, 10 Ala, 548 ; Hakes v. Hotchkiss, 
 
 Browne v. Sligo, 10 Ir. Ch. Rep. 1; 23 Vt. 231. But though parties and 
 
 Swaisland v. Dearsley, 29 Beav, 430. privies, as between themselves, are estopped 
 
 [Where there is no ambiguity in the terms from contradicting a written instrument. 
 
248 OF PAEOL EVIDENCE OF MISTAKE, ETC. [CH.IV. § VIII. 
 
 13. This judgment does, not seem to be warranted by the 
 principles of the court. It is manifest that the learned judge 
 was disposed to overrule the settled distinction. It is not neces- 
 sary, in order to render the evidence admissible, that its object 
 should be to show * fraud, mistake, or surprise, collateral to or in- 
 dependent of the written contract, although that usually is its ten- 
 dency; but the evidence is admissible where, by way of defence, 
 the object is to get rid of the contract by showing that it is not 
 the contract really entered into by the parties, although where, 
 even as a defence, the evidence is used to show that the terms of 
 the contract are not the real ones, the evidence, when admitted, 
 must be very powerful to induce the court to believe that the 
 terms expressed are not the real ones. In Ramsbottom v. Gos- 
 den, as the contract was silent as to the expense of making out 
 the title, that of course would have fallen on the vendor; but that 
 was a mistake, and contrary to the real contract, and parol evi- 
 dence really to contradict the written agreement on this head 
 was admitted as a defence. 
 
 14. In a case where lands, which upon admeasurement did not 
 contain thirty-six acres, were described in a particular to contain 
 forly-one acres by estimation, were the same more or less, and 
 the purchaser set up as a defence parol declarations of the auc- 
 tioneer that he sold it for forty-one acres, and if it was less, an 
 abatement should be made. Sir W. Grant admitted the evidence 
 and dismissed the bill, because, after such a declaration made by 
 the auctioneer, it was fraudulent in the seller to insist upon the 
 execution of the contract, not giving the defendant the benefit 
 
 by parol proof, yet the rule does not apply Ired. 26 ; Venable i'. Thompson, 11 Ala. 
 
 to strangers who have an interest in show- 147. Neither does the rule apply where 
 
 ing the true state of the case. New Ber- the parties are inquiring into the title to 
 
 lin V. Norwich, 10 John. 229 ; Taylor v. their property, and the written instrument 
 
 Baldwin, 10 Barb. 582 ; Hughes v. San- is employed only incidentally as evidence, 
 
 dal 25 Texas, 162 ; Forbush v. Goodwin, Stewart v. State, 2 Harr. & G. 1 14. Where 
 
 25 N. H. 425 ; Edgerly v. Emerson, 23 one of the parties to a written contract, 
 
 N. H. 555 ; Low V. Blodgett, 21 N. H. without objection from the other, intro- 
 
 121 • Woodman v. Eastman, 10 N. H. duces parol evidence to add to such con- 
 
 359 • Kske ». McGregory, 34 N. H. 419; tract, with reference to a particular point. 
 
 Van Ernan v. Stanchfield, 10 Minn. 255. he cannot afterwards object to the intro- 
 
 Nor does the rule apply when the contro- duction of similar evidence by the other 
 
 versy is between a party and a stranger to party to the same point. Shaw v. Stone, 
 
 the instrument. Strader a. Lambeth, 7 1 Gush. 228.] ' 
 
 B Mon. 589; Eeynolds v. Magness, 2 
 
 [162] 
 
CH. IV. § Vm.] OF PAROL EVIDENCE OF MISTAKE, ETC. 249 
 
 of that declaration. (6) And yet the subject was distinctly ad- 
 verted to in the written contract, and indeed the provision was 
 free from ambiguity, and the parol evidence contradicted it; 
 whereas in Clowes v. Higginson, there was an ambiguity — two 
 statements, which might be considered at variance with each 
 other — which the parol evidence would have explained. The 
 evidence, it is submitted, in the latter case, was admissible in 
 equity as a defence, simply on the ground that the plaintiff, who 
 ought to come into equity with clean hands, sought to commit a 
 fraud in evading to pay for the timber, although the auctioneer 
 declared that it was to be paid for. 
 
 15. Yet in a later case,(c) where there wals a contract by each 
 of two persons to buy an estate of the other, both estates to be 
 valued by the same person, and both purchases to be completed 
 on the same day ; it was decided that the contracts were dis- * 
 tinct, although contained in the same paper, and notwithstanding 
 the difference between having to pay for one estate with the 
 price of another, and having to retain your own estate and yet 
 to pay for another; and it was held by Sir John Leach, that no 
 evidence aliunde could be received to give a construction to the 
 agreement contrary to the plain import of those expressions, and 
 he therefore rejected evidence tendered by the defendant to sttow 
 that the real intention was to exchange the estates ; and Lord 
 Brougham, upon appeal, without hearing the respondent's coun- 
 sel, aflBrmed the decree. Parol evidence of matter collateral to 
 * the agreement might, he said, be received ; but no evidence of 
 matter dehors was admissible to alter the terms and substance of 
 the contract. In the present case, the purpose for which the 
 parol evidence was tendered on the part of the defendant was, 
 not to enforce a collateral stipulation, but to show that the trans- 
 action was conducted on the basis of an exchange, a circum- 
 stance which, if true, was totally at variance, with the language 
 and plain import of the instrument. Nothing could be more 
 dangerous than to admit such evidence ; for, if the agreement 
 between the parties were in fact conducted upon the basis of an 
 exchange, why was the instrument so drawn as to suppress the 
 real nature of the transaction ? 
 
 (6) Winch v. Winchester, 1 Ves. & Bea. (c) Croome v. Lediard, 2 My. & Ke. 
 375. 251. 
 
 [163] 
 
250 OF PAROL VARIATIONS AT LAW. [CH. IV. § VIII. 
 
 16. The decision in the above case was probably well founded. 
 The evidence, it is submitted, was inadmissible, not because it 
 was not to enforce a collateral stipulation, but because it did not 
 prove that by fraud, mistake, or surprise, the agreement did not 
 state the alleged real contract, viz., for an exchange between the 
 parties. The defendant was an attorney, and fraud was not 
 alleged, nor indeed was mistake or surprise, for he had himself 
 prepared the agreement, and he preferred making it a mutual 
 contract for sale and purchase, instead of an exchange, and of 
 course he could not be permitted to alter its character by parol 
 evidence of the mode in which the negotiation was conducted, 
 and of the views of the parties, in order to avoid the conse- 
 quences which attached to the nature of the contract vyhich the 
 parties, with their eyes open, having regard to other objects, had 
 thought it proper to adopt. 
 
 17. Where a written agreement is subsequently varied in part 
 by parol, if it do not amount to a waiver of the contract, but a 
 variation by parol which has not been acted upon, and which 
 was made without consideration, it cannot be made use of as a 
 defence, (c?) 
 
 18. Where after the written agreement for sale was signed a 
 variation was made and reduced into writing, but not signed, 
 the purchaser having filed a bill for a specific performance, either 
 with or without the variation, the court put the seller to his elec- 
 tion, and he having declined to elect, decreed a performance of 
 the original agreement without the variation. (e) 
 
 19. According to Omerod v. Hardman, if parties enter into an 
 agreement which is correctly reduced into writing, and at the 
 same time add a term by parol, equity cannot look out of the 
 agreement, although the person insisting upon the parol agree- 
 ment is a defendant, and sets it up as a bar to the aid of the 
 court in favor of the plaintiff; (/) but clearly this cannot be 
 deemed a general -rule, although it must at all times be difficult 
 to rely, even as a defence, upon a term added by parol to a reg- 
 ular correct contract. 
 
 {d) Price v. Dyer, MS. 17 Ves. 356 ; son v. Cooper, 25 Maine, 450, cited post, 
 
 Robinson v. Page, 3 Rus. 114; see Don- 165, n. (m^).] 
 
 aid y. Scott, 10 Ir. Ch. Rep. 496; [see (e) Robinson «. Page, 3 Rus. 114. 
 Adams v. Nichols, 19 Pick. 275 ; Richard- (/) 5 Ves. 722. 
 
CH. IV. § Vin.] OF PAROL VARIATIONS AT LAW. 251 
 
 *20. Lord Hardwicke is reported (§■) to have said, that a plain- 
 tiff seeking a specific perfornnance might enter into parol evi- 
 dence to show that the defendant was to pay the rent clear of 
 taxes, no mention being made of taxes in the agreement ; be- 
 cause it was an agreement executory only, and as, in leases, 
 there were always covenants relating to taxes, the master would 
 inquire what the agreement was as to taxes, and therefore the 
 proof would not be a variation of the agreement. And this 
 extra-judicial opinion appears to have been approved of by two 
 other judges,(A) one of whom (i) laid it down, that parol evi- 
 dence was admissible to prove collateral matters, concerning 
 which nothing was said in the agreement, as who was to put the 
 house in repair, or the like. But notwithstanding these dicta, it 
 is clearly settled that parol evidence of even such collateral mat- 
 ters, which are of the essence of the agreement, is inadmissible 
 both at law and in equity. Therefore, it cannot be shown at 
 law by parol that the tenant agreed to pay the land tax, where 
 the written agreement merely provides for payment of rent ; nor 
 can a specific performance be enforced with such a term added 
 by parol.(y) 
 
 21. As a term agreed upon by parol cannot be added to a 
 written agreement, by a parity of reason a written agreement 
 cannot be varied by parol.(A;) It cannot, for example, be shown 
 by parol that the parties verbally agreed to alter the period for 
 the commencement of a lease.(Z) 
 
 22. In Goss w. Lord Nugent,(?n) where the contract stipulated 
 for a good title to several lots, but the purchaser, after the con- 
 tract, and with notice of a defect in the title to one lot, waived 
 the objection, and entered into possession, but afterwards resisted 
 the contract, it was held that the seller could not maintain an 
 action for the purchase money on account of the statute. The 
 
 (g) 3 Atk. 389, 390 ; but see 4 Bro. C. inf., as to the discharge of a parol agree- 
 C. 518; 6 Ves. 335, n. ; 1 Sch. & Lef. ment. 
 38. (A;) 7 Ves. 133 ; Price v. Dyer, MS. 17 
 
 (h) 2 Black. 1250; 7 Ves. 221. Ves. 356. 
 
 (i) Mr. J. Blackstone. (I) Post, pi. 24. 
 
 Ij) Rich V. Jackson, 4 Bro. C. C. 514; (m) 5 Bar. & Ad. 58; 2 Nev. & Man. 
 6 Ves. 334, n. ; Jordan v. Sawkius, 3 Bro. 28 ; Stead v. Dawber, 10 Ad. & El. 57 ; 
 C. C. 388; 1 Ves. jr. 402 ; O'Connor v. Marshall u. Lynn, 6 M. & W. 109 ; cases 
 Spaight, 1 Sch. & Lef. 305 ; the cases on the seventeenth section to which the 
 
 same law applies, sup. pi. 4. 
 [164] 
 
252 OF PAROL VARIATIONS AT LAW. [CH. IV. § VIII. 
 
 court thought that the object of the statute was to exclude all 
 oral evidence as to contracts for the sale of lands, and that any 
 contract which was sought to be enforced must be proved by 
 writing only. In the present case the written contract was not 
 that which was sought to be enforced ; it was a new contract 
 which the parties had entered into, and that new contract was 
 to be proved partly by the former written agreement, and partly 
 by the new verbal agreement; the present contract, therefore, 
 was not a contract entirely in writing; and as to the title being' 
 collateral to the land, the title appeared to the court to be a most 
 essential part of the contract. But the court added that their 
 * opinion was formed upon the general meaning of the statute, 
 that the contract in question was not wholly one in writing.(m^) 
 
 23. The court also observed, that whether the seller might not 
 have relief in a court of equity they gave no opinion. Now, 
 although the general rule of law upon the statute is the same at 
 law as in equity, yet a purchaser is at liberty to accept a defec- 
 tive title if he think proper ; and if, as in the above case, he do 
 so, and thereupon is let into possession, equity would bind him 
 by his act, and compel him to complete the purchase. 
 
 24. And in a later case at law, it was decided that the time 
 
 (ml) [It is said to be clear that where although the original contract was required 
 the contract is one which the statute of by the statute of frauds to he, and was, in 
 frauds requires to be in writing, and, after writing. Stearns v. Hall, 9 Cush. 31 ; 
 it has been reduced into writing, new terms Cummings v. Arnold, 3 Met. 486. So in 
 are agreed upon, such new terms must New Hampshire. Buel u. Miller, 4 N. H. 
 likewise be reduced into writing, other- 196. The decisions in Maine and Mary- 
 wise they are not receivable in evidence, land have a bearing in the same direction. 
 Chitty Contr. (10th Am. ed.) 116; Moore Richardson v. Cooper, 25 Maine, 450; 
 V. Campbell, 10 Exch. 323 ; Goss v. Lord Blood u. Hardy, 15 Maine, 61 ; Franklin 
 Nugent, 5 B. & Ad. 65; Ladd o. King, 1 v. Long, 7 Gill &. J. 407; Watkins <;. 
 R. I. 224; Espy v. Anderson, 2 Harris, Hodges, 6 Harr. & J. 38. A contract in 
 308 ; Dana v. Hancock, 30 Vt. 116; No- writing will not be deemed to have been 
 ble V. Ward, L. R. 1 Exch. 117 ; affirmed, waived by a mere parol executory agree- 
 L. R. 2 Exch. 135 ; Emmet v. Dewhurst, ment, entered into by the parties, to vary 
 3 Mac. & G. 596, 597 ; Fry Specif. Perf. or modify its terms. Adams v. Nichols, 
 (2d Am. ed.) 319, § 512 et seq.; Chitty 19 Pick. 275. So it was held in Richard- 
 Con tr. (10th Am. ed.) 116, & notes. But son v. Cooper, 25 Maine, 450, that a parol 
 the law is settled otherwise in Massachu- agreement to change =•■ written contract, 
 setts, where it is held that parol evidence constitutes no defence to the latter, while 
 may be admitted to prove a subsequent it remains executory, unless its execution 
 oral agreement enlarging the time of per- has been prevented by the act of the party 
 formanee of a simple contract, or varying attempting to enforce the written con- 
 its terms, or to show a waiver or discharge, tract.] 
 
 [165] 
 
CH. IV. § VIII.] OF PABdL VARIATIONS AT LAW. 253 
 
 could not be enlarged by parol.(re) The simple question arose, 
 Can the day for the completion of the purchase of an interest in 
 land inserted in a written contract be waived by a parol agree- 
 ment, and another day be substituted in its place, so as to bind 
 the parties ? And it was held that it could not. But where an 
 agreement for a lease was without a date, and the landlord 
 agreed by parol that the rent should not commence till certain 
 repairs were done, the parol evidence was admitted, and the 
 agreement was held not to be operative before the period agreed 
 upon.(o) 
 
 25. These decisions will drive many cases into equity, where, 
 as we shall hereafter see, time may be enlarged or waived by the 
 acts of the parties, or even the nature of the title may induce 
 the court to consider it not of the essence of the contract.(jo) 
 Where the time is varied by the agreement of the parties, courts 
 of equity, who, according to their general rule, consider them- 
 selves as having full power to open the time appointed, would of 
 course adopt that which the parties themselves had agreed upon, 
 although only by parol. And they might fairly consider it, as 
 heretofore it was considered even at law, as not varying the sub- 
 stance of the contract itself, which is still to be executed, although 
 at'the enlarged time.(p^) 
 
 (n) Sto-B-ell V. Robinson, 3 Bing. N. C. 8 Met. 97 ; Chitty Contr. (10th Am. ed.) 
 
 928; see 2 Nev. & Man. 35; Home u. 118, &, note (x).] 
 
 Wingfield, 3 Sco. N. C. 340; Parkin v. (o) Davis v. Jones, 17 C. B. 625. 
 
 Thorold, 2 Sim. N. S. 1. [Where by the (p) Chap. 6. 
 
 terras of a written contract no time or (p^) [In 1 Greenl. Ev. § 304, Mr. Green- 
 place is fixed for the performance of the leaf says : " It is also well settled that in 
 whole or of any particular part, the time case of a simple contract in writing, oral 
 and place will in general depend upon the evidence is admissible to show that by a 
 construction which the law gives to the subsequent agreement the time of per- 
 contract, upon a consideration of the char- formance was enlarged, or the place of 
 acter of its stipulations, and under such performance changed, the contract having 
 circumstances, parol evidence of a spe- been performed according to the enla'rged 
 cific time or place of performance agreed time, or at the substituted place, or the 
 upon when the contract was made is not performance having been prevented by the 
 . admissible, either to attach a term to the act of the other party.;' Watkins u. 
 written contract, or to affect the legal Hodges, 6 Harr. & J. 28 ; Clement u. 
 construction of it. Cocker v. Franklin Durgin, 5 Greenl. 9 ; Kobinson v. Batch- 
 Hemp & riax Manuf. Co. 3 Sumner, 530; elder, 4 N. H. 45, 46 ; Franchot v. Leach, 
 LaEargeu. Rickert, 5 Wend. 187;Thomp- 5 Coweu, 506; Wyman o. Winslow, 2 
 son w. Ketchum, 8 John. 1 90 ; Atwood w. Fairf. 39S ; Low v. Treadwell, 3 Fairf. 
 Cobb, 16 Pick. 231 ; Warren v. Wheeler, 444; Medoraak Bank v. Curtis, 24 Maine, 
 
254 OF PAROL VARIATIONS AT LAW. [CH. IV. § VIII. 
 
 26. Where the parol variation has been in part performed, 
 equity, acting upon its general principles, will decree a specific 
 performance of the agreement as varied by parol.(5') 
 
 27. The result of the authorities as to a parol variation appears 
 to be, 'Ist, That evidence of it is totally inadmissible at law. 
 2dly, That in equity the most unequivocal proof of it will be ex- 
 pected. 3dly, That if it be proved to the satisfaction of the court, 
 yet it cannot be used as a de/ence to a bill demanding a specific 
 performance of the original contract alone, or as a ground for 
 granting a specific performance of the original contract, with the 
 variation introduced by parol, unless there has been such a part 
 performance of the new ' parol agreement as would enable the 
 court to grant its aid in the case of an original independent agree- 
 ment, and then, in the view of equity, it is tantamount to a writ- 
 ten agreement,(r) and effect will be given to it, either in favor of 
 a plaintiff or a defendant. But we must bear in mind that some 
 variations, not admitted at law, for example, the title and time, 
 equity has always, exercising its peculiar jurisdiction, deemed to 
 be subjects which the parties might waive by their acts. 
 
 28. Even where part of the subject matter of the agreement 
 might have been valid by sale and delivery, and an agreement in 
 writing was not requisite, yet if the agreement be entire it must 
 so continue, and it cannot be separated or altered otherwise than 
 by writing.(s) 
 
 29. These are the rules which guided the several courts before 
 the late act,{t) which gave to courts of law equitable jurisdiction 
 by way of mandamus, and also allowed equitable defences at 
 law where justice at, law could be done between the parties. 
 
 36 ; Avery v. Kellogg, 1 1 Conn. 574, 575 ; 766 ; McGrann v. North Lebanon E. K. Co. 
 Farnham v. Koss, 2 Hall (N. Y.), 171, per 29 Penn. St. 82; Stryker v. Vanderbilt, 1 
 Oakley J. ; Hasbroucki;. Tappan, 15 John. Dutch. (N. J.) 482; Miles v. Koberts, 34 
 200 ; Dubois v. Del. & Hud. Canal Co. 4 N. H. 245. . Specific peribrmance of a con- 
 Wend. 285 ; Jewell v. Schroeppel, 4 Cow. tract will not be enforced if there was a 
 564; Marshall v. Baker, 19 Maine, 402. subsequent agreement by parol to waive it 
 So in the case of a sealed contract, the and substitute a new contract for it. Ey- 
 time of performance fixed by it may be no v. Darby, 5 C. E. Green (N. J.), 231.] 
 enlarged by a writing not under seal or (5) Anon. 5 Vin. 522, pi. 38 ; Legal v. 
 by parol, and the remainder of the con- Miller, 2 Ves. 299 ; Pitcairne v. Ogbourne, 
 tract will be governed by the terms of the 2 Ves. 375 ; Price v. Dyer, 17 Ves. 356. 
 sealed instrument. Stone v. Sprague, 20 (r) Van v. Corpe, 3 My. & Ke. 277. 
 Barb. 509 ; Clark v. Dales, 20 Barb. 42 ; (s) Harvey v. Graham, 5 Ad. & El. 61. 
 Barker v. Troy & Eut. E. E. Co. 27 Vt. {t) 17 Vict. c. 125, ss. 68-77, ss. 83-86. 
 
 [166] 
 
CH. IV. § IX.] 
 
 OF PAROL EVIDENCE. 
 
 255 
 
 Courts of law have found it difficult to act upon these powers 
 with the limited machinery which they possess for the carrying 
 out an equitable jurisdiction ; (m) they have hitherto confined the 
 exercise of them within very narrow limits.(a;) An attempt to 
 give to courts of law equity jurisdiction generally, was happily 
 defeated, after full consideration in a select committee of the 
 House of Lords, and no attempt was made by Lord Campbell 
 C, who had charge of the bill, to reverse the decision of the 
 committee in the House itself. 
 
 SECTION IX. 
 
 OF THE ADMISSIBILITY OF PAEOL EVIDENCE TO ANNUL WRITTEN INSTRU- 
 MENTS, AND TO EXPLAIN AMBIGUITIES. 
 
 1. Parol waiver. 
 
 2. Terms of statute. 
 
 3. Abandonment a. defense in equity; at 
 
 law, semble. 
 
 4. Waiver of parol agreement cannot be 
 
 proved. 
 
 5. Sorts of ambiguities. 
 
 6. Latent ambiguity cleared up by parol 
 
 evidence. 
 
 8. Patent ambiguity not. — General words 
 
 not restrained by parol. 
 
 9. Contra in equity upon mistake. 
 
 10. Situation of parties, &c., looked at where 
 
 there is ambiguity. 
 
 11. Ancient statute. — Contemporaneous us- 
 
 age. 
 
 12. Whether price can be looked at where 
 
 there is ambiguity. 
 
 1. The rule of law is, nihil tarn conveniens est naturali cequitati, 
 unumquodque dissolvi eo ligamine quo ligatum est : and therefore 
 a* covenant under seal not broken cannot be discharged by parol 
 agreement.(a) And in general, as we have seen, an agreement 
 in writing cannot be controlled by averment of the parties, as it 
 would be dangerous to admit such nude averments against mat- 
 ter in writing.(6) This was an imperative rule, previously to the 
 statute of frauds. That act provides that no action shall be 
 brought upon any agreement made upon any contract or sale of 
 lands, or any interest in or concerning the same, unless the agree- 
 ment is in writing and signed by the party to be charged. The 
 
 (u) Wodehouse u. Farebrother, 1 Jur. Nashw. Armstrong, 7 Jur.N. S. 1060. [See 
 
 N. S. 998, inf. eh. 5, s. 3 ; ch. 10^ s. 3. ante, 158, note (/).] 
 
 (x) Teede w. Johnson, 11 Ex. 840. (6) Countess of Rutland's case, 5 Co. 
 
 (a) Kaye u. Waghorn, 1 Taunt. 428; 25 J; Blemerhasset w. Pierson, 3 Lev. 234. 
 
 [167] 
 
256 PAKOL EVIDENCE OF ABANDONMENT. [CH. IV. § IX. 
 
 statute excludes parol agreements as to lands, and makes written 
 agreements primd facie valid. No action is to be brought upon 
 any agreement made upon any contract or sale of lands, &c., 
 unless in writing. Now a waiver is an agreement made upon a 
 contraot or sale of lands, viz., an agreement to relinquish the 
 benefit of such an agreement ; and although the statute only 
 prohibits the bringing any action unless the agreement is in writ- 
 ing, yet that might well be construed to prevent the setting up a 
 parol agreement as a defense to an action upon a valid written 
 agreement. The agreement must be in writing or no action can 
 be maintained upon it. Does not this, by a necessary implica- 
 tion, exclude a parol agreement which is to waive a written one? 
 Is not the like mischief to be guarded against in each case ? 
 Lord Hardwicke observed that an agreement to waive a purchase 
 contract is as much an agreement concerning lands as the orig- 
 inal contract.(c) Yet a parol waiver, like a written agreement 
 not under seal, is a simple contract; and a parol waiver not be- 
 ing a contract for sale, may be said not to fall within the provis- 
 ion of the statute. And it was decided in an early case, that an 
 agreement in writing may be discharged by parol ; (d) and that 
 rule has been followed in later cases, but the abandonment must 
 amount to a total dissolution of the contract, and there must be 
 very clear proof.(e) 
 
 (c) 2 Eq. Ca. Ab. 33. recorded, operating by way of defeasance, 
 {d) Gorman v. Salisbury, 1 Ver. 240. and afterwards the parties, by mutual stip- 
 I could not discover any trace of this cause ulations, agree that the defeasance shall 
 in the registrar's book. [See 1 Sloiy Eq. be surrendered and cancelled, with intent 
 Jur. § 770; Wood v. Perry, 1 Barb. 114.] to rest the estate unconditionally in the 
 (e) Buckbouse v. Crosby, 2 Eq. Ca. Ab. grantee by force of the first deed, by such 
 32, pi. 44 ; Garrett v. Ld. Besborough 2 surrender and cancellation the estate he- 
 ir. Eq. U. 180; Bell u. Howard, 9 Mod. comes absolute in the mortgagee, provided 
 302; Earl of Angleseav. Annesloy, 4 Bro. the transaction has been conducted with 
 P. C. 421 ; Davis v. Symonds, 1 Cox, 402 ; fairness, and no intervening rights of third 
 Kobinson v. Page, 3 Rus. 119 ; Carolan parties have accrued ; Trull w. Skinner, 17 
 V. Brabazon, 3 Jo. & L. 201 ; 1 Ves. jr. Pick. 213; Harrison v. Phillips Academy, 
 404 ; 4 Bro. C. C. 519 ; 6 Ves. 337, n. ; 9 12 Mass. 4.56 ; Rice v. Rice, 4 Pick. 349 ; 
 Ves. 250; 3 Wooddes, 428; s. 4, Rob. Farrar v. Farrar, 4 N. H. 191; Bullen i: 
 Stat.ofFrauds, 80; Ingea. Lippingwell, 2 Runnels, 2 N. H. 260; Woodbury J. in 
 Dick. 469; 17 Ves. 356; see the llth ed. Chesley v. Erost, 1 N. H. 147 ; Nason .... 
 of this work, 171 ; [Stevens v. Cooper, 1 Grant, 21 Maine, 160. But it is clear 
 John. Ch. 429, 430. Where an absolute from the above cases and others, that the 
 deed of land is given, accompanied by mere cancelkitioijpf the deed, by the gran- 
 a simultaneous instrument, which is not tee without reemmeP&oes not divert his 
 
CH. IV. § IX.J PAROL EVIDENCE OF ABANDONMENT. 257 
 
 2. In a case at law (/) the court observed, that the statute 
 does not say in distinct terms that all contracts concerning the 
 sale of lands shall be in writing ; all that it enacts is, that no 
 action shall be brought unless they are in writing, and as there 
 is no clause in the act which requires the dissolution of such 
 contracts to be in writing, it should * rather seem that a written 
 contract concerning the sale of lands may still be waived and 
 abandoned by a new agreement not in writing, so as to prevent 
 either party from recovering on the contract which was in writing. 
 It was not, however, necessary, the court added, to give an opin- 
 ion upon that point. 
 
 3. The result is, that an abandonment of the whole agreement 
 clearly made out by parol — for the court will look at the evi- 
 dence with great jealousy — is a good defence in equity,(g") but 
 it was doubtful whether such a defence was available at law ; 
 perhaps the better opinion was that it was inadmissible at law ; 
 but now, as we have seen, equitable defences may be made 
 available at "law. One of several purchasers cannot abandon 
 the contract for purchase so as to defeat the right of his co- 
 purchasers.(A) And suggestions for obviating difficulties in the 
 way of completing the contract will not, of course, operate as 
 an abandonment of the agreement, and the substitution of a 
 new one.(i) If the contract is under seal, there cannot be ac- 
 cord and satisfaction before breach. (A;) Where there has been 
 a breach of a special contract, accord and satisfaction under a 
 parol agreement is valid at law.(/) 
 
 4. Where the original agreement was' a parol agreement, and 
 the question was, whether, being abandoned, parol evidence 
 
 title or revest it in the grantor. Hatch v. duct amounting to abandonment ; Clifford 
 Hatch, 9 Mass. 311 ; Dando v. Tremper, v. Kelly, 7 Ir. Ch. Rep. 333 ; Chubb v. 
 2 John. 87 ; Lewis v. Payn, 8 Cowen, 75 ; Fuller, 4 Jur. N. S. 153 ; Cartan v. Bury, 
 Botsford V. Morehouse, i Conn. 550 ; 10 Ir. Ch. Rep. 400 ; Homan v. Skelton, 
 Gilbert v. Bulkley, 5 Conn. 262. An 11 Ir. Ch.Rep. 97 ; [Boston & Maine Rail- 
 agreement to cancel a deed without an road v. Bartlett, 10 Gray, 384, 386.] 
 actual cancelling^ has no effect as an (A) Hood v. Pimm, 1 C. P. Coo. t. Cott. 
 estoppel or a reconTeyance ; Farrar v. 280. 
 
 Farrar, 4 N. H. 191 :" Morse v. Child, 6 N. (i) Monro v. Taylor, 8 Hare, 61 ; 3 Mac. 
 
 H.521.] flr^/^^^i &G.713. 
 
 (/) Goss V. Ld. Nugent, 5 B. & Ad. 58 ; (Jc) Mayor of Berwick-on-Tweed v. Os- 
 
 2 Nev. & Man. 34 ; Stead v. Dawber, 10 wald, IE. & B. 295. 
 
 Ad. & El. 57, a case upon the 17th s. (l) Smith v. Trowsdale, 3 E. & B. 83. 
 
 {g) Chambers v. Betty, Beat. 488, con-. 
 
 VOL. I. IT [168] 
 
258 PAROL EVIDENCE TO EXPLAIN AMBIGUITIES. [CH. IV. § IX. 
 
 could be given of it; it was held, that the existence and the 
 terms of the agreement must be proved before it could be proved 
 to be abandoned, and upon that it was sufficient to say, that 
 being in writing, the instrument itself must be produced, and 
 parol evidence of it waslnadmissible.(m) 
 
 5. Ambiguities of words are either ambiguitas patens or la- 
 tens.(n) Patens is that which appears to be ambiguous upon 
 the instrufnent ; laiens is that which seems without ambiguity 
 upon the instrument, but there is some collateral matter out of 
 the deed that breeds the ambiguity.(l) 
 
 * 6. A latent ambiguity may be assisted by parol evidence, 
 because the ambiguity being raised by parol, may fairly be dis- 
 solved by the same means, according to the general rule of 
 law.(o) So on the same principle, parol evidence is always re- 
 
 (m) 2 Esp. 659; 1 Bos. & Pul. 306; Fairf. 164; Eveleth v. Wilson, 15 Maine, 
 
 Adams v. Fairbain, 2 Star. 277 ; Cocking 109 ; Vernon v. Henry, 3 Watts, 385 ; 
 
 I). Ward, 1 C. B. 858, as to a parol agree- Brainard v. Cowdry, 16 Conn. 1 ; Mead v. 
 
 ment executed, except the payment of the Stedger, 5 Porter, 498 ; Pritchard v. Hicks, 
 
 price. , 1 Paige, 270. Where as respects all or any 
 
 (n) Bac. Max. p. 82 ; Reg. 23. [See part of the subject matter of the contract, 
 
 Peisch u. Dickson, 1 Mason, 9 ; Dupreeu. or the identity of places, documents, or 
 
 McDonald, 4 Desaus. 21 1 ; Spencer C. J. persons referred to, there is a, latent am. 
 
 in Ely v. Adams, 19 John. 317 ; Eailroad bignity ; that is, where the words of the 
 
 Co. V. Ormsby, 7 Dana, 277 ; 1 Greenl. agreement, although certain in point of 
 
 Ev. §§ 288, 297 et seq.J grammatical construction and apparently 
 
 (o) 2 Eo. Ab. 676, pi. 11 ; Cheney's definite, are rendered of doubtful appli- 
 
 case, 5 Rep. 68 ; Altham's case, 8 Rep. cation by circumstances which appear 
 
 155 a; Harding v. Suffolk, 1 Cha. R. 74 ; aliunde,0T, according to a modern decision 
 
 Jones V. Newman, 1 Black. 63 ; 3 Wils. {Gord v. Needs, 2 M. & W. 129), upon the 
 
 276 ; 2 Atk. 239, 240, 373; 1 Bro. C. C. face of the agreement itself — parol evi- 
 
 341 ; Jac. 463. [See Wooster v. Butler, 13 dence of the intention of the parties at the 
 
 Conn. 309 ; Storeru. Freeman, 6 Mass. 440, date of the agreement is admissible, in 
 
 441 ; Stone v. Clark, 1 Met. 381, 382, per order to identify the estate, document, 
 
 Wilde J. ; Hurley w. Brown, 98 Mass. 545 ; plan, or other thing, or person intended; 2 
 
 Webster v. Atkinson, 4 N. H. 23 ; Mann v. Dart V. & P. (4th Eng. ed.) 882 ; Hardy 
 
 Mann, 1 John. Ch. 231, 234; Cole v. v. Matthews, 38 Missou. 121 ; Webster w. 
 
 Wendell, 8 John. 92 ; Brown u. Haven, 3 Blount, 39 Missou. 500; so where an 
 
 (■1 ) This is Bacon's definition ; but where a devise was to " George, the son of 
 Gord," and it appeared on the face of the will that there was a George, the son of 
 John Gord, and a George, the son of George Gord, parol evidence was admitted, and 
 the descriptions in the will were held to amount to no more than this : that the person 
 to whom the imperfect description appeared on the parol evidence to apply, was de- 
 scribed in other parts of the same will by a more full and perfect description, which 
 excluded any other object than himself; Dqe v. Needs, 2 M. & W. 129. 
 
 [169] 
 
CH. IV. § IX.] PAEOL EVIDENCE TO EXPLAIN AMBIGUITIES. 
 
 259 
 
 ceived to show what is parcel or nqt of the thing conveyed.(p) 
 And if an agreement refer to a plan as an existing document 
 upon which the contract is founded, parol evidence is admissible 
 for the purpose of identifying the plan.(5) 
 
 7. In some cases a latent ambiguity may be fatal. Parol evi- 
 dence may be adduced to prove the ambiguity, where none suffi- 
 ciently satisfactory can be offered to explain it.(r) And to render 
 parol evidence admissible in these cases, a clear latent ambiguity 
 must be first shown. Evidence which merely raises a conjecture 
 is insufficient.(s) 
 
 8. A patent ambiguity cannot be aided by extrinsic evidence.(^) 
 
 agent contracts, parol evidence is admis- 
 sible to prove who is the principal ; Morris 
 V. "Wilson, 5 Jur. N. S. 168; Humfrey v. 
 Dale, 5 Jur. N. S. 191 ; Chitty Contr. (10th 
 Am. ed.) 110; Huntington v. Knox, 7 
 Cnsh. 371, 374; Hubbert v. Borden, 6 
 Whart. 79 ; Lerned v. Johns, 9 Allen, 419 ; 
 Oelrichs v. Ford, 21 Md. 489 ; or to show- 
 that the apparent agent is himself the 
 principal. Schmalz v. Avery, 16 Q. B. 
 655 ; Carr v. Jackson, 7 Exch. 382 ; 
 Chitty Contr. (10th Am. ed.) 110.] 
 
 (p) Quaintrell v. Wright, Bun. 274 ; 
 Longchamps v. Pawcett, Peak. 7 1 ; Doe v. 
 Burt, 1 T. Rep. 701 ; Anon. 1 Str. 95 ; Doe 
 V. Oxendon, 3 Taunt. 147 ; consider Boys 
 V. Williams, 2 Kus. & My. 689. [See 
 Hatch V. Hatch, 2 Hayvr. 32 ; White v. 
 Egan, 1 Bay, 247 ; Middleton v. Perry, 2 
 Bay, 539 ; Lofter v. Heath, 2 Hayw. 347 ; 
 Baker v. Beekright, 1 Hen. & M. 177 ; Bell 
 V. Woodward, 46 N. H. 315 ; Hughes v. 
 Sandal, 25 Texas, 162 ; Wing v. Gray, 36 
 Vt. 261 ; Abbott v. Abbott, 51 Maine, 575. 
 An agreement in writing to lease for a 
 term of years " the Adams House, situate 
 on Washington Street in Boston," may be 
 proved by parol to have been intended by 
 the parties to include only so much of the 
 building as was fitted up as a hotel, by the 
 name of " the Adams House," and not the 
 separate shops which occupied the whole 
 of the ground floor except the entrance to 
 the hotel. Sargent v. Adams, 3 Gray, 81. 
 Land "known by the name of the mill 
 
 spot," may be explained by parol evidence 
 of what " the mill spot" was commonly 
 reputed, at and before the time of the exe- 
 cution of the deed, to include. Woods v. 
 Sawin, 4 Gray, 322.] 
 
 (q) Hodges V. Horsfall, 1 Rus. & My. 
 116 ; Andrew v. Andrew, 8 De G., M, & 
 6. 350. [See Lyle v. Richards, L. R. 1 E. 
 
 6 It. App. 222.] 
 
 (r) Thomas v. Thomas, 6 T. R. 671 ; 
 Bradshaw v. Bradshaw, 2 Yo. & Col. 72 ; 
 Alexander v. Crosbie, Rep. t. Sugd. 145. 
 
 (s) Ld. Walpole v. Ld. Cholmondeley, 
 
 7 T. R. 138; Smith v. Jeffi-yes, 15 M. & 
 W. 561 ; [Paysant v. Ware, 1 Ala. 160.] 
 
 (t) Purch. 175, and cases there cited, 
 Jac. 463; [Peisch w. Dickson, 1 Mason, 11 
 1 Greehl. Ev. § 300 ; Webster v. Atkinson 
 4 N. H. 22, 23 ; Eish v. Hubbard, 21 Wend 
 651 ; Lett V. Homer, 5 Blackf. 296 ; Stack- 
 pole V. Arnold, 11 Mass. 29, 30; King 
 XCing, 7 Mass. 496 ; Eathmaler u. Myers, 
 4Desaus. 215. Patent ambiguities can be 
 removed only by a sound construction of 
 the words of the deed. Parsons C. J. in 
 Storeru. Ereeman, 6 Mass. 440 ; Richardson 
 C. J. in Webster v. Atkinson, 4 N. H. 23. 
 Where the description of the land intended 
 to be conveyed is entirely insufficient, parol 
 evidence is inadmissible to show what land 
 the parties meant upon a bill for specific 
 performance of their contract. Richardson 
 V. Godwin, 6 Jones Eq. 229 ; see Pettit v. 
 Shepard, 32 N. Y. 97.] 
 
260 
 
 PAROL EVIDENCE TO EXPLAIN AMBIGUITIES. [CH. IV. § IX. 
 
 Parol evidence, therefore, is inadmissible to restrain the legal 
 operation of general words^ in an instrument, although intro- 
 duced by the mistake of the attorney, (m) 
 
 9. But "the effect of general words may be restrained in a 
 court of equity, on the ground of mistake, where, it is satis- 
 factorily proved. (ic) 
 
 10. And courts both of law and equity constantly advert to 
 the situation of the parties, &c., in order to enable them to con- 
 strue ambiguous or ill-penned instruments, although parol evi- 
 dence of the intention of the parties could not be received, and 
 this has been sanctioned by a leading case in the Ho.use of 
 Lords.(y) But it is clearly settled, that in the construction of an 
 agreement or deed, the acts of the parties cannot be taken into 
 consideration. (^) In a late case at law, upon a contract not 
 under seal to pay an auctioneer a given percentage, but if the 
 estate were not sold within two months after the auction, a 
 smaller amount, it was held, 1. That months meant lunar 
 * months, unless there was admissible evidence of an intention in 
 
 (u) Davis V. Thomas, Purch. 177 ; 1 
 Dick. 301 ; Stalling v. Farmer, 1 Str. 646 ; 
 Butcher v. Butcher, 1 New E. 113 ; Strode 
 V. Ly. Falkland, 2 Ver. 621 ; 3 Cha. R. 90 ; 
 Goodinge v. Goodinge, 1 Ves. 231 ; 1 New 
 R. 113; [Pierson v. Hooker, 3 John. 68 ; 
 Hoes V. Van Hoesen, 1 Barb. Ch. 379 ; 
 Rice V. Woods, 21 Pick. 30; Harris v. 
 Dickins, 4 Desaus. 60 ; De Long v. Stan- 
 ton, 9 John. 38; Sessions v. Barfield, 2 
 Bay, 94.] 
 
 (x) Infra. 
 
 (y) Sir J. Eden v. Earl of Bute, 7 Bro. 
 P. C. 745 ; Ly. Shelhurne v. Ld. Inchi- 
 quin, 1 Bro. C. C. 338 ; Cook v. Booth, 
 Cow. 819; Black. 1249; 1 New R. 42; 
 Peake Ev. ch. 2, overruled ; Baynham 
 V. Guy's Hospital, 3 Ves. 295 ; 2 Ves. jr. 
 448 ; Eaton v. Lyon, 3 Ves. 690 ; Iggulden 
 V. May, 9 Ves. 325 ; Moore •,. Foley, 6 
 Ves. 232; 2 New E. 452 ; [1 Greenl. Ev. 
 §§ 277, 287, 288, 298, 299 ; Smith v. Bel], 
 6 Peters (U. S.), 75 ; Wooster v. Butler, 
 13 Conn. 318; Fenderson v. Owen, 54 
 Maine, 372 ; Armstrong v. Burrows, 6 
 Watts, 266 ; Halsted v. Meeker, 3 Green 
 
 [170] 
 
 (N. J.), 136; Gould V. Lee, 55 Penn. St. 
 99; Ames v. St. Paul &c. R. E. Co. 12 
 Minn. 412 ; Crawford v. Brady, 35 Geo. 
 184; Williams v. Waters, 36 Geo. 454; 
 Sheutze v. Baily, 40 Missou. 69 ; Masters 
 V. Freeman, 17 Ohio St. 323; Knight v. 
 New England Worsted Co. 2 Cush. 271.'" 
 In Attorney General v. Clapham, 4 De 
 G., M. & G. 591, Lord Chancellor Lord- 
 Cranworth said that parol evidence is 
 admissible to enable the court rightly to 
 understand in what sense words are used 
 in a deed, just as evidence is afforded by a 
 dictionary which enables us to translate a 
 foreign language, or by a book of science, 
 which gives us the meaning of words of 
 art. See Russell v. Eastern Railroad Co. 5 
 Allen, 295.] 
 
 (z) Clifton V. Walmsley, 5 T. R. 564 ; 
 Iggulden u. May, 7 East, 237 ; Monro t. 
 Taylor, 8 Hare, 56. [See Bell v. Wood- 
 ward, 46 N. H. 315; Allen v. Kingsbury, 
 16 Pick. 239 ; Stone v. Clark, 1 Met. 381 ; 
 Codman v. Winslow, 10 Mass. 149; Chil- 
 dress V. Ford, 10 Sm. & M. 25 ; Beacham 
 V. Eckford, 2 Sandf. Ch. 116.] 
 
CH. IV. § IX.] MEANIKlG OF WORDS. 261 
 
 the parties using the word to denote calendar months. 2. That 
 if the contract shows that calendar months were intended, 
 the judge may adopt that construction. 3. That if the sur- 
 rounding circumstances, at the time the instrument was made, 
 show that the parties intended to use the word not in its primary 
 or strict sense, but in some secondary meaning, the judge may 
 construe it from such circumstances, according to the intention 
 of the parties. 4. That if there is evidence that the word was 
 used in a sense peculiar to a trade, business, or place, the jury 
 must say whether the parties used it in that peculiar sense.(2r^) 
 5. But that the conduct of the parties to a written instrument 
 alone is not admissible evidence to withdraw the construction 
 of a word therein from the judge and to transfer it to the 
 jury. (a) The judge, of course, could not vary the legal con- 
 struction upon the mere conduct of the parties subsequently to 
 the contract.(a^) 
 
 11. Where, however, the words of an ancient statute or instru- 
 ment are doubtful, contemporaneous usage, although it cannot 
 overturn the clear words of the instrument, will be admitted to 
 explain it.(b) 
 
 12. Where a question arose upon the meaning of the words 
 " keep in order," in an agreement to plant trees upon Iand,(c) 
 Mr. Baron Bayley said, that he should not have thought that 
 the price ought to have been taken into consideration, unless, 
 " keeping in order " had been an equivocal expression, but the 
 price must be an ingredient from which a construction of such 
 an agreement as that might be come at. He thought the price 
 was an ingredient in the construction of an agreement, in which 
 equivocal words were used, and Mr. Baron Vaughan was of the 
 same opinion ; but Mr. Baron Bolland did not concur in that 
 
 (zi) [See Chitty Contr. (10th Am. ed.) 810 ; Kex v. Miller, 6 T. R. 268 ; Att. Gen. 
 
 104 et seq. HI, 112, & in notes.] v. Parker, 2 Atk. 576 ; Att. Gen. a. Forster, 
 
 (a) Simpson v. Margitson, 11 Q. B..'23. 10 Ves. 335; Kitchin v. Bartch, 7 East, 
 
 (a^) [Either at law; Iggulden v. May, 5 53; Bailiffs &c. of Tewkesbury v. Brick- 
 East, 237; Simpson v. Margitson, 11 Q. nell, 2 Taunt. 120; Rex v. Osbourne, 4 
 "B. 23; Lewis u. Nicholson, 18 Q. B. 503; East, 327; Stammers u. Dixon, 7 East, 
 or in equity ; Monro v. Taylor, 8 Hare, 56.] 200 ; Ld. Waterpark v. Fennell, 5 Jur. N. 
 
 (6) Sheppard v. Gosnold, Vaug. 169; S. 1135; [per Wilde J. in Allen w. Kings- 
 Rex k. Varlo, Cow. 246 ; Gape k. Handley, bury, 16 Pick. 239; Cortelyan v. Van 
 3 T. R. 228, n.'; Blankley v. Winstanley, Brunt, 2 John. 357.] 
 3 T. R. 279 ; Rex v. Bellringer, 4 T. R. (c) Allen v. Cameron, 1 Cro. & Mee. 832 
 
262 
 
 PAROL EVIDENCE TO COEBECT MISTAKES. [CH. IV. § X. 
 
 opinion, because a party may enter into a contract, and under- 
 take to do work for much less than its value. He thought it a 
 dangerous doctrine that the price might be imported into the 
 consideration of the construction of the agreement. Mr. Baron 
 Bayley added, that he should certainly think that the price was 
 not admissible in construing the agreement, had it not been that 
 there was an ambiguity in it; but even with this explanation, 
 Mr. Baron Bolland's appears to be the sounder opinion. 
 
 •SECTION X. 
 
 OF PAROL EVIDENCE IN EQUITY TO CORKECT MISTAKES OR FRAUDS. 
 
 1. Mistakes and frauds corrected by parol 
 
 evidence. 
 
 2. Parol evidence corroborated. 
 
 3. Mistake of purchaser's attorney in con- 
 
 veyance corrected. 
 
 i. Proposals'to correct by must be final con- 
 tract. 
 
 5. Omission of provision on supposed ille- 
 gality. 
 
 Fraud coiTected. — What amounts to 
 fraud. • 
 
 Third person drawing up minutes con- 
 trary to intention. 
 
 Promise to rectify an accidental omission 
 enforced. 
 
 Effect of fraud. 
 
 No relief against bona Jide purchaser. 
 
 1. Equity also corrects mistakes and fraudulent omissions in 
 agreements in deeds ; {a)^ for, if a mistake appears, it is as much 
 to be rectified as fraud, (6) but the difficulty to establish it is 
 
 (a) Henkle v. E. E. A. Office, 1 Ves. 
 317. 
 
 (6) Taylor v. Kadd, 5 Ves. 595 ; Lady 
 Shelbiirne v. Ld. Inchiquin, 1 Bro. C. C. 
 338 ; Cock v. Richards, 10 Ves. 441 ; Ld. 
 Townshend v. Stangroom, 6 Ves. 328 ; 
 Att. Gen. v. Comm. of Woods and Forests, 
 1 Yo. & Col. 559, 583 ; 1 Bro. C. C. 92 ; 
 see Hare v. Shearwood, 3 Bro. C. C. 168 ; 
 1 Ves. jr. 241 ; Haynes u. Hare, 1 H. 
 Black. 659 ; 2 Ves. 377 ; 5 Ves. 601 ; 
 Pember v. Mathers, 1 Bro. C. C. 52; 
 Wright V. Goff, 2 Jur. N. S. 481 ; Eooke 
 u. Lord Kensington, lb. 755 ; 2 K. & J. 
 753; Fowler v. Fowler, 4 De G. &'J. 273 ; 
 [ante, 160, n. (r) ; Wooden u. Haviland, 
 18 Conn. 101 ; Clopton v. Martin, 11 Ala. 
 
 [171] 
 
 187; Langdon v. Keith, 9 Vt. 299 ; Avery 
 V. Chappel, 6 Conn. 274 ; Inskoe v. Proc- 
 tor, 6 Monroe, 316; Beardsley u. Knight, 
 10 Vt. 185; Goodell v. Field, 15 Vt. 448; 
 Webster v. Harris, 16 Ohio, 490; White v. 
 Denman, 1 6 .Ohio, 59 ; I'eterson v. Grover, , 
 20 Maine, 367 ; Marks v. Pell, 1 John. 
 Ch. 598, 599 ; Bailey v. Bailey, 8 Humph. 
 230; Richardson v. Bleight, 8 B. Monr. 
 580; Blodgett v. Hobart, 18 Vt. 4;i4 ; 
 Miles V. Stevens, 3 Barr, 20 ; Alexander 
 V. Newton, 2 Grattan, 266; Parham v.' 
 Parham, 6 Humph. 287 ; O'Neil v. Teague, 
 8 Ala. 345; Miller v. Henderson, 10 Serg. 
 & E. 292; Glass v. Hulbert, 102 Mass. 
 34 ; Loss V. Obry, 7 C. E. Grefen, 52 ; Con- 
 over V. Warden, 7 C. E. Green, 492.] 
 
CH. IV. § X.] TO COKKECT MISTAKES OB FEAUDS. 263 
 
 great.(6^) (1) A settlement which agrees with the intention of 
 one of the parties, although under a mistake as to the other, can- 
 not be rectified. (c) / 
 
 2. Where it was clearly shown that a settlement was framed 
 contrary to the intention, in consequence of a clerk mistaking 
 the attorney's instructions, the court refused to rectify the settle- 
 ment, as nothing appeared in writing under the hands of the 
 parties to correct it hy.{d) But whatever difficulty there may be 
 of admitting parol evidence singly, it is always admitted where 
 it is corroborated by other evidence. And, if necessary, an issue 
 may be directed to try the fact.-(e) Upon this head, general cov- 
 enants for title have *been relieved against upon parol evidence, 
 that such was not the intention,(/) corroborated in one case by 
 
 (fti) [Relief will be granted on the 432 ; Whitney v. Whitney, 5 Dana, 330 ; 
 
 ground of mistake in a written instrument Peters v. Goodrich, 3 Conn. 146 ; and, if 
 
 only where there is a plain mistake, clearly satisfactory, may be relied on as sufficient' 
 
 made out by satisfactory proofs. Gillespie for the purpose. Tilton v. Tilton, 9 N. 
 
 V. Moon, 2 John. Ch. 595, 597 ; Lyman v. H. 392 ; Baugh v. Ramsey, 4 Monroe, 
 
 United Ins. Co. 2 John. Ch. 630 ; 1 Story 158 ; Inskoe u. Proctor, 6 Monroe, 316 ; 
 
 Eq. Jur. § 157; Lyman o. Little, 15 Vt. Chetwood v. Brittan, 1 Green Ch. 438 
 
 576; Coles v. Bowne, 10 Paige, 526; Rogers v. Atkinson, 1 Kelly, 12.] 
 
 Griswold v. Smith, 10 Vt. 452; Cleave- (c) Sells v. Sells, 1 Drew. & Sm. 42. 
 
 land 1^. Burton, 11 Vt. 138; Goodell v. {d} Harwood v. Wallace, 2 Ves. 195; 
 
 Field, 15 Vt. 448; Gray v. Wood, 4 Llo. & Go. t. Sugd. 150; 1 Dick. 295. 
 
 Blackf. 432; Whitney v. Whitney, 5 [See Dupree u. McDonald, 4 Desaus. 211.] 
 
 Dana, 330 ; Garter v. Chandler, 2 Bibb, (e) S. S. Cy. v. D'Oliff, 2 Ves. 377 ; 5 Ves. 
 
 246 ; ante, 160, u. (r) ; White v. Williams, 601 ; Pember v. Mathers, 1 Bro. C. C. 52. 
 
 48 Barb. 222. Parol evidence is admissi- (/) Coldcot v. Hide, 1 Cha. Ca. 15 ; 1 
 
 ble to prove the mistake though it be de- Sid. 328 ; Alexander v. Crosbie, Llo. & 
 
 nied by the answer; Gillespie v. Moon, 2 Go. t. Sugd. 145; Mortimer v. Shortall, 2 
 
 John. Ch. 585.; Gray v. Woods, 4 Blackf. Dru. & War. 363. 
 
 (1) Even at law the palpable mistake of a word will not defeat the intention of the 
 parties. Where the condition of a bond was, that it should be void if the obligor did 
 not pay ; and performance being pleaded on the ground of literal expression, the court 
 held the plea bad. Anon. Dougl. 384, cited, 2d edition ; 1 Dow, 147. It seems clearly 
 settled, that words evidently omitted in a will by mistake may be supplied, both at law 
 and in equity; ToUett v. ToUett, Amb. 194; Cory ton v. Hellier, 2 Bur. 923 ; Doe v, 
 Micklem, 6 East, 486 ; Lane v. Goudge, 9 Ves. 225 ; Mellish v. Mellish, and Phillips 
 V. Chamberlin, 4 Ves. 45, 51 ; [Covenhoven u. Shaler, 2 Paige, 122 ; Deakins v. HoUis, 
 7 Gill & J. 311; Cresswell v. Lawson, 7 Gill & J. 227; Pickering v. Langdon, 22 
 Maine, 429 ; Geiger v. Geiger, 4 McCord, 418 ; Lynch v. Hill, 6 Munf. 114 ; Hamil- 
 ton V. Boyles, 1 Brevard, 414 ;] but however evident the mistake may be, the words 
 will not be supplied if the testator's manifest intention would be defeated by the in- 
 sertion of theni. Chapman v. Brown, 3 Bur. 1626 ; 2 Ves. jr. 365. But now words 
 of inheritance are supplied by the 1 Vict. c. 26, s. 28, 29. 
 
 [172] 
 
264 TO COKRECT MISTAKES OB FRAUDS. [CH. IV. § X. 
 
 the form of the deed, and the subject of the eontract.(g-) And 
 in the case of Thomas v. Davis,(/«) where it clearly appeared that 
 the estate in question was not intended to be comprehended in 
 the general words ; particularly from the description of the estate 
 given by the husband to the attorney by way of instructions, 
 which described the lands, and did not include Rigman Hill; 
 and the attorney proved that he did not know of this estate, and 
 that he introduced general words, merely to guard against any 
 wrong or imperfect description of the lands actually intended to 
 pass ; the evidence was admitted in equity to correct the mis- 
 take.(A^) (1) So in Rogers v. Earl,(t) instructions were given, 
 previously to marriage, for a settlement of the wife's estate on 
 the husband during his life, if he and his wife should so long 
 live, remainder to the wife for life, remainder to the issue of the 
 marriage in strict settlement, remainder to such uses as the wife 
 should appoint ; and when the wife saw the draft, thinking she 
 was past child-bearing, she objected to the limitations to the 
 issue, and the attorney, by mistake, not only struck out those 
 limitations, but also the limitation to the wife for life, and the 
 subsequent limitation to trustees to preserve, and the deed was 
 executed without the mistake being discovered ; and in equity, 
 the settlement was ordered to be rectified accordingly. 
 
 3. In the case of Robb v. Butterwick,(A;) a conveyance of a 
 
 (g) Fielder v. Studley, Finch, 90 ; Brown- (.i) 1 Dick. 204. Note, the facts are not 
 
 ing V. Wright, 2 Bos. & Pul. 26 ; Hesse v. stated in the report ; they are extracted 
 
 Stevenson, 3 Bos. & Pul. 575; Young u. from Reg. Lib. B. 1756, fol. 205; Pritch- 
 
 Young, 1 Dick. 295, 303, 304. ard v. Quinchant, Ambl. 147 ; 5 Ves. 596, 
 
 (A) 1 Dick. 301 ; Reg. Lib. B. 1757, fol. u. (a) ; Barstow v. Kilvington, 5 Ves. 593 ; 
 
 33, 34 ; Moss v. Harter, 18 Jur. 973. Ngiggn „, Nelson, Nels. C. R. 7 ; Shaw v. 
 
 (Ai) [Where a marriage settlement does Jakeman, 4 East, 201 ; Duke of Bedford 
 not conform to the intention of the parties, v. Ld. Abercorn, 1 My. & Cra. 312 ; Mar- 
 either through mistake, or the fraud of quis of Exeter v. Marchioness of Exeter, 
 one of the parties, it will be corrected by a 3 My. &. Cra. 321; Asharst «. Mill, 7 
 court of equity. Scott v. Duncan, 1 Dev. Hare, 502 ; Bold v. Hutchinson, 5 De G., 
 Eq. 403 ; Allen v. Rumph, 2 Hill Ch. 3 ; 1 M. & G. 558 ; Wolterbeek v. Barrow, 23 
 Story Eq. Jur. § 160; Babcock v. Smith, Beav. 423 ; Naylor v. Wright, 3 Jur. N. 
 22 Pick. 69, 70 ; Flemings v. Willis, 2 Call, S. 1090 ; Thompson v. Whitmore, 1 J. & 
 5 ; Tabb v. Archer, 3 Hen. & il. 399 ; H. 268. 
 
 Gaitlard v. Porcher, 1 McMuUan Eq. 358 ; {k) 2 Pri. 190 ; Beaumont v. Bramley, 
 
 Smith V. Maxwell, 1 Hill Ch. 101 ; Gause Tur. & Rus. 41 ; Howkins v. Jackson, 2 
 
 V. Hale, 2 Ired. Eq. 241, 243.] De G. & Sm. 372. 
 
 ( 1 ) The judgment is very inaccurately stated in the report. 
 
CH. IV. § X.] TO COEEKCT MISTAKES OR FRAUDS. 265 
 
 portion of church tithes upon a purchase was made, contrary to 
 what was considered to be the true construction of the written 
 agreement, subject to a proportion of the rent reserved by the 
 lease of the tithes ; and upon proof that this was done by the 
 mistake of the purchaser's attorney, and that the rent had not 
 been demanded for several years, the deed was, after the lapse of 
 several years, rectified, and made conformable 4o the written 
 agreement. Where the amount of an annuity was to depend on 
 the value of a government annuity, and the agent 'of the pur- 
 chaser, by mistake, furnished the seller with an incorrect state- 
 ment by which the amount was increased, the contracSt, although 
 executed, was set aside on the ground of mistake ; but the court 
 refused to reduce the amount of the annuity, and probably would 
 have afforded no relief if the seller had relied on his own knowl- 
 edge, or on that of otljers unconnected with the purchaser.(Z) 
 
 4. To enable equity to amend an instrument by proposals, it 
 must, of course, be shown that they constituted the final con- 
 tract of the parties, for they may have been varied by subsequent 
 agreement before the execution of the deed ; in which case there 
 would be no mistake to rectify. (?n) 
 
 5. Where parties omit any provision in a deed, on the imp^res- 
 sion of its being illegal, and trust to each other's honor, bhey 
 must rely upon that, and cannot require the defect to be supplied 
 by parol evidence.(w) 
 
 6. But fraud is in equity an exception to every rule.(o) If the 
 agreement had been varied by fraud, the evidence would be ad- 
 missible. The only difficulty in these cases is, to ascertain what 
 shall be deemed fraud. If parties merely agree to a term, and 
 
 [1) Carpmael v. Powis, 10 Beav. 36. [See Gunter v. Thomas, 1 Ired. Bq. 199 ; 
 
 (m) Ld. Breadalbane v. Ld. Chandos, 2 Lee v. Kirby, 104 Mass. 420, 430.] 
 
 My. & Cr. 711 ; Elwes v. Elwes, 2 Giff. (o) Ld. Irnham v. Child, 1 Bro. C. C. 
 
 545 ; 7 Jur. N. S. 747. 92 ; Taylor v. Radd, 5 Ves. 395 ; Henkle 
 
 (n) Ld. Irnham v. Child, 1 Bro. C. C. v. R. E. A. Office, 1 Ves. 317 ; Pitcairne 
 92 ; Hare v. Shearwood, 1 Ves. jr. 241 ; 3 u. Ogbourne, 2 Ves. 375 ; Lady Shelturne 
 Bro. C. C. 168; Haynes v. Hare, 1 H. ... Ld. Inchiquin, 1 Bro. C. C. 338; [Phyfe 
 Black. 659 ; Ld. Portmore v. Morris, 2 v. Wardell, 2 Edw. Ch. 47 ; 1 Story Eq. 
 Bro. C. C. 219 ; 1 H. Black. 663, 664 ; § 166 ; O'Neil v. Teague, 8 Ala. 345 ; Jar- 
 Rosamond u. Ld. Melsington, 3 Ves. 40, vis v. Palmer, 11 Paige, 650; Kenshaw v. 
 n. ; White v. Anderson, 1 Jr. Ch. R. 419. Gans, 7 Barr, 117.] 
 
 [173] 
 
266 WHAT AMOUNTS TO FKAUD. [CH. IV. § X. 
 
 then execute an instrument in which that term is omitted, with- 
 out objecting to the omission of it, the court cannot relieve the 
 injured party. (j») . Where a lessor drew a lease for one year in- 
 stead of twenty-one, and read it for twenty-one, the lessee was 
 not relieved, because he could read, and it was his own folly, 
 and he was made to pay the costs.(^) So a general reservation 
 of trees, in a lease with liberty to cut and carry them away, was 
 not restricted by parol evidence, that the landlord assured the 
 lessee he should not cut the timber, but only reserved it in order 
 that all his leases might be uuiform.(r) 
 
 7. In the Countess of Shelburne v. the Earl of Inchiquin,(s) 
 Lord Thurlow said, if two persons intrust a third person to draw 
 up minutes of their intention, and such person does not draw 
 them according to such intention, that case might be relieved, 
 because that would be a kind of fraud. And it is said that, in 
 the case of Jones v. SherifFe,(i) there were heads of an intended 
 lease taken by an attorney in writing ; * but upon proof that 
 some other clauses were agreed on between the parties at the 
 same time, the court decreed that those clauses should be put 
 into the lease, notwithstanding the counsel on the other side 
 strenuously insisted on the statute of frauds. 
 
 8. If either party object to a conveyance, on the ground of a 
 term of the agreement being omitted, and the other party prom- 
 ise to rectify it, whereupon the deed is executed, a specific per- 
 formance of the promise will be enforced. (m) 
 
 9. And where fraud is distinctly proved, or the jury infer it 
 from the circumstances, an agreement is invalid at law, as well 
 as in equity ; (x) but the reducing the agreement to writing is, 
 in most cases, an argument against fraud. A purchaser or seller 
 
 (p) Rich V. Jackson, 4 Bro. C. C. 514. Zane v. Cawley, 6 C. E. Green (N. J.), 
 
 [See Zane v. Cawlev, 6 C. B. Green (N. 130.] 
 
 J.), 130.] (s) 1 Bro. C. C. 350 ; see Crosby w. Mid- 
 
 (q) Anon. Skin. 159, but qu. the author- dleton, 3 Cha. R. 99 ; Langley v. Brown, 
 
 ity of this case. 2 Atk. 195 ; Baker v. Payne, 1 Ves. 6. 
 
 (r) Jackson v. Cator, 5 Ves. 688. [Pa- (t) 9 Mod, 88. 
 
 rol evidence cannot he admitted to show (m) Pember v. Mather, 1 Bro. C. C. 52 ; 
 
 that the grantor in a deed reserved plants 14 Ves. 524. 
 
 growing upon the land; Wintermute v. {x) Haigh v. De la Cour, 3 Ca. 319; 
 
 Light, 46 Barb. 278 ; or trees growing in Emanuel v. Dane, 3 Ca. 299 ; Solomon v. 
 
 a nursery; Smith u. Price, 39 111. 28 ; or Turner, 1 Star. 51. [SeeDanielu. Mitchell, 
 
 growing crops ; Powell v. Rich, 41 111. 467 ; 1 Story, 172.] 
 
 [174] 
 
CH. IV. § X.J OF THE CONSEQUENCES OF THE CONTRACT. 267 
 
 may not be at liberty at law to add a parol condition to a written 
 agreement as a defence, and yet may avoid the contract on the ' 
 ground that he was induced to enter into it by a representation, 
 not collateral to the contract, made by the other party with a 
 knowledge that it was false.(j/) Where the transaction was 
 really for a mortgage, but an absolute conveyance was taken by 
 the mortgagee, his setting up a title as purchaser was held to be 
 a fraud, and parol evidence was admitted to prove the real agree- 
 ment.(z) 
 
 (y) Canham v. Barry, 15 C. B. 597. minster v. Whyte, 1 Md. Ch. 536 ; S. C. 
 
 {z) Lincoln v. Wright, 4 De &. & J. 16, 3 Md. Ch. 508; Scott v. Henry, 13 Ark. 
 supra; there was also part performance. 112; Smith u. Pearson, 24 Ala. 358 ; Cun- 
 [Marks v. Pell, 1 John. Ch. 594 j Strong ninghara v. Hawkins, 27 Cal. 603 ; Hop- 
 V. Stewart, 4 John. Ch. 167; James y. per w. Jones, 29 Cal. 18; Trucks w. Lind- 
 Johnson, 6 John. Ch. 417; Clark W.Henry, sey, 18 Iowa, 504; 1 Washb. R. P. (1st 
 2 Co wen, 324 ; Whittick v. Kane, 1 Paige, ed.) 483-489 ; Locke v: Palmer, 26 Ala. 
 206; Mann v. Ealcon, 25 Texas, 271; 312; Brantley M. West, 27 Ala. 542 ; West 
 Washburn v. Merrills, 1 Day, 139 ; Mur- v. Hendrix, 28 Ala. 226 ; McCarron v. 
 phy V. Tripp, 1 Monroe, 73 ; 1 Story Eq. Cassidy, 18 Ark. 34; Scott v. Henry, 13 
 Jur. § 768; 2 7b. § 1018; Reading w. Ark. 112; Blakemore w. Byrnside, 2 Eng. 
 Weston, 8 Conn. 117, 120-122; Hodges (7 Ark.) 505; Thomas v. McCormack, 9 
 V. Tennessee Ins. Co. 8 N. Y. 416 ; Des- Dana, 109 ; Swetlandu. Swetland, 3 Mich, 
 pard u. Walbridg^ 15 N. Y. 374; "Van 645; Wadsworth v. Loranger, Harr. 
 Buren D. Olmstead, 5 Paige, 9 ; Stewart w. (Mich.) Ch. 113; Yasser v. Yasser, 23 
 Hutchins, 13 Wend. 485 ; Webb o. Rice, Miss. 378 ; Tibeau v. Tibeau, '22 Missou. 
 6Hill, ;J19; May ». Eastin, 2 Port. 414; 77. But in Massachusetts, Maine, and 
 Green v. Bonnell, 1 Green Ch. 264 ; Con- New Hampshire, parol evidence seems to 
 well V. Evill, 4 Blackf. 67 ; Davis v. Hop- have been regarded at law as inadmissible 
 kins, 15 111. 519 ; Reigard v. McNeil, 38 to vary the terms of an absolute deed, or 
 111. 400 ; Conner v. Chase, 15 Yt. 764 j other absolute formal writing so as to 
 Hyndman v. Hyndman, 19 Vt. 9; Wright make it a mortgage. See Flint v. Shel- 
 V. Bates, 13 Yt. 341 ; Hannay v. Thomp- don, 13 Mass. 443; Bodwell v. Webster, 
 son, 14 Texas, 142 ; Blanchard v. Keaton, 13 Pick. 411, 413 ; Erskine v. Townsend, 
 4 Bibb, 451 ; Crane v. Bonnell, 1 Green 2 Mass. 493 ; Whitaker v. Sumner, 20 
 Ch. 264 ; Todd v. Rivers, 1 Desaus. 155 ; Pick. 404 ; Harper v. Ross, 10 Allen, 332 ; 
 1 Cruise Dig. by Mr. Greenleaf, tit. 15, Hale «. Jewell, 7 Greenl. 435; French v. 
 ch. 1, § 20, in note ; Hinson v. Porter, 11 Sturdivant, 8 Greenl. 250, 251 ; Bryant v. 
 Humph. 587 ; McDonald v. McLeod, 1 Crosby, 36 Maine, 562 ; Thomaston Bank 
 Ired. Eq. 221 ; Arnold u.Mattison, 3 Rich. v. Stimpson, 21 Maine, 195 ; Ellis v. Hig- 
 Eq. 153 ; Glass v. Hulbert, 102 Mass. 37 ; gins, 32 Maine, 34; Lund v. Lund, 1 N. 
 Sellers V. Stalcup, 7 Ired. Eq. 13 ; Taylor H. 39 ; Hebron v. Centre Harbor, 11 N. 
 V. Lnther, 2 Sumner, 228; Babcock v. H. 571. So in Connecticut, Benton v. 
 Wyman, 2 Curtis C. C. 386; S. C. 19 Jones, 8 Conn. 186. See, also, as to other 
 How. (U: S.) 289; Jenkins v. Eldredge, 3 States, Watson v. Dixon, 12 Sm. & M. 
 Story, 293 ; Morris u. Nixon, 1 How. (U. 508; Hovey v. Holcomb, 11 Bl. 660; 
 S.) 118; Kerr v. Gilmore, 6 Watts, 414; Bragg u..Massie, 38 Ala. 89; George v. 
 4 Kent (11th ed.), 142, 143, &note; Ing Norris, 23 Ark. 121. But in Newton v. 
 V. Brown, 3 Md. Ch. 521 ; Bank of West- Eay, 10 Allen, 505, which was a case in 
 
268 
 
 PURCHASER WITHOUT NOTICE. 
 
 [CH. IV. § X. 
 
 10. But it must- be remarked that a deed will not be rectified 
 in equity on the ground of mistake or fraud, to the prejudice of 
 a bond fide purchaser, without notlce.(a) 
 
 equity, it was held that a transfer of shows that a deed of conveyance, though 
 
 shares in the capital stock of a corpora- absolute in its form, wAs intended merely 
 
 tion, by ao instrument absolute in its to secure a debt or to indemnify against 
 
 terms, might be shown by parol proof to liabilities, it will be treated as a mortgage, 
 
 have been made in reality only as coUat- Howe u. Russell, 36 Maine, 115; see 
 
 eral security for a debt. So in a late ease Richardson v. Woodbury, 43 Maine, 206.] 
 in equity in Maine, the court decided that (a) Thomas v. Davis, 1 Dick. 301. ' 
 when the bill, answer, and proof, each 
 
CHAPTER V. 
 
 OF THE CONSEQUENCES OF THE CONTRACT. 
 
 SECTION I. 
 
 OP THE PUECHASEK S TITLE FKOM THE TIME OF THE CONTKACT. 
 
 1. Seller trustee of estate for purchaser. 
 
 2. Bankruptcy does not discharge the con- 
 
 tract. 
 
 3. Assignees put to their election. 
 
 5. Extent prevails over contract. 
 
 6. Purchaser without notice also. 
 
 7. Death of party immaterial. 
 
 8. Purchase money assets of vendor. 
 
 9. Mortmain act. 
 
 10. Purchaser not to cut timber. 
 *11. Operation of contract where the pur- 
 chaser is tenant. 
 
 13. Conveyance destroys covenants in lease. 
 
 14. Purchaser let into possession on contract : 
 
 tenancy. 
 Ejectment against him. 
 Where tenancy created by contract to pay 
 
 interest. 
 Where time no bar. 
 
 18. Where purchaser can recover for use and 
 
 occupation against seller. 
 
 19. Seatont). Booth: condition that purchaser 
 
 shall be tenant. 
 
 20. Purchaser to recover for use and occupa- 
 
 tion against his tenant before convey- 
 ance. 
 
 21. Purchaser's remedy after conveyance for 
 
 rent and covenants. 
 
 22. Apportionment of rents. 
 
 23. Purchaser's power over the estate. 
 24 
 to 
 35. 
 25. Effect of devise where the purchaser had 
 
 a term of years. — Previous bequest 
 
 15. 
 16. 
 
 17. 
 
 ' His power of devising hefore 1 Vict. c. 
 I 2fi, viz. 
 
 37. 
 
 40. 
 
 of term. — Conveyance did not oper- 
 ate a revocation. — Unless new uses 
 introduced. 
 
 Estates contracted for after the will not 
 affected by it. 
 
 Republication. 
 
 Heir put to his election. 
 
 Cautions in purchasing from heir. 
 
 Copyholds. 
 
 Contract revoked seller's will. 
 
 Where agreement could not be enforced 
 in equity, or was abandoned, qii. 
 
 Devise by seller after the contract. 
 
 Estate converted, although election to 
 buy is in purchaser. — Devisee by de- 
 scription entitled. 
 
 So of timber. — Eight of preemption en- 
 forced. 
 
 Right of next of kin of vendor. — Com- 
 pulsory sale. 
 
 Purchaser's right to devise since 1 Vict. 
 v;. 26. 
 
 Operation of act on contracts. — Upon 
 previous bequest where the purchaser 
 was a termor. 
 
 No form of conveyance a revocation. 
 
 Cautions in purchasing of heir. 
 
 Contract to sell revokes the seller's will. 
 
 Agreement void in equity not a revoca- 
 tion. 
 
 Nor an agreement abandoned, semhle. — 
 Operation of act on Knollys v. Shep- 
 herd. — And on Lawes i). Bennett. 
 
 General operation of act. 
 
 Operation of act on Arnald v. Arnald. 
 
 [175] 
 
270 
 
 BANKRUPTCY OF EITHER PARTY. 
 
 [CH. V. § I. 
 
 48. "Where heir of pmchaser eutitied. 
 
 49. His power over estate. 
 
 50. Executor must pay for the estate. 
 
 52. Death of vendor or purchaser and no 
 
 title. 
 
 53. Where estate directed to be bought can- 
 
 not be obtained. 
 
 1. Equity looks upon things agreed to be done, as actually 
 performed ;(«)(!) consequently, when a contract is made for sale 
 of an estate, equity considers the vendor as a trustee for the 
 purchaser of the estate sold, (6) and the purchaser as a trustee 
 of the purchase money for the vendor.(c) [And every subse- 
 quent purchaser from either, with notice, becomes subject to the 
 same equities as the party would be from whom he purchased.(c^) 
 
 (a) Franc. Max. 13 ; 1 Trea. Eq. c. 6, 
 s. 9;' Callaway v. Ward, 1 Ves. 318; 
 [Huffman v. Hummer, 2 Green (N. J.), 
 263 ; Eichter v. Selln, 8 Serg. & E. 425.] 
 
 (6) Atcherley v. Vernon, 10 Mod. 518; 
 Davie v. Beardsham, 1 Cha. C. 39; Ly. 
 Fohaine's case, lb. 1 T. E. 601 ; Green 
 V. Smith, 1 Atk. 572 ; [Kerr v. Day, 14 
 Penn. St. 112; Moore a. Burrows, 34 
 Barb. 173; Wickman v. Eobinson, 14 
 Wis. 493 ; Kidd v. Dennison, 6 Barb. 9 ; 
 Swartwout v. Burr, 1 Barb. 499 ; Fonda 
 V. Sage, 46 Barb. 109 ; Waddington v. 
 Banks, 1 Brock. 97 ; Craig u. Leslie, 3 
 Wheat. 563; Van Wyck ;.'. Alliger, 6 
 Barb. 511 ; Edgerton v. Peckham, 11 
 Paige, 359 ; Linscott v. Buck, 33 Maine, 
 530; Force v. Butcher, 2 Green (N. J.), 
 165 ; McKay v. Carrington, 1 McLean, 
 50 ; King v. Euckman, 6 C. E. Green (N. 
 J.), 599; Crawford v. Bertholf, Saxton, 
 458 ; 1 Story Eq. Jur. §§ 649, 789 ; 2 lb. 
 § 1212; Toft V. Stephenson, 7 Hare, 1 ; S. 
 C. 1 De G., M. & G. 28 ; Birch v. Joy, 3 
 H. L. Cas. 565 ; Siter's Appeal, 26 Penn. 
 St. 178 ; Parker v. Leewright, 20 Misson. 
 85 ; Lowell v. Middlesex Mut. Fire Ins. 
 Co. 8 Met. 132 ; Cleveland v. Burrell, 25 
 Barb. 532 ; Eecd v. Lukens, 44 Penn. St. 
 200 ; Scarlett v. Hunter, 3 Jones Eq. 84 ; 
 
 Taylor v. Kelly, 3 Jones Eq. 240 ; Sutter 
 V. Ling, 25 Penn. St. 466 ; Ten Eyck v. 
 Simpson, 1 Sandf. Ch. 244. If the build- 
 ings on the estate are destroyed by fire the 
 loss falls on the purchaser. McKechnie v. 
 Sterling, 48 Barb. 330. Where, however, 
 the contract is silent as to possession, the 
 vendor retains it until payment of the pur- 
 chase money. Irvin v. Bleakley, 67 Penn. 
 St, 28 ; Smith v. Patten, 1 Serg. & E. 84 ; 
 Baum V. Dubois, 43 Penn. St. 260. But 
 the vendor is not a complete trustee for 
 the purchaser, and those who claim under 
 him, until the whole contract is finally 
 completed. " And during that stage," 
 said Lord Hatherly L. C, " I apprehend 
 that other persons, by saying that they 
 have acquired an interest in the agreement, 
 will not stay the performance of the agree- 
 ment with the original purchaser." Mc- 
 Creight v. Foster, L. E. 5 Ch. App. 612.] 
 
 (c) Green v. Smith, ubi sup. ; PoUexfen 
 V. Moore, 3 Atk. 272 ; [Haughwout v. Mur- 
 phy, 7 C. E. Green, 531, 546.] 
 
 (c') [1 Story Eq. Jur. § 789; Champion 
 V. Brown, 6 John. Ch. 398, 403 ; Muldrow 
 </. Muldrow, 2 Dana, 387 ; Hampton v. 
 Edelen, 2 Harr. & J. 64 ; Hoagland u. 
 Latourette, 1 Green Ch. 254 ; Langdon v. 
 Woolfolk, 2 B. Mour. 105.] 
 
 (1) A lessee insured his house, the lease expired, and he contracted for a new lease. 
 Then the house was burned, and the ofBce insisted that at the time of burning it was 
 not the plaintiffs house; but it was held otherwise. Printed cases, D. P. 1730, 
 Neither a contract, nor even a mere conveyance, whilst the seller remains in possession, 
 will give a right of voting. Anclay v. Lewis, 2 Jur. N. S. C. P. 164. 
 
CH. V. § I.] purchaser's right UNDteR CONTRACT. 271 
 
 So that, if a person who has contracted to sell land, sells it to a 
 third person, the second purchaser, if he have notice, at the time 
 of the purchase, of the previous contract, will be compelled to 
 convey the property to the first purchaser.(c2)] 
 
 2. Therefore the- contract will not be discharged by the bank- 
 ruptcy of either the vendor (c?) or vendee,(e) and the observation 
 of the chief *baron in Goodwin v. Lightbody,(/) tha't if one 
 were to sell an estate and, before the conveyance should be com- 
 plete, were to become a bankrupt, his assignees' might choose 
 whether they would perform the contract or not, is not well 
 founded. But an act of bankruptcy, although no commission , 
 had issued, heretofore prevented the execution of the agreement, 
 as neither a buyer nor a seller could be assured that a commis- 
 sion might not issue in due time, in which case he could not 
 retain the estate or money against the assignees. (g-) But this is 
 now in part altered by, an act,(/i) which protects a purchaser who 
 bought without notice of a prior act of bankruptcy. (r) And a 
 payment (not being a fraudulent preference) to a seller who had 
 not notice of any act of bankruptcy committed by the purchaser, 
 seems to be protected. (A) As by bankruptcy, the estate vests in 
 the assignees, the bankrupt, to a bill filed against him before the 
 fiat may plead his subsequent bankruptcy. (Z) 
 
 (c2) [Hoagland a. Latonrette, 1 Green (/) Dan. 156; the observation was, 
 
 Ch. 254 ; Haughwout v. Murphy, 6 C. E. perhaps, made with reference to an act of 
 
 Green, 118; Langdon v. Woolfolk, 2 B. bankruptcy prior to tlie contract. 
 
 Monr. 105 ; Wallcer v. Cox, 25 Ind. 271 ; (g) Lowes u. Lush, Franklin v. Ld. 
 
 Baldwin v. Lowe, 22 Iowa, 367 ; see Cox Brownlow, 14 Ves. 547, 550. [See Rich- 
 
 V. Osborn, 1 A. K. Marsh. 311 ; Dunlap mond v. Gray, 3 Allen, 25 ; Webb </. 
 
 V. Stetson, 4 Mason, 349 ; Gibson v. Lair, Kirby, 7 De G., M.' & G. 376 ; post, 397, 
 
 37 Missou. 188 ; Wadsworth u. Wardell, note.] 
 
 5 John. Ch. 224; post, 182, 183, 749, note, (A) 12 & 13 Vict. v:. 106, s. 133 ; see 2 
 753, note. But the subsequent sale is Vict. c. 11, s. 12; see 3 Vict. u. 29, re- 
 valid between the parties, and upon a bill pealed by the first mentioned act ; 7 & 8 
 for a specific performance by the prior pur- Vict. c. 90, as to Ireland; Lackington v. 
 chaser, the subsequent purchaser will be Elliott, 8 Man. & Gra. 538. 
 
 entitled to any purchase money under the (t) Post, ch. 13, & ch. 22. 
 
 first contract remaining unpaid. D'WoIf (/c) Consider 6 Geo. 4, c. 16, s. 82 ; 2 & 
 
 V. Pratt, 42 III. 198.] 3 Vict. c. 29 (now repealed) ; and 12 & 13 
 
 {d) Orlebar v. Fletcher, 1 P. Wms. Vict. c. 106, s. 133 ; not repealed by 24 & 
 
 737. 25 Vict. c. 134, Sched. G. 
 
 (e) 3 Ves. 255; Bowles 'v. Eogers, 6 {I) Lane v. Smith, 14 Bear. 49. 
 Ves. 95, II. ; Whitworth v. Davis, 1 Ves. 
 
 6 Bea. 545. 
 
 [176] 
 
272 pubchaser's right under contract. [ch. v. § I. 
 
 3. The bankrupt act {m) enacts, that if any bankrupt shall 
 have entered into any agreement for the purchase of any estate 
 or interest in land, the vendor thereof, or any person claiming 
 under him, if the assignees of such bankrupt shall not (upon 
 being thereto required) elect whether they will abide by and 
 execute such agreement, or abandon the same, shall be entitled 
 to apply by petition to the lord chancellor, who may thereupon 
 order them to deliver up the said agreement, and the possession 
 
 -of the premises, to the vendor, or person claiming under him, or 
 may make such other order therein as he shall think fit. In in- 
 solvency, before the late act, if the assignee would not accept an 
 agreement by the insolvent for purchase which he was unable to 
 perform, and the agreement was deposited iri-court, it might, it 
 seems, be ordered to be delivered up to the seller, (n) 
 
 4. Where a contract for sale is overreached by an act of bank- 
 ruptcy before the conveyance, it seems to have been supposed 
 that the assignees may compel the purchaser to complete the 
 contract ; (o) but the case in which this point arose was decided 
 upon the ground that the purchaser submitted to perform the 
 contract, provided a good title could be made. 
 
 5. An agreement for sale, even with part of the money paid, 
 has no effect against an extent by the crown ;' for whilst no con- 
 veyance * having been executed the fee is in the seller, the agree- 
 ment has no operation against the extent.(jo) 
 
 6. And if one agree to purchase an estate, and take a contract 
 or covenant that the owner will sell that estate, and the latter 
 should sell or mortgage it to another person who has no notice, 
 the first purchaser has not any right to call on the second pur- 
 chaser for the legal estate, but the latter may protect himself by 
 the legal estate against the former.(g) 
 
 (m) 6 Geo. 4, c. 16, s. 76 (now re- (n) In re Williams, 26 L. T. Insol. 48. 
 pealed) ; 12 & 13 Vict. c. 106, s. 146, not (o) Marg. atstr. of Goodwin v. Light- 
 repealed by 24 & 25 Vict. c. 134, Sched. body, Dan. 153. 
 
 G. [See Bankruptcy Act, 1869, 32 & 33 (p) Eex v. Snow, 1 Pri. 220, n.; 2 Vict. 
 
 Vict. c. 71, s. 23, giving to the trustee c. 11, s. 8, 9, 10. 
 
 of the bankrupt's property, the right to (g) 8 Pri. 488, 489, per C. B. [See Den- 
 disclaim any property of the bankrupt nison v. Eobbinett, 2 Harr. & J. 55 ; Frost 
 which is of a burdensome or unsaleable v. Beekman, 1 John. Ch. 298 ; Benzien v. 
 description, including unprofitable con- Lenoir, 1 Car. L. K. 508. Notice to a 
 tracts. 1 Dart V. & P. (4th Eng. ed.) vendor of an assignment by the purchaser 
 235 236.] of an uncompleted contract does not con- 
 
 [177] 
 
CH. V. § I.] DEATH OF VENDOR OH VENDEE. 273 
 
 7. The death of the vendor or vendee before the conveyance (r) 
 or surrender,(s) or even before the time agreed upon for com- 
 pleting the contract, is in equity immaterial.(i) 
 
 8. If the vendor die before payment of the purchase money, 
 ■it will go to his executors, and form part of his assets ; (m) and it 
 will be liable to probate duty.(2;) If a vendor reserve the pur- 
 chase money, payable as he shall appoint by an instrument, 
 executed in a particular manner, and afterwards exercise his 
 power, the money will, as between his creditors and appointees, 
 be assets. (2/) If the contract is to be performed at a period 
 which takes place after the vendor's death, his heir at law, and 
 not his executor, is entitled to the intermediate rents. (z) Where 
 a purchaser borrowed part of the purchase money, which was 
 secured by a mortgage of the estate, and afterwards paid it off, 
 and took a transfer of the security, in the name of a trustee, 
 a general devise was held to pass the land discharged of the 
 money. (a) 
 
 9. If the estate is under a cohtract for sale at the date of the 
 will, a devise of it to be sold for a charity, will not give the pur- 
 chase money to the charity contrary to the mortmain act, as it 
 is called,(6) although this point, was in the first instance other- 
 wise decided.(c) 
 
 10. A vendee being actually seised of the estate in contem- 
 
 stitute the vendor a trustee for the as- (x) Attorney General v. Brunning, 4 
 
 signee of the contract. M'Creight v. H. & N. 94 ; 8 H. L. Cas. 243, reversed. 
 
 U.Foster, L. K. 5 Ch. Ap. 604; 39 L. J. (y) Thompson a. Towne, 2 Ver. 319, 
 
 Ch. 792.] ' 466 ; Cooke v. Wagster, 2 Sm. & Gif. 296 ; 
 
 (r) Paul V. Wilkins, Tot. 106. money in the hands of seller's agent to be 
 
 (s) Barker u. Hill, 2 Cha. R. 113. invested, passed by will as ready money 
 
 (f) Winged v. Lefebury, 2 Eq. Ca. Ab. and securities for money. 
 
 32 pi. 43 ; cases cited ante, note (5) ; [Mul- (s) Lumsden v. Eraser, 12 Sim. 263. 
 
 drow V. Muldrow, 2 Dana, 387 ; Livingston [The administrator of the vendor, who 
 
 V. Newkirk, 3 John. Ch. 312, 316; Euth- has given a bond for the conveyance of 
 
 erford V. Green, 2 Ired. Ch. 121.] land, may in Massachusetts be compelled 
 
 (w) Sikes V. Lister, 5 Vin. Ab. 541, pi. by bill in equity to convey it, although the 
 
 28; Baden u. Ld. Pembroke, 2 Ver. 213; estate of the vendor may be insolvent. 
 
 Bubb's case, 2 Free. 38; Smith 0. Hib- Root t). Blake, 14 Pick. 271.] 
 
 bard, 2 Dick. 712 ; Foley ... Percival, 4 (a) Pitt v. Pitt, 22 Beav. 294. This 
 
 Bro. C. C. 419; Gilb. Lex Prast. 243; was not laid down as a general Tule. 
 
 Eaton V. Sanxter, 6 Sim. 517; [1 Story (6) Harrison v. Harrison, 1 Rus. & My. 
 
 Eq. Jur. § 64 j; Craig v. Leslie, 3 Wheat. 71 ; 1 Taunt. 273. 
 
 563, 577.] (c) Middleton v. Spicer, 1 Bro. C. C. 
 
 201. 
 
 18 
 
274 WHEN TENANT VENDEE. [CH. V. § I. 
 
 plation of equity, must, as we shall hereafter see, bear any loss 
 which may happen to the estate between the agreement and 
 conveyance, and will be entitled to any benefit which may ac- 
 crue to it in the interim ; (d) but if he obtain possession of the 
 estate before he has paid *the purchase money, and begin to cut 
 timber, equity will grant an injunction against him.(e) 
 
 11. If the purchaser was tenant at w^ill of the estate, the con- 
 tract determines the tenancy ; (/) but at law a lease is not 
 affected by a mere contract to sell the estate to the tenant. (g") 
 But even if he was tenant for a term certain, the agreement 
 determines the relation of landlord and tenant, and in equity at 
 least the landlord cannot call for rent.(/«) Lord Eldon seems to 
 have laid down the rule thus generally, in a case in which he 
 had not to decide the point. But in a later case,(i) where a 
 tenant from year to year agreed to purchase, and was, by the 
 implied terms of the contract, entitled to a good title, it was 
 held that his tenancy did not cease. For where the purchaser is 
 already in possession as tenant from year to year, it is a question 
 of intention. If by the agreement, the defendant at a certain 
 time was to be absolutely a debtor for the purchase money, pay- 
 ing interest on it, and to cease to pay rent as tenant, a tenancy 
 at will would probably be created after that time, and the accept- 
 ance of such new demise would operate as a surrender of the 
 former interest. But if the agreement is conditional to purchase 
 only provided a good title should be made out, and to pay the 
 purchase money when that should have been done and the estate 
 conveyed, there is no room for implying any agreement to hold 
 as tenant at will in the mean time, the effect of which would be 
 absolutely to surrender the existing term, whilst it would be 
 uncertain whether the purchase would be completed or not. 
 
 12. The courts, therefore, will not hold a lessee's interest to 
 have determined to his prejudice, unless compelled to come to 
 that conclusion by the form of the contract ; nor would the 
 tenant be allowed to baffle the seller, and to withhold both the 
 rent and the purchase money. But it is proper upon a sale of 
 
 (d) Post, ch. 7. (g) Doe ^. Stanion, 1 M. & W. 701 ; 
 
 (e) Crockford K.Alexander, 15 Ves. 138. Tarte v. Darby, 15 M. & W. 601. 
 
 (/) Post, a, purchaser generally cannot (A) Daniels v. Davison, 16 Ves. 252, 
 be charged as tenant. 253. 
 
 [178] 
 
 (i) Doe V. Stanion, 1 M. & W. 695. 
 
CH. V. § I.] CONVEYANCE TO LESSEE : USE AND OCCUPATION. 275 
 
 an estate to the tenant to provide for the payment of the rent 
 until the completion of the purchase, if that be the intention. 
 When the purchase is completed, there will no longer be any 
 difficulty, for the purchaser will be made to pay interest or rent 
 for the time past, according to the provisions of the contract or 
 the rights springing out of it. 
 
 13. Where the relation of vendor and purchaser is formed by 
 a conveyance of the inheritance, that puts an end to the cove- 
 nants in the lease,(A;) and it is immaterial whether the lease was 
 granted by the one to the other or not ; it is sufficient that the 
 relation of landlord and tenant subsisted between them under 
 the lease. Lord Eldon observed, that undoubtedly the vendor 
 may concede the advantage * which by the law he derives from 
 the new relation of vendor and vendee, and the vendor may war- 
 rant, at the risk of damages, the privileges which he as lessor 
 had agreed to give to the lessee before he became purchaser. 
 But such a contract between vendor and vendee must be ex- 
 pressed in terms free from all ambiguity.(Z) And a mortgagee 
 purchasing the equity of redemption may change his character 
 by acting as if there was a set-off, in which case the mortgage 
 money would be deemed to be set off against the purchase 
 money ; (m) but a purchaser cannot set off against the purchase 
 money a demand upon an account to be taken of workings on 
 the very estate, (w) 
 
 14. Where a purchaser is let into possession on a treaty for 
 purchase and the seller cannot make a title, an action will not 
 lie against the purchaser if the occupation has not been bene- 
 ficial to him (o) beyond the mere protection from the inclemency 
 of the w^eatber ; and if he paid the money, of which the seller 
 might have made interest, although the jury expressly find that 
 the value of the house, during the occupation of the purchaser, 
 exceeds the interest of the money paid, yet the seller cannot 
 recover.(/3) Finally, in a case where the jury found that the 
 occupation had been beneficial, it was decided upon the general 
 ground that the seller could not recover for use and occupation. 
 
 {k) 1 Bligh, 69. („) Phipps V. Child, 3 Drew. 709. 
 
 {1} 1 Bligh, 76. (o) Heara v. Tomlin, Peak. Ca. 192. 
 
 (m) Wallis v. Bastard, 2 Eq. E. 508; 4 (p) Kirtland v. Pounsett, 2 Taunt. 4.5; 
 De G., M. & G. 251. Seaton v. Booth, 4 Ad. & El. 528. 
 
 [179] 
 
276 
 
 POSSESSION BY VENDEE. 
 
 [CH. V. § I. 
 
 Parties, it was said, may easily secure themselves by stipulating 
 for the event of a non-completion of the purchase in their con- 
 tvact.{q) A contract cannot arise by implication of law, under 
 circumstances, the occurrence of which neither of the parties 
 ever had in their contemplation. (r) 
 
 15. As the possession of the purchaser is in these cases law- 
 ful, being with the assent of the seller, an ejectment will not lie 
 against the purchaser without a demand of possession, and re- 
 fusal to quit,(s) unless upon possession being given to him he 
 
 (3) Winterbottom v. Ingham, 7 Ad. & 
 El. 611 ; Blackburn v. Smith, 2 Ex. 783 ; 
 Wright V. Colls, 13 Jur. 1056 ; a tenancy 
 was created, and a bonus paid, and the 
 latter was recovered, after two years' occu- 
 pation, as the lessor could not make the 
 lease. [In Little v. Pearson, 7 Pick. 301, 
 it appeared that the vendee of a piece of 
 land had paid the price of it and took a 
 promissory note for the sum paid from 
 the Vendor, which note was to be given 
 up to the vendor when he gave the vendee 
 a deed of the land. The vendee entered 
 and occupied the land nine years, until 
 the vendor died insolvent without having 
 made any conveyance of the land. The 
 vendee retained the note. The adminis- 
 trator of the vendor sued the vendee for 
 use and occupation of the land during the 
 nine years ; the court held that the action 
 would not lie. But where under an oral 
 agreement for the purchase of a house, the 
 vendee advanced the purchase money and 
 took possession, but before he obtained a 
 deed, the house was destroyed by fire, and 
 he therefore vacated possession of .the 
 ground, refused to accept a deed which 
 the vendor tendered to him immediately 
 after the fire, and commenced a suit against 
 the vendor in which he recovered back the 
 purchase money, it was held that the ven- 
 dee, during his occupation of the house; 
 was tenant at will, and was liable to the 
 ven'dor for use and occupation ; hut that 
 the vendee, by refusing to accept a deed 
 from the vendor, determined the tenancy 
 at will, and was no longer liable to him 
 for use and occupation. Gould v. Thomp- 
 son, 4 Met. 224.J 
 
 (r) See "Williams v. Shaw, Stevens v. 
 Guppy, 3 Eus. 178, n.; 171, inf. [See 
 / McNair v. Schwartz, 16 111. 24 ; Greenup v. 
 Vernon, 16 111. 26; Rogers v. Wiggs, 12 
 B. Mon. 504 ; Vanderheuvel v. Storrs, 3 
 Conn. 203 ; Hough u. Birge, 11 Vt. 190; 
 Carson v. Baker, 4 Dev. 220 ; Leggott v. 
 Metropolitan Kailway Co. L. R. 5 Ch. 
 Ap. 716;, Smith v. Stewart, 6 John. 46 ; 
 Bancroft v. Wardell, 13 John. 459 ; Jones 
 V. Jones, 2 Rich. 542 ; Brewer v. Craig, 3 
 Harr. 214 ; Doe v. Cochran, 1 Scam. 209 ; 
 Jones. V. Tifton, 2 Dana, 295 ; Bell v. 
 Ellis, 1 Stew. & P. 296 ; Howard v. Shaw, 
 
 8 M. & W. 118; Coffman v. Huck, 19 
 Miss. 435. If the contract fails of per- 
 formance by the fault of the vendee, who 
 has taken possession, he is liable for an 
 occupation rent. Smith v. Stewart, 6 John. 
 46 ; Bancroft u. Wardell, 13 John. 489 ; 
 Vanderheuvel u. Storrs, 3 Conn. 203 ; 
 Clough V. Hosford, 6 N. H. 234 ; Alton v. 
 Pickering, 9 N. H. 494, 498; Ayer v. 
 Hawkes, 11 N. H. 148 ; Davidson v. Ernest, 
 7 Ala. 817; Seabury v. Stewart, 22 Ala. 
 207; Howard t/. Shaw, 8 M. & W. 118; 
 Smith V. Wooding, 20 Ala. 324 ; Patterson 
 o. Stoddard, 47 Maine, 355 ; Hough v. 
 Birge, 11 Vt. 190; Johnson u. Beauchamp, . 
 
 9 Dana, 124. So where the contract has 
 been abandoned and the vendee still retains 
 possession, especially if notified that he will 
 be held to pay rent. Howard v. Shaw, 8 M. 
 & "W. 1 18 ; Dwight v. Cutler, 3 Mich. 566.] 
 
 (s) Doe V. Jackson, 1 B. & C. 448; 
 Right V. Beard, 13 East, 210 ; Hegan u. 
 Johnson, 2 Taunt. 148 ; Doe v. Lawder, 
 1 Star, 308 ; Doe v. Boulton, 1 Moo. & Mai. 
 148; Doe v. Waller, 1 C. & P. 595; Doe 
 
CH, V. § I.] WHERE TENANCY CREATED BY CONTRACT. 277 
 
 agreed to quit possession if he siiould not pay the purchase 
 money on a given day, or the like ; in which case an ejectment 
 will lie without notice on non-performance of his agreement.(s^) 
 The agreement operates in the same manner as a clause of re- 
 entry on breach of covenant in a lease.(<) 
 
 *16. A stipulation in a contract that until the conveyance was 
 made the purchaser should pay the seller at the rate of a fixed 
 sum per annum, in equal half yearly payments, was held to 
 create the relation of landlord and tenant, and the sum payable 
 was recoverable as rent.(M) But this depended on the clear in- 
 tention to create a tenancy at a fixed annual rent. A mere stip- 
 ulation on possession being given to a purchaser, for interest 
 until the completion of the contract, although the purchaser had 
 built upon the land, was treated as a tenancy at will only, and 
 the owner was allowed to maintain an ejectment without notice 
 to quit. The provision for payment of interest was not by way 
 of compensation for the occupation, but was quite independent 
 of it.(a;) Here we may observe that although the purchase 
 money is made payable by instalments running over many years, 
 the purchaser cannot deduct income tax from the payments ; 
 nor, as it seems, would he be liable to payment of income tax 
 upon the payments of the purchase xnoney.{t/) 
 
 17. If possession be given upon payment of part of the pur- 
 chase money, and interest is paid upon the remainder, twenty 
 years' possession by the purchaser is no bar in ejectment, be- 
 cause his possession was not adverse to the seller; (z) nor indeed 
 can a purchaser, generally speaking, set up his possession as 
 
 V. Miller, 5 C. & P. 595 j Doe v. Pulleij, 2 (x) Doe v. Chamberlaine, 5 M. & W. 14 ; 
 
 Bing. N. C. 749 ; Doe v. Stanion, 1 M. & see Doe v. Rock, Car. & Ma. 549 ; 4 Man. 
 
 W. 695 ; see, particularly, Doe v. Leeds & & Gra. 30 ; pi. 19, post; see Lord Camden 
 
 Bradford Ky. Co. 16 Q. B. 796 ; see Pol- o. Batterbury, 5 C. B. N. S. 808, a case of 
 
 len w. Brewer, 7 C. B. N. S. 371 ; [White great importance; [Jackson v. Camp. 1 
 
 V. Livingston, 10 Cush. 259; Stone u. Cowen, 610; Jackson v. Bard, 4 John. 
 
 Sprague, 20 Barb. 509.] 230; Kellogg v. Kellogg, 6 Barb. 116, 
 
 (si) [See Clough v. Hosford, 6 N. H. 128; Jackson v. Johnson, 5 Cowen, 74; 
 
 234; Smith v. Stewart, 6 John. 46.] Cooper v. Stower, 9 John. 331.] 
 
 {t) Doe V. Sayer, 3 Camp. 8 ; the same (ij) Lady E. Foley v. Fletcher, 3 H.. & 
 
 doctrine is extended to an agreement for a N. 769. 
 
 lease; Doe m. Smith, 6 East, 530 ; Doe v. (z) Doe v. Edgar, 2 Bing. N. C. 498 ; 
 
 , Breach, 6 Esp. 106. ch. 12, post. 
 
 (n)' Saunders v. Musgrave, 6 B. & C. 
 524 ; 9 Dow. & Ey. 529. 
 
 [180] 
 
278 purchaser's power over the estate, [ch. v. § I. 
 
 adverse ; and cutting of timber, and the like, would be referred 
 to his title as purchaser. (a) But a purchaser in possession as 
 tenant at will may transfer the possession so as to create a 
 tenancy at will under himself, and his own right may be barred 
 b}' lapse of time upon the interest thus created.(6) 
 
 18. A purchaser who before he obtained a specific perform- 
 ance had been let into possession, and then relinquished it to 
 the seller by mistake or misrepresentation, was afterwards al- 
 lowed to recover against the vendor in an action for use and 
 occupation. (c) 
 
 19. Where the conditions of sale stipulated for the delivery 
 of an abstract, &c., by the sellers, and that in case the purchaser 
 was let into possession before the payment of his purchase 
 money, he should be considered as tenant at will to the vendors, 
 and pay interest after the rate of 41. per cent, upon the amount 
 of his purchase money, as and for such rent ; the seller made 
 default in delivering of the abstract, and the purchaser was let 
 into possession — it was held : *1. That the non-delivery of an 
 abstract was not waived by the possession. 2. That use and 
 occupation would not lie, for the law would not imply that the 
 vendee had subjected himself to such a condition by being let 
 into possession while the title remained uncertain. 3. That the 
 action, if maintainable, ought not to have been for use and 
 occupation, but on the contract to pay four per cent., in the 
 nature of an agreement for a tenancy.(<i) And where power 
 was given, in a contract under seal, to a purchaser to leave the 
 purchase money as a charge upon the property for a given period 
 at interest, and the purchaser was to be deemed tenant to the 
 seller at a yearly rent equal to the interest, and the seller was 
 to have power to distrain, the instrument was held to be not a 
 lease, but a contract for purchase, not altered by the power of 
 distress.(e) 
 
 (a) Doe V. Caperton, 9 C. & P. 112. (d) Seaton v. Booth, 4 Ad. & El. 528. 
 
 (6) Doe V. Carter, 9 Q. B. 863 ; Doe u. The sale was in lots, and the sellers had 
 
 Rock, 4 Man. & Gra. 20 ; inf. ch. 12, sec- not a joint title. See the several judg- 
 
 tion 3, pi. 10. ments. [See Welch v. Andrews, 9 Met. 
 
 (c) Hall V. Vaughan, 6 Pri. 156; Win- 78.] 
 
 terbottomw. Ingham, 7 Q.B. 611; Tewr. (c) Hope a. Booth, 1 B. & Ad. 498 ; the 
 
 Jones, 12 M. & W. 12. purchaser had become bankrupt. 
 
CH. V. § I.J purchaser's power over the estate. 279 
 
 20. A purchaser let into possession before the conveyance may 
 recover for use and occupation against any person whom he lets 
 into possession, so as to create the necessary relation, although 
 he had not the legal estate. (/) 
 
 21. When the purchase is completed, the purchaser, if the es- 
 tate is let to a tenant from year to year, may recover the rent, 
 unless the tenant did not know of the sale, and had paid his 
 rent before to his lessor.(g-) The purchaser is entitled to the 
 benefit of covenants in a lease by the lessee with the vendor,(A) 
 and may recover for a breach before his time, if he is seised of 
 the reversion during the continuance of the term ; (i) and he 
 may, after notice to the tenant of the conveyance, distrain for 
 rent in arrear,(A;) whether the estate be freehold or leasehold. 
 But he cannot recover arrears of rent due before the assignment, 
 although it will carry the right to the whole of the accruing 
 quarter or half year ; (l) nor can he recover if he purchase after the 
 term ended for a breach during the term. K the seller has sold 
 the estate for a lower price because he is to have the remedy 
 against the tenant, he may sue on his own account ; if he has 
 received *the full price, he may sue as a trustee for his vendee. (m) 
 Although a purchaser obtains both the legal and equitable fee, 
 yet he will not at law be bound by a lease granted out of the 
 equitable fee.(re) 
 
 22. And here it may be useful to observe, that by the 4 & 5 
 
 (/; Hall V. Vaughan, 6 Pri. 157. Man. & Gra. 117 ; Doe v. Barton, 11 Ad. 
 
 [g) Ver. & Scri. 289 ; BircK v. Wright, & El. 307 ; Whitmore v. Walker, 2 Car. 
 
 1 T. Rep. 378; Lumley v. Eeisbeck, 15 & K. 615; Trent u. Hunt, 9 Ex. 14; "Wil- 
 
 East, 99 ; Eogers v. Humphreys, 4 Ad. & ton v. Dunn, 17 Q. B. 294 ; see Wyse v. 
 
 El. 299 ; Eraus v. Elliot, 9 Ad. & El. Myers, 4 Ir. C. L. R. 101 ; Carpenter v. 
 
 342 ; Guinness u. Burr, 1 Hay. & Jo. Parker, 3 C. B. 216 ; and see Cadle v- 
 
 735. Moody, an ejectment, and a singular case, 
 
 (A) Post, ch. 15. 7 Jur. N. S. 1249. 
 
 (j) Davis's case; Woodfall's L. & T. (/) Flight ». Bentley, 7 Sim. 149; Flinn 
 
 529 ; Lefroy v. Lee, 1 Hay. & Jo. 721. It v. Calow, 1 Man. & Gra. 589. 
 
 is not now necessary to hare the same re- (m) Johnson v. Churchw. of St. Peter, 
 
 version ; 7 & 8 Vict. c. 76, s. 12 ; 8 & 9 4 Ad. & El. 520. 
 
 Vict. c. 106, s. 9. (n) Doe v. Thompson, 9 Q. B. 1037 ; 
 
 (k) Moss B. Gallimore, Doug. 265; see Hickman t. Machin, 4 H. & N. 7J6; 
 
 Pope V. Biggs, 9 B. & C. 245 ; Waddi- Cuthbertson v. Irving, 4 H. & N. 742, 6 
 
 love V. Barnett, 2 Bing. N. C. 538 ; Brook H. & N. 135 ; lease by mortgagor good by 
 
 V. Biggs, lb. 572 ; Partington v. Wood- estoppel, 
 cock, 6 Ad. & El. 690 ; Brown v. Storey, 1 
 
 [182] 
 
280 OF THE POWER OF DEVISING. [CH. V. § I. 
 
 Will. 4, c. 22,(0) all rents service reserved on any lease by a ten- 
 ant in fee, or for a life interest, or by any lease granted under 
 any power (and which leases shall have been granted after the 
 passing of the act), and all other rents, &c., made payable or be- 
 coming due at fixed periods under any instrument executed after 
 the passing of the act, or (being a will or testamentary instru- 
 ment) that shall come into operation after the passing of the act, 
 are, upon the death of any person interested in such rents, or on 
 the determination by any other means of the interest of any 
 such person, made apportionable in favor of such person or his 
 personal representatives, unless it shall be expressly stipulated 
 that no apportionment shall take place. The act has received 
 this construction : 1. Under a lease made after the act, whether 
 by tenant in fee or for life, or under a power, there must be an 
 apportionment, although the life interest in respect of which the 
 apportionment is to take place was created by an instrument ex- 
 ecuted before the act. 2. There would also be an apportionment 
 of all-rents, whether created before or after the act, in which a life 
 interest was created by. an instrument subsequent to the stat- 
 ute. (^) 
 
 23. "Where a charge is well created upon a derivative interest, 
 e. g., an underlease, a purchaser cannot avoid the charge by pur- 
 chasing both the original interest and the interest derived out of 
 it,{q) nor can an agreement by a lessee to settle his lease be 
 affected in equity by his subsequent purchase of the fee, and a 
 devise of it by his will.(r) It is a consequence of the general 
 rule, that a purchaser may sell or charge the estate, before the 
 conveyance is executed, (s) and a judgment will bind his equita- 
 ble interest; [t) but a person claiming under him must submit to 
 
 (0) In re Markby, 4 My. & Cra. 484 ; (r) Rutledge v. Entledge, 2 Bli. N. S. 
 
 Browne v. Amyot, 3 Hare, 173 ; Carter v. 352 ; 1 Dow. N. S. 331. 
 
 Taggart, 16 Sim. 477 ; Knight v. Bough- (s) Seton v. Slade, 7 Ves. 265 ; 1 Ves. 
 
 ton, 12 Beav. 312 ; applies to leases after 220 ; 6 Ves. 352 ; Wood v. GrifSth, 12 
 
 the act under a power created before it. Feb. 1818; MS. 2 Bal. & Beat. 522 ; Nel- 
 
 Lock V. De Bnrgh, 4 De G. & Sm. 470 ; thorpe v. Holgate, 1 Col. C. C. 203. [See 
 
 Baillie v. Lockhart, 2 Macq. H. L. 258 ; Burton t. Rushton, 1 Desaus. 373 ; 1 
 
 Re Clulow's Trusts, 3 K. & J. 689 ; Hart- Story Eq. Jur. §§ 790, 793 ; 2 /6. § 1212 ; 
 
 ley V. Allen, 27 L. J., N. S. 621 ; Leath- Craig v. Leslie, 3 Wheat. 563 ; Peter v. 
 
 leyu. Trench, 8 Ir. Ch. Rep. 401 ; Cattley Beverly, 10 Peters, 532, 533.] . 
 
 V. Arnold, 1 J. & H. 651. (t) Baldwin v. Belcher, 1 Jo. & L. 18; 
 
 (p) Plummer v. Whiteley, 1 John. 585. Walcot v. Lynch, 13 Ir. E. R. 199 ; In te 
 
 (q) Haig V. Hogan, 4 Bli. N. S. 380. Cooke, 6 Ir. C. Rep. 430. 
 
CH. V. § I.] OF THE POWER OF DEVISING. 281 
 
 perform the agreement in toto.{u) And if the seller make a sec- 
 ond sale to a purchaser with notice, * the first purchaser can en- 
 force his contract against the seller and the second purchaser. (a;) 
 
 24. The power of devising is so greatly enlarged by the 1st 
 Vict. c. 26, whilst the old law is still applicable to all titles where 
 the will was made before the 1st of January, 1838, and not since 
 republished or revived by any codicil executed as required by the 
 above statute,' that it may be expedient, first, to consider the old 
 law, as it applies to the latter class of cases ; and, secondly, the 
 new law, which applies to all wills executed upon or subse- 
 quently to the 1st of January, 1838.(3^) First, then, as to the 
 law applicable to wills executed before the first of January, 1838, 
 and not republished or revived by any codicil since that date. 
 A man having contracted for an estate might devise it, if free- 
 hold, (z) before the conveyance ; and if copyhold, before the sur- 
 render ; (a) and that, although the estate was contracted for at a 
 future day,(6) or the contract was entered into by a trustee for 
 him ; (c) and the devisee would be entitled to have the estate 
 paid for out of the personal estate of the purchaser.(d) An 
 estate contracted for would pass by a general devise of all the 
 lands purchased by the testator, although he might have pur- 
 chased some estates which had been actually conveyed to him? 
 and would therefore of themselves satisfy the words of the will.(e) 
 On the other hand, it seems that estates recently purchased and 
 actually conveyed, would pass with estates contracted for, by a 
 
 (m) Dyer v. Pnlteney, Bar. Rep. C. (a) Davie v. Beardsham, 1 Cha. C. 39 ; 
 
 160. Greenhill v. Greenhill, 2 Ver. 679 ; Pre. C. 
 
 (x) Daniels w. Davison, 16 Ves. 240; 329; Atcherley v. Vernon, 10 Mod. 518; 
 
 Spence v. Hogg, 1 Col. C. C. 225 ; Potter 9 Ves. 510; Marston v. Eoe, 8 Ad. & El. 
 
 V. Sanders, 6 Hare, 1 ; as to making the u ; see Seaman v. Woods, 24 Beav. 372. 
 second purchaser a party, see Cutts v. (b) Trimuel's case, Mos. 265; Atcher- 
 
 Thodey, 1 Col. C. C. 223, et gu.; 13 Sim. ley v. Vernon, 10 Mod. 518; Gibson v. 
 
 246 ; CoUett v. Hover, 1 Col. C. C. 227 ; Ld. Montfort, 1 Ves. 485. 
 [ante, 175, & notes; post, 749, note.] (c) Greenhill v. Greenhill, 2 Ves. 679. 
 
 (y) See Sugd. Stat. (2d edit.) ch. 8, p. (d) Milner v. Mills, Mos. 123 ; Broome 
 
 328 ; where the statute is fully considered. , v. Monck, 10 Ves. 597 ; [Livingston v. 
 
 (z) Darris's case, 3 Salk. 85 ; Milner v. Newkirk, 3 John. Ch. 312 ; M'Kinnon v. 
 
 Mills, Mos. 123; AUeyn v. Alleyn, Mos. Thompson, 3 John. Ch. 307, 310; Malin 
 
 262 ; Atcherley v. Vernon,, 10 Mod. 518 ; v. Malin, 1 Wend. 625.] 
 Gibson v. Ld. Montfort, 1 Ves. 485. (e) Atcherley v. Vernon, 10 Mod. fel8. 
 
 [183] 
 
282 OF A DEVISE OF AN ESTATE CONTRACTED FOE. [CH. V. § I. 
 
 general devise of all the manors, &c., for the purchase whereof 
 the testator had already contracted and agreed.(/) (1) But a 
 devise of estates "for the purchase whereof the testator had only 
 contracted and agreed," would not pass estates actually con- 
 veyed to him before the will, unless, perhaps, they were recently 
 purchased, and the testator had not contracted for any other 
 estate. 
 
 25. If a man possessed of a term of years contract for the 
 purchase *of the inheritance, the term, by construction of equity, 
 instantly attends the inheritance ; and therefore, by a devise of 
 the estate subsequently to the contract, the fee simple would 
 have passed although not actually conveyed, and the term as 
 attendant on it.(g') And if the purchaser had, previously to the 
 purchase, made his will, by a general bequest in which the term 
 would have passed, yet the legatee would not be entitled to it, 
 although the bequest were not expressly revoked ; because the 
 term, by the construction of equity, attended the inheritance im- 
 mediately on the purchase of the fee. And the same rule, it 
 seems, -must prevail where the term is even specifically be- 
 queathed ; for if the fee had been actually conveyed, the con- 
 veyance would have operated as a revocation. (A) And although 
 the estate might, subsequently to the will, be conveyed, or sur- 
 rendered either to the purchaser,(i) or to a trustee for him, (A;) yet 
 that would not operate as a revocation of his will. The legal 
 estate would, of course, descend to the heir at law, but he would 
 in equity be deemed a mere trustee for the devisee.(Z) But in 
 analogy to the decisions upon legal estates,(TO) a devise of a free- 
 
 (/) St. John V. Bishop of Winton, 602 ; 6 Ves. 220 ; 8 Ves. 127 ; Prideux v. 
 
 Cowp. 94; liOfFt, 113, 349 ; 2 Black. 930. Gibbin, 2 Cha. C. 144. , 
 
 (g) Capel v. Glrdler, 9 Ves. 509 ; Cooke (h) Jenkinson v. Watts, Loflft, 609, mm. 
 
 V. Cooke, 2 Atk. 67 ; 8 & 9 Vict. c. 112; WdAts v. Fullarton, Dougl. 718; Eose v. 
 
 Sugd. Stat. 355, n. andPurch. (11th edit.) Cunynghame, 11 Ves. 5.50. 
 
 196, 207. (/) Davie v. Beardsham, 1 Cha. C. 39 ; 
 
 (h) Galton v. Hancock, 2 Atk. 424, Pigott v. "Waller, 7 Ves. 98. 
 
 427, 430. (m) Tickner v. Tickner, 3 Atk. 742 ; 
 
 (i) Parsons v. Freeman, 3 Atk. 741 ; Kenyon v. Sutton, 2 Ves. jr. 600; Nott v. 
 
 Amb. 116 ; 1 Ves. jr. 256 ; 2 Ves. jr. 429, Shirley, lb. 604, n. ; 2 Ves. jr. 429, 600 ; 6 
 
 (1) This, however, must depend upon the particular circumstances of each case. 
 The case referred to can scarcely be cited as a binding authority establishing a general 
 rule. It seems that the House of Lords was taken by surprise in afiirming the judg- 
 ment, 
 
 [184] 
 
CH. V. § I.] BEFORE THE IST VICT. 26. 283 
 
 hold estate contracted for was revoked by a subsequent convey- 
 ance to the usual uses to bar dower, (w) even where the contract 
 was by parol.(o) 
 
 26. Estates contracted for after the will would not pass by 
 it ; (jo) nor would lands pass by the will, although conveyed to 
 the purchaser subsequent to his will in pursuance of a contract 
 prior to the will, unless it was a valid binding contract.(^) 
 
 27. Any codicil executed according to the statute of frauds 
 amounted to a republication of a prior will of lands ; and, there- 
 fore, if a purchaser, previously to a contract, made a general 
 devise of all his lands, and after the contract executed a codicil, 
 according to the statute of frauds, unless an intention appeared 
 not to affect it,(r) the after purchased estate passed under the 
 devise in the will, * although legacies only were given by the 
 codicil, and no notice was taken of the estate. (s) 
 
 28. And if a purchaser, previously to a contract, by a will 
 executed according to the statute, directed his after purchased 
 lands to be conveyed to the uses of his will and made a pro- 
 vision for his heir at law, equity would put the heir to his elec- 
 tion, and not permit him to take both the descended estate, and 
 the provision made for him by the will.(<) 
 
 29. In purchasing, therefore, of an heir at law who claims an 
 estate conveyed to his ancestor after the date of his will, where 
 that will was executed before the 1st January', 1838, and not 
 
 Ves. 219; 8 "Ves. 115, 211 ; 10 Ves. 249, (r) Lady Strathmore v. Bowes, 7 T. R. 
 
 256 ; Luther u. Kidby, 3 P. Wms. 170, u. 482; 2 Bos. & Pul. 500; Smith u. Bear- 
 
 (n) Eawlins v. Burgis, 2 Ves. & Bea. mer, 3 Yo. & Jer. 278 ; Monypenny a. 
 
 382; BuUin v. Fletcher, 1 Ke. 369; 2 Bristow, 2 Rns. & My. 117; In re Earl's 
 
 Sugd. Pow. 6 ; Poole v. Coates, 2 Dm. & Trust, 4 K. & J. 673. 
 
 War. 493 ; Plowden v. Hyde, 2 Sim. N. (s) Barnes v. Crowe, 1 Ves. jr. 486 ; 
 
 S. 171 ; reversed by the lords justices, 2 Pigott v. Waller, 7 Ves. 98 ; Goodtitle u. 
 
 De 6., M. & G. 684, which placed the law Meredith, 2 Mau. & Sel. 5 ; Hulme v. Hey- 
 
 on a better footing ; see Schroder v. Schro- gate, 1 Mer. 285 ; [Haven v. Foster, 14 
 
 der, 1 Kay, 578. ' Pick. 541 ; 1 Jarman Wills (4th Am. ed.), 
 
 (o) Ward v. Moore, 4 Mad. 368. 206-209, & notes.] 
 
 (/)) Langford v. Pitt, 2 P. Wms. 629; («) Thellussonw. Woodford, 13 Ves. 209; 
 
 Alleyn u. AUeyn, Mos. 262; Pottery. Sugd. Pow. 584 (8th edit.) ; Back u. Kett, 
 
 Potter, 1 Ves. 437 ; 1 Atk. 573 ; White v. Jae. 534 ; Johnson v. Telford, 1 Bus. & My. 
 
 White, 2 Dick. 522 ; [M'Kinnon v. Thomp- 244 ; Churchman v. Ireland, 4 Sim. 520 ; 
 
 son, 3 John. Ch. 307.] 1 Bus. & My. 250 ; Greenwood v. Penny, 
 
 (q) Rose v. Cunynghame, 11 Ves. 50; 12Beav.403; Schroder «. Schroder, 1 Kay, 
 
 [see Smith v. Jones, 4 Ohio, 115.] 578. 
 
 [185] 
 
284 OF REVOCATION OF A DEVISE. [CH. V. § I. 
 
 revived or republished since that day, the purchaser should be 
 satisfied, 1st, That the contract was not entered into by the 
 testator previously to making his will. 2dly, That no codicil 
 was afterwards executed by him, according to the statute of 
 frauds, by which the lands, although not in contemplation, 
 passed. And, 3dly, if the will affects to pass all the estates 
 which the vendor might thereafter acquire, that the heir at law 
 does not take any interest under the will. These observations 
 apply also to titles depending upon purchases made from heirs 
 at law, although completed by conveyance. 
 
 30. As to copyholds, — by the old law, if a man made a dis- 
 position by will of all his copyhold estates generally, and after- 
 wards purchased other copyhold estates, and surrendered them 
 to the uses declared by his will,{M) or even to the uses declared 
 by his will of and concerning the same,{x) the after purchased es- 
 tates would pass under the general devise, although the will was 
 not republished. Therefore, where a copyhold estate has been 
 surrendered to the use of a will, and the purchaser is buying of 
 the heir at law, who claims in the absence of any devise subse- 
 quently to the purchase by his ancestor (the case not falling 
 within the late act), he must be satisfied that the estate did not 
 pass under any general devise in a will prior to the purchase. 
 The act for rendering a surrender to a will unnecessary,(2/) ren- 
 dered it unlikely that this point should again arise, and now the 
 doctrine is wholly confined to wills or codicils made before the 
 1st January, 183S, for by the late statute, whatever copyholds a 
 man may have at his death, whether there is a custom to devise 
 them or not, and whether he has been admitted or not, and of 
 coiirse, therefore, although not surrendered to the will, will pass 
 by it.(^) 
 
 *31. From the time of the contract, the purchaser, and not 
 the vendor, being owner of the estate in equity, it followed that 
 if a man devised his estate, and afterwards contracted for the 
 sale of it, the devise would thereby be revoked in equity.{a) 
 
 (m) Heylyn k. Heylyn, Cow. 130 ; Lofft, (y) 55 Geo. 3, c. 192. 
 
 604. (») Infra. 
 
 (x) Att. Gen. v. Vigor, 8 Ves. 256; (a) Ryder w. Wager ; Cotter r. Layer, 2 
 
 Smart v. Prujean, 6 Ves. 565 ; Sugd. P. Wms. 332, 623 ; 2 Ves. jr. 436 ; Vaw- 
 
 Gilbert TTses, n. (5), 72. ser v. Jeffrey, 16 Ves. 519 ; 3 Rus. 479. 
 
 [186] 
 
CH. V. § I.] OF REVOCATION OF A DEVISE. 285 
 
 Where an estate was by a will directed to be sold, and the 
 money to be paid to certain persons, and the testator himself 
 afterwards sold the estate, the legatees were held not to be enti- 
 tled to the money produced by the sale.(&) A purchase by the 
 testator may operate to annul a condition in his will; a father 
 gave one of his sons a legacy, but he was to convey his interest 
 in remainder in an estate expectant upon the father's death to 
 another son; the father afterwards bought the interest of the 
 son, the legatee, in the estate, and the latter was held entitled to 
 his legacy, (c) 
 
 32. But if equity would not execute the contract from its 
 nature, it seemed that there would be no revocation. Where a 
 man contracts for the sale of his estate, he intends to increase 
 his personal estate and not to benefit his heir ; and if the court 
 will not execute the contract specifically, "the personal estate 
 takes nothing and the devisee can have lost nothing." (d) 
 Whether an abandonment of a contract would prevent it from 
 operating as a revocation of a prior will seems to be a more 
 doubtful point. In Knollys v. Alcock, Lord Eldon said, he did 
 not admit, that if there is an agreement in equity, which at the 
 moment was a completely operative revocation, a subsequent 
 abandonment would of necessity set up the will. He did not 
 say whether it would be so or not, for he could not raise the 
 question in the case before him, as the agreement was never 
 abandoned. Sir Wm. Grant upon the same point said, that he 
 very much doubted whether the abandonment of the contract in 
 the testator's lifetime would set up the will without a republica- 
 tion. But where the will was revoked at the testator's death by 
 the contract, of course no subsequent event could render the will 
 operative and effectual.(e) In the first case in the books,(/) at 
 
 (6) Arnald v. Araald, 1 Bro. C. C. 401 ; v. Littler, 1 Black. 345 ; see Goold v. 
 
 2 Dick. 645; Kenbold u. Roadknight, 1 Teagne, 5 Jur. N. S. 116; a very strict 
 
 Eus. &. My. 677 ; Taml. 492 ; Tebbott u. construction, gu. and consider the case. 
 
 Vowles, 6 Sim. 40. (e) Bennett u. Ld. Tankerville, 19 Ves. 
 
 (c) Walker y. Walker, 2 De G., F. & J. 179 ; Andrew v. Andrew, .3 'Sm. & Gif. 
 255. 130; 8 De G., M. & G. 336 ; 25 L. J. N. 
 
 (d) Onions v. Tyrer, 1 P. Wms. 345 ; 7 S. 753, affirmed. Knight Bruce L. J. not 
 Ves. 3?9 ; Kuollya v. Alcock, 7 Ves. 558 concurring. 
 
 (an appeal was compromised) ; Major v. (f) Montague v. Jeffries, 1 Ko. Ab. 615 
 Gowland, 2 Dick. 563; 2 Ves. jr. 436; (P.), pi. 3; 'Good right v. Glazier, 4 Bur. 
 Savage v. Taylor, Gas. t. Tal. 234; Glynn 2512. 
 
286 OF A DEVISE OF AN ESTATE CONTRACTED FOR. [CH. V. § I. 
 
 law it was holden that such a covenant without more was not 
 any revocation of the will ; because perhaps the devisor's inten- 
 tion would alter before performance of the covenant. At law, 
 therefore, a contract does not revoke the will ; but a conveyance 
 *in pursuance of the contract would of course operate as a 
 revocation, or to speak more technically, as an ademption. It 
 may be contended, that the same rule must prevail in equity, 
 and that a contract for sale ought not to affect the validity of a 
 prior will, until it is carried into execution, or, which in equity 
 is tantamount to a conveyance, until the court decree a specific 
 performance of it. While an agreement rests in fieri, and the 
 validity of it has not been acknowledged by a decree, it seems 
 equitable that the owner should be at liberty, with the concur- 
 rence of the other party, to alter his mind. Indeed, in the ab- 
 sence of intention there seems to be no weighty distinction 
 between an agreement which has been abandoned, and an agree- 
 ment which equity will not perform. Why should not a mere 
 agreement be deemed ambulatory till it is completed, when it is 
 clear that the parties may rescind the agreement, and the estate 
 of the devisor is not altered so as to effect a revocation at law? 
 
 33. The seller after the contract, and before the conveyance, 
 was not considered so absolutely a trustee as to prevent the 
 estate from passing by a devise by him, subsequently to the con- 
 tract, of his real estate to trustees to sell.(g') But where an 
 estate under contract was devised by the description of '.' all that 
 his estate at F. H. which he had lately contracted to sell to A.," 
 it was held that the legal estate only passed to enable the devisee 
 to carry the contract into execution, and that the devisee was 
 not entitled to the purchase money beneficially.(A) In a later 
 case, where A. demised part of his estate in the parish of B., 
 with an option to purchase in the lessee, and then, without notic- 
 ing the lease, devised all his estates in that and other places, and 
 all other his real estates, as to part (which was comprised in the 
 lease) to his son and his children in strict settlement, and no 
 option was declared until after the testator's death, the court, 
 without meaning to suggest any doubt of the decision in the 
 
 (g) Wall V. Bright, 1 J. & W. 490. 24 L. T. 5, where it was treated as a trust 
 
 (A) KnoUys v. Shepherd, 1 J. & W. 499 ; estate. 
 Sugd. H. of L. 223 ; see Thirtle v. Vaughan, 
 
 [187] 
 
CH. V. § I.J OF A DEVISE OF AN ESTATE CONTRACTED FOR. 287 
 
 former case, held that as the testator had made specific mention 
 of the estate, the purchase money was subject to the same lim- 
 itations as had been declared of the estate.(i) 
 
 34. When an estate is contracted to be sold, it is in equity 
 considered as converted into personalty from the time of the 
 contract, and this notional conversion takes place, although the 
 election to purchase rests merely with the purchaser. (A) And 
 even a repurchase *by the testator, who reentered into possession 
 and retained the legal estate, and only a deposit had been paid 
 on the original purchase money, was held not to prevent the 
 revocation.(^) But one of the two learned judges before whom 
 the case was heard dissented from this view ; and this is inde- 
 pendent of the late act. 
 
 35. In these cases, until the option is declared, the rents belong 
 to the heir or devisee. Where in a common contract, to be com- 
 pleted by a future fixed day, " all rent and other profits to accrue 
 in the mean time," were to belong to the vendor, his heirs, exec- 
 utors, and administrators, and the vendor died before the day, it 
 was held, that the intermediate rents belonged to the heir, as the 
 words showed an intention that the estate should be kept as 
 realty up to the time when it was to be converted absolutely 
 into personal estate.(OT). 
 
 36. So if a man agree to sell a given quantity of standing 
 timber per annum, to be chosen by the buyer, although the owner 
 die, and the option is in the buyer, yet the timber cut after the 
 owner's death will be part of his personal estate.(«) (1) Where 
 
 (i) Drant v. Vause, 1 Yo. & Col. C. C. N. S. 116, which qu. ; Weeding v. Weed- 
 
 580. ing, 1 J. & H. 424. [See Craig v. Leslie, 3 
 
 (k) Lawes v. Bennett, 7 Ves. 436 ; 14 Wheat. .563, 577 ; Postell v. Postell, 1 
 
 Ves. 596 ; 1 Cox, 167 ; 16 Ves. 253, 254, Desans. 173.] 
 
 Tiom. Douglas v. Whitrong ; Ripley v. (I) Andrew v. Andrew, 3 Sm. & Gif. 
 
 Waterworth, 7 Ves. 425 ; In re Crofton, 1 130 ; 8 De G., M. & G. 336 ; see the case 
 
 Ir. Eq. R. 204; Townley «. Bedwell, 14 fully considered, Sugd. on Statutes, 2d 
 
 Ves. 591 ; Pegg v. Wisden, 16 Beav. 239 ; edit. 360. 
 
 Collingwood v. Ilow, 3 Jur. N. S. 785 ; 26 (m) Shadworth v. Temple, 10 Sim. 184. 
 
 L. J. N. S. 649 ; GooM v. Teague, 5 Jur. - (n) 7 Ves. 437 ; 1 Cox, 171. 
 
 (1) Right of preemption under a will, will be enforced; Ld. Radnor v. Shafto, 11 
 Ves. 455 ; Dawson u. Dawson, 8 Sim. 346 ; but the conditions imposed as to notice 
 of intention, payment of purchase money, &c., must be strictly complied with ; Brooke 
 V. Garrod, 3 K. & J. 608 ; 2 De 6. & J. 62 ; see Alderson v. White, 3 Jur. N. S. 1316 ; 
 and qu. and consider the terms of repurchase in that case. The decree has been re- 
 
 [188] 
 
288 OF A DEVISE OF AN ESTATE CONTRACTED FOE. [CH. V. § I. 
 
 a vendor intends the estate, as between his real and personal 
 representatives, to be deemed real estate, a declaration to that 
 effect should be inserted in the agreement for sale. 
 
 * 37. Where the contract is binding at the death of the vendor, 
 although the purchaser by subsequent laches lose his right to a 
 specific performance, yet the estate will belong to the next of kin 
 and not to the heir at law.(o) Real estate may be converted 
 into personalty subsequently to a will devising it, by a compul- 
 sory sale under an act of parliament. (^) 
 
 -38. But to return to the cases of devises before or after con- 
 tracts ; secondly, wills executed upon or subsequently to the 1st 
 
 (o) Curre v. Bowyer, 5 Bear. 6, n. Galliers v. Allen, lb. 577, n. ; see Haynes 
 
 (p) Ex parte Hawkins, 13 Sim. .569 ; v. Haynes, 1 Drew. & Sm. infra, pi. 43. 
 
 versed, 2 De G. & J. 97. A right of preemption, under a will, directing the estate to 
 be sold, was held to be lost by a compulsory sale to a railway company. In re Cant's 
 Est. 1 Giff. 12; but this was overruled, 4 De G. & J. 503. Where trustees have power, 
 which they execute, to fix a fair and reasonable value, the court will not interfere, 
 Edmonds v. Millett, 20 Beav. 54. As to a right of preemption of timber which a 
 lessee is authorized to cut down, see Goodtitle v. Saville, 15 East, 87 ; Doe v. Abel, 2 
 Mau. & Sel. 541 ; and as to such a right in a real estate belonging to a partnership, 
 Cookson V. Cookson, 8 Sim. 529 ; Essex v. Essex, 20 Beav. 442 ; and as to enlargiag 
 the time by conduct, Pyke v. Northwood, 1 Beav. 152 ;' Pegg v. Wisden, 16 Beav. 239. 
 A claim for repurchase must be literally pursued ; Joy v. Birch, 4 CI. & Ein. 89 ; Major 
 V. Ward, 5 Hare, 598 ; Ogden v. Battams, 1 Jur. N. S. 791 ; Ponsford v. Hankey, 2 
 Giff. 604 ; 7 Jur. N. S. 929, 938. A right of preemption in a tenant is at an end 
 where the tenant's interest in a part of the landxis bought by the lessor ; Sparrow w. 
 Cooper, 1 Hay. & Jo. 404; see In re Houghton, 11 Ir. Ch. Rep. 136. For the con- 
 struction of a covenant conferring a right of preemption, consider Stocker v. Dean, 16 
 Beav. 161 ; RoUeston v. New, 4 K. & J. 640 ; and as to the validity of a right of pre- 
 emption, unlimited as to time, S. C. [See Russell v. Eastern Railroad Co. 5 Allen, 
 290.] A right to purchase in a lease may be independent of the rest of the contract, so 
 that it may be enforced, although the lease is forfeited ; Green ii. Low, 22 Beav. 625. 
 What amounts to an election by a vendor to take a lease of the property under a power 
 reserved by the contract, see PoweU w.-Lovegrove, 2 Jur. N. S. 791 ; 8 De G., M. & G. 
 357 ; and where the option to purchase is lost by non-claim aiid lunacy, see Rowlands 
 V. Evans, 8 Jur. N. S. 88 ; upon whom the notice should be served, see Woods v. Hyde, 
 31 L. J. N. S. 295. [Where A. agreed to offer a lot of land to B. at a fixed price, if 
 he should wish to sell it within a certain period of time, it was held that A. was bound 
 to offer a deed of the land to B. before selling it to a third party within that time; that 
 it was no excuse for failing to make such offer that B. had not tendered the price, or 
 had no means with which to buy the land ; and that upon a sale of the laud -by A. to 
 a third person without the offer to B., B. could bring suit for breach of the agreement, 
 without waiting for the expiration of the time named, or making such tender. Kener- 
 son V. Henry, 101 Mass. 152. J 
 
 [189J 
 
CH. V. § I.J SINCE THE IST VICT. C. 26. • 289 
 
 January, 1838, speak and take effect with reference to the prop- 
 erty comprised in them, as if they had been executed immedi- 
 ately before the death of the testator, unless a contrary intention 
 appear.(g) And they pass all property, legal as well as equita- 
 ble, and contingent as well as vested interests, even a hope of 
 succession, if it be realized in the testator's lifetime, and also 
 rights of entry, and copyholds as well as freeholds, and whether 
 there is any custom to' devise them or not, and although the de- 
 visor shall not have surrendered the same to the use of his will, 
 or not have been admitted ; (r) and although the testator became 
 entitled to them subsequently to the execution of his wiil.(s) 
 
 39. And no conveyance or other act done subsequently to the 
 execution of a will relating to any estate comprised in it (except 
 an act of revocation by a subsequent marriage,(i) or by another 
 regular will or codicil, or by destroying the will),(M) will prevent 
 the operation of the will with respect to such estate or interest 
 as the testator has power to dispose of by will at the time of his 
 death ; {z) in short, the will speaks, as we have already observed, 
 as to the property as if it had been executed immediately before 
 the testator's death. (y) 
 
 40. The operation of the act is to confirm the right to devise 
 an estate acquired by contract, whether freehold or copyhold, and 
 the law is still the same as to a devise by a man who has con- 
 tracted for the fee having already a term of years : the equitable 
 fee would pass, and the term attend it.(z) 
 
 41. This statute of 1 Vict, altogether alters the law as to revo- 
 cation by the mode of conveyance in pursuance of a contract ; 
 
 {q} 1 Vict. c. 26, o. 24; inf.ch. 12, s. 1. Brimner u. Sohier, 1 Cush.'llS; Loveren 
 
 [In most of the United States it has been v. Lamprey, 22 N. H. 434.] 
 
 provided by statutes, that after acquired (r) Matthew v. Osborne, 13 C. B. 919, 
 
 land shall pass by the will, if such was the where the will was made before the 1st 
 
 intent of the testator. In some of the Jan. 1838. 
 
 States this intent must appear on the face (s) Sect. 3. 
 
 of the will; in others, it is inferred from a (i) Sect. 19. 
 
 general devise of all the testator's estate, (w) Sect. 20. 
 
 or unless a contrary intent appears. 3 {x) Sect. 23. 
 
 Cruise Dig. by Mr. Greenleaf, vol. 6, tit. (y) Sect. 24; Lloyd v. Davis, 15 C. B. 
 
 38, Devise, eh. 3, § 32, in note ; 1 Jarman 76 ; Dixon v. Rowan, 9 Ir. Ch. Eep. se.') ; 
 
 Wills (4th Am. ed.), 305, note (3), and Sugd. Stat. 359, n. 
 
 cases cited; Gushing o. Alwyn, 12 Met. (z) See further, Sugd. Stat. ch. 7. 
 169; Pray v. Waterston, 12 Met. 262; 
 
 VOL. I. " 19 
 
290 OF A JDEVISE OF AN ESTATE CONTRACTED FOE. [CH. V. § I. 
 
 if there are suflSLcient words to pass the estate in the will, although 
 made before the contract, no possible form of conveyance giving 
 to the * purchaser the beneficial interest in the estate can prevent 
 it from passing by the will: it is unimportant, therefore, that the 
 estate is conveyed to uses to bar dower ; for whatever interest 
 the testator has in the estate at his death, will pass by the will 
 whenever executed. And questions cannot arise upon the new 
 act in regard to putting an heir to his election, where the testator 
 assumes to devise his after purchased estates, (a) for they will 
 actually pass, even under a general gift, and the heir at law will 
 have no title. 
 
 42. In purchasing, therefore, from an heir at law, whose ances- 
 tor survived the 31st of December, 1837, whether there was a 
 contract or not, it must be ascertained that he did not execute at 
 any time after that date any will or codicil in the presence of two 
 witnesses,^ and attested by them and signed by them in his pres- 
 ence ; (b) for if he did by such a will devise his real estate, it is 
 not likely that the heir at law has any right, for not only are 
 words of inheritance now supplied, but lapsed devises of real 
 estates fall into the residue, and such a will, whenever executed, 
 passes the property which the testator has at his death. 
 
 43. As to dispositions by vendors; under the old law, as we 
 have seen, a contract by a man to sell his estate revoked his will 
 in equity, although not at law,(c) and the rule has been held not 
 to be varied by the statute ; (d) and the same rule prevails, al- 
 though the sale is under compulsion by a railway. (e) (1) Where 
 an estate stood limited to one for life, with remainders in tail to 
 
 (a) Supra, $. 185. War. 99 ; Emuss v. Smitli, 2 De G. & Sm. 
 
 (i) H. Sugd. Wills. 722; In re Manchester &c. liy. Co. 19 
 
 (c) Supra,-^. 186. Beav. 365; 3 Dru. & War. 99; 13 Sim. 
 
 (d) ITanar v. Ld. Winterton, 5 Beav. 1 ; 569. 
 
 Moor V. Eaisbetk, 12 Sim. 123 ; H. Sugd. (e) In re Manchester &c. Ey. Co. 19 
 Wills, 53 ; Saunders v. Cramer, 3 Dru. & Beav. 365. 
 
 (1) It was observed in Haynes v. Haynes, that in the case referred to, the conversion 
 ■was effected, not by a mere notice .to treat, but by an actual contract entered into by 
 the landowner, and that all that the writer meant was, that if a- testator sold the land 
 it would effect conversion, even though the contract for sale originated in the exercise 
 of the compulsoiy powers of the act. This is the correct view; 1 Drew. & Sm. 460, 
 per V. C. Kindersley. The text was and is silent as to the effect of a notice, upon 
 which the case of Haynes v. Haynes depended. Vide supra, pp. 80, 85. 
 
 [190] 
 
CH. V. § I.J OF A DEVISE OF AN ESTATE CONTRACTED FOE. 291 
 
 his sons, with the reversion in fee to himself, and he devised ail 
 his real estates which carried the reversion in fee to uses, and 
 then a railway company took a portion of the estate, and he 
 subsequently died without issue, his will was deemed operative, 
 and the purchase money was directed to be laid out in another 
 estate to be settled to the uses of his will.(/) 
 
 44. If an agreement be such as a court of equity will not carry 
 into execution, it is clear that the property will by the new law 
 pass to the devisee, whatever might have been the true rule be- 
 fore.(g-) It * was observed in the case of Haynes v. Haynes, 
 that the only reason why a contract by the owner of land for the 
 sale of it to another operates to effect conversion is that a court 
 of equity will compel him specifically to perform his contract. 
 There is no conversion at law simply because a court of law 
 does not enforce specific performance. Conversion as arising 
 from a contract to sell is merely and exclusively the consequence 
 of the application by a court of equity of the doctrine of spe- 
 cific performance. Where there can be no specific performance 
 there can be no conversion. If the owner of land has contracted 
 to sell his land to another, and the case is such that for any 
 reason whatever a court of equity would, if a bill were filed, 
 refuse to decree specific performance, in that case there is no 
 conversion. (A) 
 
 45. So of course where the contract is abandoned, the devise 
 will not now be affected, (i) because, notwithstanding the act 
 done, the will still operates on all the interest which the testator 
 had power to dispose of by will at the time of his death, and 
 speaks as to the property as at that time. And it would now 
 seem that a devise to a man of an estate contracted by the de- 
 visor to be sold would require stronger words than those used in 
 Knollys v. Shegherd, to make the devisee a mere trustee instead 
 of taking beneficially.(A;) The law does not appear to be altered 
 in such cases as Laws v. Bennett,(/) for there the will operates 
 according to the intention at the testator's death, and its operation 
 
 (/) In re De Beauvoir, 2 De G., F'. & (i) Supra, p. 186 ; see Nugee v. Chapr 
 J. 5. man, 29 Bear. 288. 
 
 (jf) Supra, p. 186. (i) Supra, p. 186, 
 
 {h} Per Kindersley V. C. 1 Drew. & (/) Supra, p. 187. 
 Sm. 451, 452. ^ 
 
 ri9i] 
 
292 CONVEYANCE AFTER DEVISE : DEATH OF PURCHASER. [CH. V. § I. 
 
 is afterwards changed by- the subsequent conversion of the prop- 
 erty, with which operation, or its effect upon the will, the statute 
 does not seem to interfere. 
 
 46. But in conclusion, we may observe, in the words of an- 
 other writer,(»j) that the act goes much further than simply to 
 leave the will to operate on such interest as the testator has left 
 in him by the effect of a conveyance subsequently to his will, for 
 the will is to operate upon such estate or interest as the testator 
 has power to dispose of by will at the time of his death. If, there- 
 fore, a man were to make his will disposing of his real estate, 
 and afterwards were to convey the whole fee to uses or upon 
 trusts, relimiting or leaving any interest in himself, that interest 
 will pass by his will ; but still further, if he were afterwards to 
 convey to a purchaser his remaining interest in the estate, and at 
 a subsequent period to repurchase the property, and die seised of 
 it, it would pass by his will to the devisee.(l) 
 
 *47. In a case like that of Arnald v. Arnald, where the testa- 
 tor devises his estate to trustees to sell, and pay the money to 
 certain legatees, and afterwards sells the estate himself, this will 
 still, as under the old law, be an ademption. (w) 
 
 48. In regard to cases common to the old and the new law, 
 where an estate contracted for after the will does not pass by it, 
 the heir at law will be entitled to have the estate purchased for 
 his own benefit out of the personal estate of his ancestor,(o) al- 
 though he unite in himself the three characters of vendor, heir, 
 and executor ; [p) but the estate will be assets in his hands. 
 
 49. So if the purchaser die intestate, the heir will in like man- 
 ner be entitled' to have the estate purchased for him ; and if his 
 ancestor die before the conveyance is executed, the heir may de- 
 vise, charge, or sell the estate, in the same manner as the ancestor 
 himself might have done,{q) and it will now be subject to the 
 dower of the purchaser's widow unless he has 'deprived her of 
 
 (m) H. Sugd. Wills, 52. (o) Milner v. Mills, Mos. 123; 2 P. 
 
 (n) Moor v. Eaisbeck, 12 Sim. 123; Wms. 632; 3 P. Wms. 224; Broome v. 
 
 Fowler v. Willoiighby, 3 Sim. & Stu. 354 ; Monck, 10 Ves. 597. 
 
 qu. when was the contract rescinded'? de- (p) Coppin v. Coppin, Sel. C. C. 28; 2 
 
 monbtrative legacy; Newbold v. Eoad- P. Wms. 291. 
 
 knight, 1 Kus. & My. 677. [q) Langford v. Pitt, 2 P. Wms. 629. 
 
 (1) The observations of the master of the rolls in Cowper v. Mantell, 22 Beav. 223, 
 « ere expressly confined to the old law. 
 n 001 
 
CH. V. § I.J RIGHTS OF HEIRS AND EXECUTORS : NO TITLE. 293 
 
 that right.(r) But if the ancestor was a trustee for sale and sold 
 to himself, equity would not execute the contract in favor of the 
 heir at law against the next of kin.(s) 
 
 50. If the executor complete the purchase, and take the con- 
 veyance in his own name, he will be a trustee for the heir or 
 devisee.(f) And if the assets cannot be got in, and the real rep- 
 resentative pay for the land, he may call upon the personal estate 
 to reimburse him.(M) So, if the personal estate is insufficient to 
 perform the contract, and the agreement is on that account re- 
 scinded, the heir or devisee will, it should seem, be entitled to 
 the personalty as far as.it extends. And if by reason of the 
 complication of the testator's affairs, the purchase money cannot 
 be immediately paid, and the vendor rescinds the contract, yet 
 on the coming in of the assets, the devisee of the estate con- 
 tracted for, may compel the e;xecutor to lay out the purchase 
 money in the purchase of other estates for his benefit.(a;) 
 
 51. If the heir not being entitled to have the estate paid for 
 •ut of the personal festate, apply it in payment of the purchase 
 money, the personal estate will be entitled to a charge on the 
 estate for the amount,(2/) and the right of the heir or devisee to 
 have recourse to the personal estate is not affected by the late 
 act.(z) 
 
 * 52. But if upon the death of 'the vendor a title cannot be 
 made, or there was not a perfect contract, or the court should 
 think the contract ought not to be executed, there is no conver- 
 sion of real estate into personal; and therefore the estate will 
 go to the heir at law of the vendor.(a) So if upon the death of 
 the purchaser a title cannot be made, or there was not a perfect 
 contract, his heir or devisee will not be entitled to the money 
 agreed to be pdid for the lands, or to have any other estate 
 bought for him.(6) For although the purchaser himself, if alive, 
 
 (r) 3 & 4 Will. 4, c. 105, s. 2, post, ch. {z) Hood v. Hood, 3 Jur. N. S. 684 ; 
 
 12, pi. 1. infra, ch. 12, pi. 1. 
 
 (s) Ingle u. Eichards, 28 Beav. 361. (a) Lacon v. Mertins, 3 Atk. 1; Att 
 
 (i) AUeyn v. Alleyn, Mos. 262. Gen. v. Day, 1 Ves. 218; Buckmaster v. 
 
 (u) 10 Ves. 614, 615. Harrop, 7 Ves. 341 ; 8 Ves. 274 ; Eose v. 
 
 {x] Whittaker v. Whittaker, 4 Bro. C. Cunynghame, 11 Ves. 550. 
 
 C. 31 ; Broome v. Monok, 10 Ves. 597. (i) Green v. Smith, 1 Atk. 573 ; Broome 
 
 (y) Savage v. Carroll, 1 Bal. & Beat. u. Monck, 10 Ves. 597 ; Morgan v. Hol- 
 
 265 ; post, ch. 21. ford, 1 Sm. & Gif. 101 ; Savage u. Carroll, 
 
 < • 1 Bal. & Beat. 265 ; sup. 
 
 [193] 
 
294 EIGHTS OF HEIRS WHERE NO TITLE. [CH. V. § I. 
 
 might elect to take the estate with the bad title,(c) or where there 
 is an outstanding interest with a compensation ; (d) yet, where 
 he is dead, the inquiry must be, whether at his death a contract 
 existed, by which he was bound. That alone can give the heir 
 of the purchaser a right to call for the personal estate to be 
 applied, or the personal representative of the vendor a right to 
 call upon his heir. The question must be the same, whether 
 a purchase or a sale is insisted on : Was the ancestor himself 
 bound ? In a case (e) of some difficulty, where the bill was 
 tiled by the heir at law, his ancestor had contracted for an estate, 
 to a small portion of which a good title could not be made at 
 his death, for it was held under a parol exchange by a tenant for 
 life, without the concurrence of trustees who had a power of 
 sale and exchange; but as a conveyance had been obtained six 
 years after the purchaser's death, and also after the institution 
 of the suit, from the trustees of the settlement, with the concur- 
 rence of the tenant for life who had succeeded to the estate for 
 a money consideration, but before the chief clrek's certificate, 
 the master of the rolls decreed in favor of the heir, for the an- 
 cestor would have been bound, if then alive, and he could not 
 assume that the person who had completed the title would not 
 have done so in the lifetime of the intestate. The case was one 
 of great difliculty, but the court admitted fully the general rule, 
 and concurred that the matter is to be determined as it stood at 
 the death of the intestate, and that if a title could not have been 
 made then, it could not be made subsequently. If the title was 
 in a person between whom and the vendor there was no privity, 
 so that the vendor had no claim to it, the court agreed that he 
 could not buy the land, and then insist upon a specific perform- 
 ance. The case, under the circumstances, wa^ considered not 
 to be governed by the general rule. Where a man had a right 
 of preemption of an estate under a will, and did not accept the 
 offer, the real representative was not * enabled to call upon the 
 personal estate to pay for the estate.(/) So where upon a parol 
 treaty, the purchaser filed his bill for a specific performance of 
 it, and the vendor submitting to perform it, a decree was made 
 
 (c) Western v. Eussell, 3 Ves. & E. 187. ' {e) Garnett v. Acton, 28 Beav. 333. 
 
 (d) Collier v. Jenkins, Yo. 295 ; 7 Ves. (/) Earl of Radnor v. Shafto, 11 Ves. 
 344, 345. 448. 
 
 [194] 
 
CH. V. § n.] DEVISE OF ESTATE CONTRACTED ,FOR. 
 
 295 
 
 that the purchaser should pay the money into the bank by a 
 given day, or the bill should be dismissed ; and the purchaser 
 paid the money according to the decree ; it was determined, that 
 the estate did not pass by a general devise in his will, which was 
 made prior to the payment of the money.(;o-) Such a will would 
 now operate to pass the estate contracted for, although the con- 
 tract was concluded after the execution of the will.(A) If a 
 contract for sale, or what amounts to it, was signed by the seller 
 and accepted by the purchaser, although not signed by him, it 
 seems to admit of no doubt that he might have devised the 
 property by his will, which would not have been affected by his 
 subsequently regularly signing the contract.(f) In most cases, 
 since the statute of Victoria, this point would not arise, as the 
 will, if there were sufficient words, ^ould pass any subsequently 
 acquired estate. 
 
 53. But if an estate directed to be bought, but not actually 
 contracted for, is not, or cannot be bought, the money must be 
 laid out in other lands, for the benefit of the devisee.(/c) Where 
 a testator intends that the devisee of the estafe under contract 
 shall have another of equal value, in case a good title cannot be 
 made to the one purchased, an express declaration to that effect 
 should be inserted in the will. 
 
 SECTION n. 
 
 OF OTHER RIGHTS AND LIABILITIES ARISING OUT OF CONTRACTS. 
 
 1. Where purchaser liable to existing mort- 
 
 gage debt; new statute. 
 
 2. Stopping proceedings In ejectment. 
 
 3. Further advances to mortgagor after a 
 
 sale by him. 
 
 4. Redemption of mortgages on distinct es- 
 
 tates. 
 6. Loss of mortgage deed. — Production of 
 mortgage deed. 
 
 Assignee of mortgagee subject to the ac- 
 count; fraudulent mortgagee. 
 
 Annuity the price of an estate, how to 
 be secured. 
 
 Purchaser to indemnify against charges; 
 as where he buys a lease, or an equity 
 of redemption — Liability of subpur- 
 chaser. 
 
 Incumbrances may be kept on foot. 
 
 (g) Gaskarth a. Ld. Lowther, 12 Ves. 
 107 ; Duckle v. Baines, 8 Sim. 525 ; Ld. 
 Shrewsbury v. Ly. Shrewsbury, 18 Jur. 
 397. 
 
 [h) 1 Vict. c. 26. 
 
 (i) See Morgan v. Holford, 1 Sm. & Gif. 
 
 101. 
 
 (it) Whittaker v. Whittaker, 4 Bro. C. 
 C. 31 ; 2 Atk. 369 ; Broome v. Monck, 10 
 Ves. 597. 
 
296 
 
 PURCHASE OF EQUITY OF EEDEMPTION. [CH. V. § II. 
 
 10. Sales of equity of redemption. 
 
 11. After contract abandoned, purchaser in 
 
 possession paying off mortgage cliarged 
 as mortgagee in possession. 
 *12. Legal and equitable rights in the 
 crown. 
 
 13. Agreement to give real security enforced. 
 
 14. Sale of minerals. 
 
 15. Purchaser of legacy entitled to stock in- 
 
 vestment. 
 
 16. Fraud in sale of life policy. 
 
 17. WTiere power to repurchase malies a 
 
 loan. 
 
 18. Payment to be made on condition. ' 
 
 19. Eepurchase on a condition. 
 
 20. Notice to purchase binding under act of 
 
 parliament. 
 
 21. Purchase by lessee of underlease, or of 
 
 part. 
 
 22. Eight of tenant for life of leasehold to 
 
 purchase money. 
 
 23. Purchaser bound by grant of steward- 
 
 ship for life. 
 
 1. Formerly where an equity of redemption was purciiased, 
 unless the mortgage money formed part of the consideration 
 money for the estate, or the purchaser by communication with 
 the mortgagee, clearly took the mortgage debt on himself as 
 between his heir and executor, it was considered a charge on 
 the land ; the mere covenanting with the mortgagor to pay the 
 debt did not make it his personal debt, and consequently his 
 personal estate, as between the heir and executor, was only the 
 auxiliary fund for payment of it.(a) This was an exception to 
 the general rule,, but now the law is altered, and it is provided 
 generally as to any person dying seised after 31 December, 1854, 
 of any land or other hereditament charged with a mortgage, who 
 shall liot by will or other document have signified any contrary 
 or other intention, that the heir or devisee shall not be entitled 
 to have the mortgage debt discharged out of the personal estate 
 or any other real estate of such person, but the lands so charged 
 shall be primarily liable thereto, but this is not to affect the 
 
 (a) Evelyn v Evelyn, 2 P. Wms. 659 ; 
 Hamilton v. Worley, 2 Ves. jr. 62 ; Woods 
 u. Huntingford, 3 Ves. 128 ; Buller v. Bul- 
 ler, 5 Ves. 517 ; .Waring v. Ward, 5 Ves. , 
 670 ; 7 Ves. 332 ; Ld. Oxford v. Ly. Rod- 
 ney, 14 Ves. 417 ; Barham v. Ld. Thanet, 
 3 My. & Kee. 607 ; Bickham v. Crutwell, 
 3 My. & Cra. 763 ; Rochfort v. Lord Belvi- 
 dere, 1 Wal. & L. 45 ; Barry v. Harding, 
 1 Jo. & L. 475 ; Barham v. Earl of Claren- 
 don, 10 Hare, 126 ; Bond D.England, 2 K. 
 & J. 44 ; [1 Story Eq. Jur. § 576 ; 4 Kent 
 (11th ed.), 421 ; Cumberland v. Codring- 
 ton, 3 John. Ch. 229 ; Keyzey's case, 9 
 Serg. & R. 72 ; McLearn v. McLellan, 
 
 [195] 
 
 10 Peters, 625; King w. Whitely, 1 Hoff. 
 Ch. 477 ; Tweddell v. Tweddell, 2 Bro. 
 C. C. (Perkins's ed.) 101, 108, notes ; 
 Billinghurst v. Walker, lb. 608, & note 
 (a) ; Butler v. Butler, 5 Ves. (Sumner's 
 ed.) 534, note (a); 2 Story Eq. Jur. § 
 1248; 2 Jarman Wills (4th Am. ed.), 400- 
 405, & notes ; Ancaster ». Meyer, 1 Bro. 
 C. C. 454, and notes to this case in 1 Lead. 
 Cas. in Eq. (3d Am. ed. [530] 630 et seg., 
 642-646; Halsey v. Reid, 9 Paige, 173; 
 Mitchell V. Mitchell, 3 Md. Ch. 71; 
 Thompson v, Thompson, 4 Ohio, N. S. 
 333.] i'TUlt^ L/^fd 
 
CH. V. § II.] PURCHASE OF EQUITY OF EEDEMPTION. 297 
 
 mortgagee, nor to apply to any will or document made before 
 1 January, 1855 ; (b) but this act does not deprive the heir or 
 devisee of the right to have purchase money paid out of the 
 personal estate.(c) The act extends to copyholds, and to a 
 mortgage made before the 1st of January,, 1855, reserving the 
 equity of redemption to the mortgagor and his heirs,(fi?) and 
 also to an equitable mortgage by deposit and memorandum. (e) 
 It does not extend 'to the vendor's lien for purchase money 
 unpaid. (/) 
 
 * 2. Where a mortgagor has agreed to convey his equity of 
 redemption to the mortgagee, the proceedings in an ejectment 
 by the mortgagee cannot be stopped under the 7 Geo. 2, c. 20,(1) 
 for the effect' of it vsrould be to strip the mortgagee of his legal 
 title, which might let in a posterior equitable right to the preju- 
 dice of the mortgagee, though he should thereafter obtain a decree 
 for the performance of the agreement.(g-) But the relief will be 
 granted to the mortgagor, where the mortgagee has not taken 
 any steps to complete his contract for the purchase of the equity 
 of redemption. (A) 
 
 3. An advance by a mortgagee of a further sum of money to 
 the mortgagor, without notice of the sale of the equity of re- 
 demption, would bind the purchaser, although his conveyance is 
 registered. (i) This should be guarded against by a notice. (f^) 
 
 (b) 17 & 18 Vict. c. 113; Power v. Sm. 182, as to the effect of the mortmain 
 
 Power, 8 Ir. Ch. Rep. 340; Greated v. act. 
 
 Created, 26 Beav. 621 ; Smith v. Smith, 10 (/) Barnwell v. Iremonger, 1 Drew. & 
 
 Ir. Ch. Rep. 89, 461 ; Woolstencroft v. Sm. 255. 
 
 Woolstencroft, 2 Giff. 192, 2 De G., F. & {g) Goodtitle v. Pope, 7 T. R. 185. 
 
 J. 347 ; Stone v. Parker, 1 Drew. & Sm. {h) Skinner v. Stacy, 1 Wils. 70. 
 
 212; Spiith v. Smith, 7 Jur. N. S. 1140; (i) Inf. ch. 22. 
 
 Lady Langdale v. Briggs, 8 De G., M. & (ii) [But registration, under the registry 
 
 91; ^QBisbi*!.,^J[ins„2j£& H. 194. acts in the United States, is held to be 
 
 (cf Hooaf. Brood, 3 Jur. N. S. eSl. constructive notice to all persons. 4 Kent 
 
 ((/) Piper V. Piper, IJ. & H. 91. (1 1th ed.), 174, 175 ; 1 Craise Dig. by Mr. 
 
 (e) Pembrooke v. Friend, 1 J. & H. Greenleaf, vol. 2, tit. 15, Mortgage, ch. 
 
 132; see Dacre v. Patrickson, 1 Drew. & 3, § 36, note, p. 106, note (1); 1 Story 
 
 Eq. Jur. § 419, in note.] 
 
 (1) See now 15 & 16 Vict. i;. 76, ss. 219, 220, enabling courts of law, with certain 
 exceptions, in ejectment to compel the mortgagee to reconvey upon being paid off. 
 The 4 & 5 W. & M. c. 16, depriy.es a mortgagor making a second mortgage without 
 giving notice in writing to the second mortgagee of'the first mortgagee of his equity of 
 redemption. The statute executes its own purpose. Kennard v. Futvove, 2 Giff. 81. 
 
 [196] 
 
298 PURCHASE OF EQUITY OP REDEMPTION. [CH. V. § II. 
 
 4. Another reason why a purchaser cannot safely buy an 
 equity of redemption without the concurrence of the mortgagee, 
 even where the mortgage is not intended to be paid off, is, that 
 he may be compelled to redeem anothpr estate ; for a mortgagee 
 of two distinct estates upon distinct transactions from the same 
 mortgagor, is entitled to hold both, even against the purchaser 
 of the equity of redemption of one of the mortgaged estates, 
 without notice of the other mortgage, until payment of the whole 
 money due on both mortgages.(A;) The mortgages must, how- 
 ever, be of the legal estate,(/) and to the same person ; and 
 although the doctrine has been sometimes doubted, (m) yet it 
 appears to be perfectly settled. (w) There is no authority that 
 mortgages to different persons, although afterwards united in 
 one person, fall within the rule. If it should be so held, yet 
 clearly the union must take place before the equity of redemp- 
 tion of one estate is transferred to a purchaser, in order to render 
 him liable to redeem both mortgages.(l) But there is no reason 
 why a further obstacle should be interposed in the way of a 
 
 (Ic) Ireson v. Denn, 2 Cox, 425 ; White 195 ; Brazee v. Lancaster Bank, 14 Ohio, 
 
 V. Hillacre, 3 Yo. & Col. 597 ; Farebrother 318; Green v. Tanner, 8 Met. 411, 423; 
 
 «. Wodehouse, 23 Beav. 18; Tweedale v. Burnet v. Denniston, 5 John. Ch. 35; 
 
 Tweedale, 23 Beav. 341 ; Tassell v. Smith, Averill v. Guthrie, 8 Dana, 82 ; Thomas's 
 
 2 De G. & J. 713. [As to the doctrine of App. 6 Casej, 678 ; Watts v. Symes, 1 
 
 tacking one mortgage to another in cases De G., M. & G. (Am. ed.) 240, note (2).] 
 
 of real estate, see 1 Story Eq. Jur. §§ 412- (Z) Jones v. Smith, 2 Ves. jr. 376. 
 
 421; 4 Kent (11th ed.), 176, et seq. ; 1 (m) ExparteKmg,l Atk. 300; Willie 
 
 Lead. Gas. in Eq. (3d Am. ed.) 594 [494] v. Lugg, 2 Ed. 78. 
 
 c( sey., and notes to Marsh ti. Lee ; 1 Dan. (n) Titley u. Davis, Amb. 733, where 
 
 Ch. Pr. (4th Am. ed.) 213. In the United both mortgages were by the same deed; 
 
 States the doctrine of tacking mortgages Ex parte Carter, Amb. 733 ; Tribourg v. 
 
 so as to afifect mesne incumbrances duly Lord Pomfret, lb. n. (2); Roe v. Soley, 2 
 
 registered, Is very generally exploded, as Black. 726; Cator v. Charlton, CoUett v. 
 
 against the policy of the registry acts. Munden, 2 Ves. jr. 377 ; see Chilton u. 
 
 See 4 Kent (11th ed.), 178 ; 1 Washb. R. Carrington, 15 C. B. 95 ; [1 Cruise Dig. 
 
 P. (1st ed.) 540, 541; 1 Story Eq. Jur. by Mr. Greenleaf, vol. 2, tit. 15, ch. 3, 
 
 § 419, note; Osborn v. Carr, 12 Conn. §§ 54, 55.] 
 
 (1) See and consider Wliite v. Hillacre, 3 Yo. & Col. 597, where a devise of the two 
 estates to different persons, before the mortgages became united in the same person, 
 was held to prevent the right ; but Alderson B. added " there might perhaps have been 
 some ground for the plaintiff's argument if the assignment had been made in the lifetime 
 of the testator." And there the owners of the equity of redemption were all volunteers ; 
 see Grugeon v. Gerrard, 4 Yo. & Col. 119; Coote on Mortg. (3d edit;) 401 ; Marcon v. 
 Bloxam, 11 Ex. 586. 
 
CH. V. § II.] PURCHASE OF EQUITY OF EEDEMPTION. 299 
 
 purchaser. In a recent case, however, where A. mortgaged one 
 estate to B. and another to C, and *then mortgaged a pjirt of 
 one estate and the whole of the other to D., who gave notice of 
 his mortgage to the two original mortgagees, and of course had 
 a right to redeem either mortgage separately, but the two mort- 
 gages became united in one person subsequently to the mortgage 
 of both estates to D., it was held that D. must be considered as 
 having deliberately incurred the risk which he ran from the 
 securities coalescing, and both estates becoming thereby affected 
 by both mortgages. The notice was held to be immaterial, and 
 upon a bill of foreclosure D. was held liable to redeem both 
 mortgages.(o) Here it will be observed that D. was the mort- 
 gagee of both estates, and the case, perhaps, may not be con- 
 sidered as affecting the original statement of the law in this 
 placitum, which is still retained. 
 
 5. If the mortgagee have lost the mortgage deed, yet the pur- 
 chaser, like every other mortgagor, would be compelled to pay 
 the money upon a reconveyance, and an indemnity against the 
 loss of the deed.(^) Nor can a mortgagee be compelled to 
 produce his deeds before he is paid oflF, unless he consents to a 
 sale. (9) 
 
 6. An assignment should not in any case be taken of a mort- 
 gage, without the privity of the mortgagor as to the sum really 
 due ; for although it undoubtedly is not necessary to give notice 
 to the mortgagor that the mortgage has been assigned, (r) yet the 
 assignee takes subject to the account between the mortgagor 
 and the mortgagee, although no receipt be indorsed on the mort- 
 
 (0) Vint M. Padgett, 1 Gif. 446, 2 De G. Welch v. Priest, 8 Allen, 165. Hoar J. 
 
 & J- 611. said : "In the absence of fraud, a convey- 
 
 {p) Stokoe u. Eobsonj, 3 Ves. & Bea. ance by the party who appears on the 
 
 54; 19 Ves. 385; Shelmardine v. Harrop, record to be the owner of the mortgage, 
 
 6 Mad. 41 . should be sufficient to protect a purchaser 
 
 (q) Anon. Mose. 246 ; Langton v. Lang- who has no actual or constructive notice 
 
 ton, 1 Jur. N. S. 1078 ; 7 De G., M. & G. of title in any other." See Wolcott v. 
 
 30; see Wickenden v. Rayson, 6 De G., Winchester, 15 Gray, 461 ; Wyckoff v. 
 
 M. & G. 210. Eemsen, 11 Paige, 564; New York Life 
 
 (r) 9 Ves. 410. [The title of a mort- Ins. &c. Co. u. Smith, 2 Barb. Ch. 82 ; 
 
 gagee to land may be coiiveyed by a deed James v. Morey, 2 Cowen, 246 ; S. C. 6 
 
 of release, duly executed and recorded, John. Ch. 417 ; Jacksoi; o. Blodget, 5 
 
 to one who has no notice of a prior Cowen, 202.] ^^ ^ifi.etv. ^ ^^'■^P 
 
 tfcHrecorded assignment of the mortgage, ^ytui /> S f ' 
 
 197] 
 
300 PURCHASE OF INCUMBERED ESTATE. [CH. V. § II. 
 
 gage deed for any part of the mortgage money which has been 
 actually paid off.(s) Where a solicitor fraudulently obtained a 
 second mortgage from his client, representing the deed as a cov- 
 enant to produce deeds, and the solicitor afterwards transferred 
 his mortgage without the concurrence of the mortgagor, his 
 client, to a bond fide lender, the mortgage was set aside at the 
 suit of the client.(<) 
 
 7. Where an estate is sold for an annuity, it must be secured, 
 not only upon the estate, but also by the bond of the purchaser, 
 and a judgment to be entered up against him.(M) In Ker v. 
 Clobery, * which came before the court upon a petition between 
 the heir and executor, it appeared that the equity of redemption 
 was sold to the mortgagee for the mortgage money, and a life 
 annuity to be paid to the seller and his wife, and the survivor of 
 them, but nothing was said as to the mode in which the annuity 
 was to be ^ecured. It was held to be a purchase of the equity 
 of redemption, subject to the annuity.{a;) 
 
 8. A purchaser of an estate subject to incumbrances must in- 
 demnify the vendor against them, although he did not expressly 
 engage to do so. This applies to the purchase of a leasehold 
 estate,(j>) and to the purchase of an equity of redemption. («) 
 And if a purchaser who has not obtained a conveyance sell to 
 another, the second purchaser is bound to indemnify him against ■ 
 any costs incurred in proceedings for his benefit.(a) 
 
 9. Although the seller's contract is to sell an incumbered es- 
 tate free from incumbrances, yet the purchaser may if he please, 
 with the concurrence of the incumbrancers, keep the incum- 
 brances on foot, so that no additional expense be thrown on the 
 seller, and that he be released from his liability to pay the in- 
 cumbrances. (6) 
 
 (s) Matthe-jvs v. Wallwyn, 4 Ves. 118 ; given, inf. c. 19 ; Yonge v. Furse, 20 Beav. 
 
 9 Ves. 264 ; Perrall v. Boyle, 1 Ir. Eq. E. 380. 
 391 ; [James v. More)', 2 Cowen, 246.] (x) See Yonge v. Furse, 20 Beav. 380. 
 
 (t) Vorley v. Cooke, 1 Gif. 230. (y) Pember u. Mathers, 1 Bro. C. C. 
 
 (u) Remington v. Deverall, 2 Ans. 550 ; 52 ; Greenfield v. Bates, 5 Ir. Ch. Eep. 
 
 qu. as to the right to a judgment; Bower 219 ; purchase by a solicitor. 
 0. Cooper, 2 Hare, 408 ; Ker v. Clobery, (z) 7 Ves. 337 ; Crafts v'. Tritton, 8 
 
 V. C. 27 Mar. 1819, MS. ; Dixon v. Gay- Taunt. 365 ; 2 Moo. 411. 
 fere, 17 Bear. 421 ; 21 Beav. 118; 1 De (a) Wood v. Griffith, 12 Feb. 1818,. 
 
 G. & J. 655; where a bond was to be MS. 
 
 (b) Cooper V. Cartwright, 1 John. 679. 
 
 [198] 
 
CH. V. § II.J PUKCHASE OF EQUITY OF REDEMPTION. 301 
 
 10. If a man mortgages property and afterwards sells the 
 equity of redemption to a third person, who then sells the prop- 
 erty with the concurrence of the mortgagee, such mortgagee 
 cannot, if he has allowed the [second] purchaser of the equity 
 of redemption to receive the purchase money, sue the original 
 mortgagor for the amount of the money he has thus allowed to 
 be paid to the purchaser, (c) 
 
 11. Where upon a sale of a leasehold estate subject to a mort- 
 gage the purchaser entered into possession, and, the contract 
 having been abandoned, paid off the mortgage and continubd in 
 possession, without giving notice that he abandoned the contract, 
 he was charged from the latter period as a mortgagee in posses- 
 sion with annual rests.(d) 
 
 12. Where the crown had, 1st, a legal mortgage of a lease- 
 hold estate by transfer, 2dly, an equitable mortgage by transfer, 
 and 3dly, an equitable mortgage by advances, and agreed to 
 purchase the lease itself, and the purchase money was not suffi- 
 cient to pay the two first mortgages and the whole of the ad- 
 vances, the crown was held bound to apply the purchase money 
 according to the priorities of the mortgages, which left the crown 
 a simple contract creditor only for the surplus of the advances.(e) 
 Of course the purchaser could not have been compelled to com- 
 plete the purchase without payment of all that was due ; the 
 lease had been resold by agreement at a loss, and the * rights of 
 the parties to the money alone remained to be disposed of. The 
 decision was reversed in the Lords, for the sellers were bound to 
 pay oft' the mortgages.(/) 
 
 13. An agreement by a seller to give a real security as an in- 
 demnity to a purchaser will be specifically enforced. (g-) 
 
 14. Upon a sale of minerals, where the payment depends upon 
 the quantity gotten, the vendor is entitled by implication to enter, 
 &c<, to ascertain the quantity gotten. (A) 
 
 15. An assignment of a legacy as sterling money will carry 
 the stock in which it is invested under a will.(i) 
 
 , (c) Palmer v. Ilendrie, 28 Beav. 341. [g] Walker v. Barnes, 3 Mad. 247. 
 
 ((/) Patch w. Wild, 7 Jur.N. S. U81. (/s) Blakesley u. Whieldon, 1 Hare, 
 
 (e) Greenwood v. Taylor, 14 Sim. 505. 176. 
 
 (/) Att. Gen. u. Cox, Pearce v. Att. [i] Lucas v. Bond, 2 Ke. 136. 
 Gen. 3 H. L. Cas. 240, inf. ch. 13, s. 2. 
 
 [199] 
 
802 
 
 purchase: not loan. 
 
 [CH. V. § II. 
 
 16. "Where the particulars of a policy on a life did not state 
 that the seller had only a redeemable interest ill the life, and the 
 interest was afterwards redeemed, it was held that, after the pur- 
 chase was completed, the purchaser could not recover damages 
 for the fraud, as the practice of the office was to pay such poli- 
 cies. (&) 
 
 17. A bond fide purchase of an interest out and out, will not 
 be converted into a loan, on account of a power to repurchase 
 being given to the seller, although at an advanced price ; but, if 
 the purchaser, instead of taking the risk of the subject of the 
 contract (e. g. an annuity) on himself, take a security for repay- 
 ment of the principal, that will vitiate the transaction, and render 
 it a mere mortgage security.(Z) Where a mortgage was not to 
 
 (it) Barber v. Morris, 2 Moo. & Mai. 
 62. 
 
 (I) Verner v. Winstanley, 2 Sch. & Lef. 
 393; Sevier v. Greenway, 19 Ves. 413; 
 Neal V. Morris, Beat. 597 ; Fee v. Cobine, 
 11 Ir. Eq. R.406; Bellu. Carter, 17 Beav. 
 11 ; a trust for sale to secure a debt held 
 to be a mortgage, qu. ; Holmes v. Matth- 
 ews, 9 Moo. P. C. 413, as to evidence of 
 subsequent dealings; Alderson o. White, 
 2 De 6. & J. 97. [A sale with an agree- 
 ment for a repurchase within a given time, 
 is totally distinct from, and not applicable 
 to mortgages. Such conditional sales or 
 defeasible purchases, though narrowly 
 watched, are valid, and to be taken strictly 
 as independent dealings between strangers. 
 4 Kent (nth ed.), 144. If it be doubtful 
 whether the parties intended a mortgage, 
 or a conditional sale, courts of equity in- 
 cline to consider the transaction a mort- 
 gage, this being the more just and equita- 
 ble construction, and one which tends to 
 prevent oppi'ession. Poindexterw. McCan- 
 non, 1 Dev. Eq. 373 ; Skinner v. Miller, 5 
 Litt. 84 ; Secrest v. Turner, 2 J. J. Marsh. 
 471 ; Edringtou v. Harper, 3 J. J. Marsh. 
 354; Crane B. Bonnell, 1 Green Ch. 264; 
 Youle V. Kichards, Saxton, 534 ; Clark v. 
 Condit, 3 C. E. Green, 358 ; Crane v. De 
 Camp, 6 C. E. Green, 414. If a debt still 
 subsists", and the relation of debtor and 
 creditor remains, it Is a mortgage ; but if 
 
 the debt be extinguished by the agreement 
 of the parties, or the money advanced is 
 not by way of loan, and the grantor has the 
 privilege of refunding if he pleases by a 
 given time, and thereby entitle himself to 
 a reconveyance, it is a conditional sale. 
 Slee V. Manhattan Co. 1 Paige, 56 ; Elagg 
 V. Mann, 14 Pick. 467 ; S. C. 2 Sumner, 
 534 ; Goodman v. Grierson, 2 Bal. & Beat. 
 274; Conway v. Alexander, 7 Cranch, 
 237 ; Robinson v. Cropsey, 2 Edw. Ch. 
 138; Holmes v. Grant, 8 Paige, 243; 
 Webb V. Patterson, 7 Humph. 431 ; Page 
 V. foster, 7 N. H. 392; Porter v. Nelson, 
 4N. H. 130; Eice </. Kice, 4 Pick. 349; 
 Wharf V. Howell, 5 Binn. 499 ; Glover v. 
 Payn, 19 Wend. 518; Brown v. Dewey, 2 
 Barb. 28; Crane v. De Camp, 6 C. E. 
 Green (N. J.), 414. Adequacy of price 
 paid, and want of an obligation to repay 
 the purchase money, are important facts 
 tending to show a conditional sale, though 
 not conclusive. Brown v. Dewey, 2 Barb. 
 28 ; Flagg v. Mann, 2 Sumner, 534 ; 
 Smith o. People's Bank, 24 Maine, 185. 
 On the other hand, gross, inadequacy of 
 price is a strong circumstance to show that 
 the transaction was intended as a mort- 
 gage. Conway v. Alexander, 7 Cranch, 
 218, 241 ; Oldhamw. Halley, 2J.J. Marsh. 
 114; 1 Cruise Dig. by Mr. Greenleaf, vol. 
 2, tit. 15, ch. 1, § 38, & note; Davis v. 
 Stonestreet, 4 Ind. 101. In Waters v. 
 
CH. V. § II.J PURCHASE UNDER POWER. 303 
 
 be called in for a certain time, but in case, in the mean time, 
 there should be one year's interest in arrear, or at the expiration 
 of the period the mortgagor should be unable to redeem, a right 
 of purchase was given to the mortgagee at a fixed price, the 
 transaction was held to retain its character of a mortgage dis- 
 charged of the right to purchase which was void.(m) Circum- 
 stances may, of course, enable the court to declare an absolute 
 sale according to the deeds to be only a mortgage.(w) 
 
 18. If a purchaser agree to pay an addition to the purchase 
 money, provided the adjoining property be improved in a stip- 
 ulated manner before a day named, the money cannot be recov- 
 ered if the seller do not maice all the improvements before that 
 day.(o) 
 
 19. If a power to repurchase be given upon a condition, for 
 example, that rent be in the mean time regularly paid, the right 
 cannot * be enforced unless the condition has been complied with, 
 for it is a privilege conferred. ( p) 
 
 20.% Where' a power is given by an act of parliament to pur- 
 chase the estate of a third person for a public purpose, with the 
 usual provisions for ascertaining its value, if the terms offered 
 are not accepted ; the party empowered to purchase, if he give a 
 regular notice to purchase, cannot withdraw from it, but will be 
 compelled to take the estate.(q), 
 
 21. If a man has agreed to grant a lease, he should be cau- 
 tious in purchasing the interest of an under-lessee or of an as- 
 
 Randall, 6 Met. 482, Mr. Justice Hubbard Hoopes v. Bailey, 28 Miss. 328 ; 1 Washb. 
 
 said : " We have no doubt that conditional R. P. (1st ed.), 481, 482.] 
 
 agreements may be made for the purchase (m) In re Edward's Estate, 11 Ir. Ch. 
 
 of lands, and that sales of estates also. Rep, 367. 
 
 upon good consideration, may take place, (n) Douglas v. Culverwell, 3 Giff. 251 ; 
 
 in which the vendor may contract for the see Shaw v. Jeffery, 13 Moo. P. C. 432; 
 
 repurchase of the same. But such con- [ante, 174, n. («).] 
 
 tracts must be bond fide, and not a mere (o) Maryon v. Carter, 4 C. & P. 295. 
 
 cover for a loan." See, further, as to what . (p) Davis v. Thomas, 1 Rub. & My. 
 
 is a conditional sale and not a mortgage, 506. Consider Williams v. Owen, 10 Sim. 
 
 Beeman v. Lawton, 37 Maine, 543 ; Brews- 386 ; Perry v. Meddowcroft, 4 Beav. 197 ; 
 
 ter V. Baker, 20 Barb. 364 ; Locke v. Joy v. Birch, 4 CI. & Fin. 57. [See 4 
 
 Palmer, 26 Ala. 312; Murphy v. Bare- Kent (1 1th ed.), 144, & note; Robinson w. 
 
 fieldj 27 Ala. 634 ; Lee v. Kilburn, 3 Gray, Cropsey, 2 Edw. Ch. 138,] 
 
 594 ; "West v. Hendrix, 28 Ala. 226 ; (q) The King v. Hung. Market Co. 1 
 
 Nev. &Man. 112. 
 
 [200] 
 
304 
 
 STEWAED OF MANOR. 
 
 [CH. V. § III. 
 
 signee of part, that he do not subject himself to the liabilities of 
 the seller, and release the original lessee from his obligations. (r) 
 
 22. Where a leasehold estate was bequeathed to one for life, 
 with gifts over, and the estate was sold with the concurrence of 
 soriie of the parties and the acquiescence of the others, and the 
 purchase money invested in the funds, without any agreement 
 to divide the purchase money, the interest of which was received 
 by the tenant for life till the lease expired, it was held that the 
 capital of the fund belonged to the tenant for life.(s) 
 
 23. It may be here observed, that the grant of the office of a 
 steward of a manor for life is not revoked by a subsequent sale 
 of the manor, but is binding on the purchaser ; although, as 
 lord, he will be entitled to the custody of the court rolls. In 
 purchasing a manor, therefore, the instrument by which the 
 steward was appointed should be called for. This is a precau- 
 tion which has never been attended to. 
 
 SECTION in. 
 
 OF SPECIFIC PERFOKMANCE. 
 
 1. Specific performance by court of review. 
 
 2. Heir at law of vendor bound. 
 
 3. Infant heir of vendor. — Devisees in 
 
 strict settlement of vendor. 
 
 4. Heir or devisee of vendor after decree 
 
 for sale of debts. 
 
 5. Parties to suit trustee after decree. 
 
 6. Parties bound by decree for sale. — Vest- 
 
 ing order. 
 
 7. Orders liable to stamp duty. 
 
 9. Purchaser of any lot may apply for vest^ 
 ing order. 
 
 10. Tenant in tail. — Provisions by statute. 
 
 11. Tenants in tail of copyholds. — Infant 
 
 trustee. 
 
 12. Doweress. 
 
 13. Joint tenant. 
 
 14. Feme covert. 
 
 15. Where she has a power. 
 
 * 16. Decree against the husband. 
 17. Feme covert with separate estate purchas- 
 ing or selling. 
 
 18. Lunatic ; effect of lunacy on contract or 
 
 deposit. 
 
 19. Trustees under power. 
 
 20. Infant; contracts; sales. 
 
 21. No specific performance of tenancy from 
 
 year to year ; executors. 
 
 22. Sale of annuity, stock, &c. 
 
 23. Discretionary. — Misrepresentation by 
 
 purchaser. 
 
 24. Harris v. Kemble. 
 
 25. Statements of amount of fine; undue 
 
 advantage. 
 
 26. Intoxication. 
 
 27. Seller in prison for debt. 
 
 28. Seller turning purchaser out of posses- 
 
 sion. 
 
 29. Bill filed before the time. 
 
 31. Where the action is lost. — Damages re- 
 
 coverable at law. — Hardship of sale 
 upon seller. — Want of competency. 
 
 32. Mortgagee with power of sale selling 
 
 after foreclosure. 
 
 {?■) Jenkins v. Portman, 1 Kee. 435. 
 
 [201] 
 
 (s) Phillips V. Sargent, 7 Hare, 33. 
 
CH. V. § m.J DECREE FOE SPECIFIC PERFORMANCE. 
 
 805 
 
 33. 
 U. 
 35. 
 59. 
 36. 
 37. 
 
 38. 
 39. 
 40. 
 41. 
 42. 
 43. 
 44. 
 
 45. 
 
 Modification of contract. 
 Uncertainty. 
 
 ! Wliere part cannot be enforced. 
 
 Purchase of lease or underlease. 
 
 Sale of reversion, rent, tenant not known ; 
 
 no person liable to covenants. 
 Suppressio veri: mggtstio falsi. 
 Mistake. 
 Surprise. 
 
 Fraudulent misrepresentation. 
 Sale by agent contrary to authority. 
 Breach of trust. 
 Discretionary power in trustees. — Sale 
 
 by tenant for life. 
 Seller with an interest selling as agent to 
 
 trustee. 
 
 46. Want of title. — Stranger selling. — No 
 
 mutuality. 
 
 47. Where title can be made good. 
 
 48. Purchaser may accept the title. 
 
 49. Seller not compelled to settle another es- 
 
 tate. 
 60. Equitable title. 
 
 51. Purchaser nominal contractor. 
 
 52. Philips and Duke of Buckingham. 
 
 53. Seller pretending to be an agent. 
 
 54. Sale of annuity for lives not named. 
 
 55. Specific performance where no action will 
 
 lie. 
 
 57. Penalty : specific performance. 
 
 58. Penalty: action. 
 
 60. Powers of common law courts in the na- 
 ture of equitable jurisdiction. — Juries 
 in equity and equitable jurisdiction. 
 
 1. The court of review in bankruptcy had not jurisdiction to 
 compel a specific performance where an estate was sold under 
 the common order of the court on the petition of an equitable 
 mortgagee, (a) 
 
 [1 a. A suit for specific performance of a contract for the con- 
 veyance of land, proceeds in personam, and may be maintained 
 in any court of equity which has jurisdiction of the parties, even 
 if the land lies in another state or a foreign country. (a^)] 
 
 2. In regard to the vendor, if a man seised in fee simple, or 
 pur autre vie,{b) contract for the sale of his estate, and die before 
 the conveyance is executed, his heir at law will be decreed to 
 perform the agreement in specie, although he did not covenant 
 for his heirs.(c) 
 
 (a) Ex parte Cutts, 3 Dea. 242. Hayward, 14 Ohio, N. S. 302; GreatFalls 
 (iji) [Brown U.Desmond, 100 Mass. 269; Manuf. Co. v. Worster, 23 N. H. 462; 
 Massie v. Watts, 6 Cranch, 158, 160; Stephenson u. Davis, 56 Maine, 75.; Penn 
 Pingreew. Coffin, 12 Gray, 304, 305; Good v. Ld. Baltimore, 1 Ves. sen. 444; Fry 
 V. Good, 33 Beav. 314; 9 Jur. N. S. 1335; Specif. Perform. (2d Am^. ed.) 69, § 60 et 
 2 Dan. Ch. Pr. (4th Am. ed.) 10.31, n. (8) ; seq. ; Cleveland u. Burnell, 25 Barb.. 532 ; 
 Gardner v. Ogden, 22 N. Y. 327 ; Carring- Newborn v. Bronson, 3 Kernan, 587 .; Da- 
 ton V. Brents, 1 MXean, 167 ; 1 Story Eq. vis v. Headley, 7 C. E. Green, 115. It was 
 Jur. §§ 743, 744; Johnson v. Petrie, 10 said by Grover J. in Burrell v. Root, 40 
 Ves. (Sumner's ed.) 164, note; Wharton N. Y. 498, that where the lands are sitn- 
 V. May, 6 76. 71, note (o) ; Wood i^. ated in a foreign state, the statute of frajids 
 Warner, 2 McCarter (N. J.}, 81 ; Ward v. of that state must govern as to the validity 
 Arredondo, 1 Hopk. 213 ; Mead v. Merritt, of the contract for conveyance thereof.] '. 
 2 Paige, 402 ; Dehon v. Eoster, 4 Allen, (6) Stevens v. Baily, 2 Eree. 199, Nels. 
 545; Mitchell v. Bunch, 2 Paige, 615; C. K. 106, Anon. 2 Eree. 155. 
 Sutphen w. Eowler, 9 Paige, 282 ; Penn u. (c) Gell w. Vermcdum, 2 Eree. 199; 
 
 VOL. 1. 20 
 
306 INFANTS, ETC., TRUSTEES. [CH. V. § III. 
 
 3. It was a point of great controversy whether the 7 Anne, e. 
 19, enabled an infant heir at law to convey in performance of a 
 contract made by his ancestor. It is now sufficient to refer to 
 the cases, (d) for that act was repealed by the 6 Geo. 4, c. 74 ; but 
 even the latter act was held not to embrace constructive trusts.(e) 
 The law was greatly enlarged by the 1 Will. 4, c. 60, which did 
 extend to constructive trusts, and provided relief in certain speci- 
 fied cases against* the heirs of vendors and nominal purchas- 
 ers, (/) and against the devisees of vendors,(g-) so as to enable 
 equity "Under sufficient guards to execute a contract for sale not- 
 withstanding the death of the seller leaving an infant heir, or 
 having devised the estate in strict settlement ; but the act was 
 not to extend to a vendor, except in the cases specially provided 
 for.(/t) This act has been repealed by the 13th & 14th Vict, c. 
 60, by which and the later act of 15th & 16th Vict. c. 55, mu'ch 
 more extensive powers are given to courts of equity over trust 
 and mortgaged estates. The first mentioned act gives a sum- 
 mary jurisdiction to the courts of equity, and makes their simple 
 order operate as a conveyance or a release of contingent interests 
 so as to vest the estate as the court may direct, although an 
 actual conveyance or release may be directed, if the court think 
 fit, to be made by some person appointed by the court. (i) It 
 embraces lunatic trustees (1) and mortgagees, (j) and infant 
 trustees and mortgagees, (A) and appears fully to provide tor 
 the cases of trustees out of the jurisdiction, or who cannot be 
 
 [Glaze V. Drayton, 1 Desaus. 190 ; Wilkin- King v. Leach, 2 Hare, 57 ; In re Milfield, 
 
 son V. Wilkinson, 1 Desaus. 201 ; Newton 2 Phil. 254; Thomas v. Gwynne, 9 JBeav. 
 
 V. Swazey, 8 N. H. 9 ; Hill v. Kessegiere, 275 ; Billing v. Webb, 1 De G. & Sm. 716. 
 
 17 Barb. 162; Fry Specif. Perf. (2d Am. ed.) (i) 13 & 14 Vict. c. 60, s. 20 ; astocopy- 
 
 100 [47]; Swartwouti). Burr, 1 Barb. 495,] holds, see s. 28 ; Wood v. Beetlestone, 1 
 
 {d) Purch. (nth edit.) 224. K. & J. 213; 15 & 16 Vict. c. 55, s. 2, 
 
 (c) Dew V. Clarke, 4 Rus. 511 ; King v- which repeals s. 17 & 18 of 13 & 14 Vict. 
 
 Turner, 2 Sim. 550. , c. 60. 
 
 (/) Sect. 16, Prytharch v. Havard, 6 (j) S. 3, 4, 5, 6,48. 
 
 Sim. 9. [k] S. 7, 8, 19, 48; 15 & 16 Vict. c. 55, 
 
 [g) S. 17. 8. 3 ; Sugd. on Statutes (2d edit.), ch. 9. 
 
 (/») S. 18, In re Blake, 3 Jo. & L. 265 ; 
 
 {I) In re Ashton Charity, 22 Beav. 288, it was held that the court of chancery 
 has jurisdiclion to sell charity lauds, and ihat it can do so upon an application under 
 Romilly's act. This is contraiy to the general opinion. For the powers of the charily 
 commissioners, see 16th & 17th Vict. c. 137, =. 24, 25, 26 ; 23d & 24th Vict. c. 136, s. 16. 
 
 [202] 
 
CH. V. § III.] TRUSTEES TO CONVEY. 307 
 
 found,(i) or when it is uncertain which of several trustees was 
 the survivor,(m) or uncertain whether the last known trustee be 
 living or dead,(w) or when a trustee has died intestate without 
 an heir, or it is not known who is his heir or devisee.(o) And the 
 fact that an order has been made on an allegation of the personal 
 incapacity of a trustee or mortgagee, or on an allegation of the 
 trustee or the heir or devisee of a mortgagee being out of the 
 jurisdiction, or on an allegation of the other circumstances be- 
 fore provided for, is made conclusive evidence of the matter so 
 alleged, but without prejudice to relief where the order shall have 
 been improperly obtained.(/7) It provides, also, for the discharge 
 or release by order of contingent interests in unborn persons, 
 who, after coming into existence, would be trustees,(g') and for 
 the vesting of the land in the party entitled * when the trustee 
 neglects or refuses to convey, (r) and this, as in other cases, is 
 extended to contingent interests. 
 
 4. And the 13th & 14th of Victoria further enacts, that 
 when a decree shall have been made by any court of equity 
 directing the sale of any lands for the payment of the debts of 
 any deceased person, every persow seised or possessed of such 
 lands, or entitled to a contingent right therein as heir or under 
 the will of such deceased debtor, shall be deemed to be so seised 
 or possessed, or entitled upon a trust within the meaning of the 
 act ; and the court of chancery is empowered to make an order 
 wholly discharging the contingent right under the will of such 
 deceased debtor of any unborn person. (s) This leaves but little 
 room for the operation of the 1 Will. 4, c. 47, where partial pro- 
 visions were made in the like case,(^) and the provisions of which 
 
 ^ (I) S. 9, 10. In sect. 10, the words vision for vesting substituted, 15 & 16 
 
 " upon any trust " appear to be accidentally Vict. c. 55, s. 2 ; Sugd. Stat. 417, u. 
 
 omitted ; they would no doubt be supplied (s) S. 29 ; extended by 15 & 16 Vict. c. 
 
 by the context, particularly by the con- 55, s. 1, infra. 
 
 fcluding words of the section. (t) S. 11, 12 ; Heming v. Archer, 7 Beav. 
 
 ("i) S. 13. 515; 8 Beav. 294; 9 Beav. 366; Walker 
 
 (n) S. 14 ; In re Hay's will, 9 Hare, 221 . v. Aston, 14 Sim. 87 ; Brook v. Smith, 2 
 
 (o) S. 15 ; see o. 32, 33, and 15 & 16 Russ. & Myl. 73 ; Penny v. Pretor,9 Sim. 
 
 Vict. c. 55, 8. 8, 9. 135 ; Cheese v. Cheese, 15 L. J. N. S. 28 ; 
 
 [p) S. 44; Sugd. Stat. 426, n. ; In re Beale v. Tennent, 1 Drew. 65; Price v. 
 
 Wise, 5 De G. & Sm. 415, et qu. Carver, 3 My. & Cra. 157 ; Jones v. Ham 
 
 (?) S. 16. 3 Ir. Eq. R. 65 ; Branch v. Browne, 2 Dc 
 
 (r) S. 17, 18, repealed, and another pro- G. & Sm. 299. 
 
 [203] 
 
' 308 TRUSTEES TO COXVEY. [CH. V. § III, 
 
 act were extended by the 11 & 12 Vict. c. 87, neither of which 
 last mentioned acts is referred to in the 13 & 14 Vict. c. 60. 
 The powers of the 1 Will. 4, c. 47, were also enlarged by the 
 2 & 3 Vict. c. 60. (m) 
 
 5. And the 13th & 14th of Victoria further enacts, that when 
 any decree shall be made by any court of equity for the specific 
 performance of a contract concerning any lands, or for the parti- 
 tion or exchange of any lands, or generally when any decree 
 shall be made for the conveyance or assignment of any lands, 
 either in cases arising out of the doctrine of election or other- 
 wise, it shall be lawful for the court to declare that any of the 
 parties to the suit tvherein such decree is made are trustees of 
 such lands within the meaning of the act, or to declare concern- 
 ing the interests of unborn persons, who might claim under the 
 will or voluntary settlement of any person deceased, who was 
 during his lifetime a party to the contract or transactions con- 
 cerning which such decree is made, that such interests of unborn 
 persons are the interests of persons who upon coming into ex- 
 istence would be trustees within the meaning of the act, and 
 thereupon it shall be lawful for the court to make such order 
 as to the estates, rights, and interests of such persons, born or 
 unborn, as the court might, under the provisions of the act, make 
 concerning the estates, rights, and interests of trustees born or 
 unborn. (a;) 
 
 6. And by the later act,(«/) when any decree or order shall 
 have *been made by any court of equity directing the sale of 
 any lands for any purpose whatsoever, every person seised or 
 possessed of such land or entitled to a contingent right therein, 
 being a party to the suit or proceeding in which such decree or 
 order shall have been made, and bound thereby, or being other- 
 wise bound by such decree or order, shall be deemed to be so 
 seised or possessed or entitled upon a trust within the meaning of 
 the trustee act, 1850, and in every such case the court of chancery 
 may, if it shall think it expedient for the purpose of carrying 
 such sale into effect, make an order vesting such lands or any 
 
 (m) ■Weston v. Kler, 5 De G. & Sm. 608 ; Beetlestone, 1 K. & J. 213 ; In re Angfelo, 
 Wake V. Wake, 17 Jur. 545. 5 De G. & Sm. 278; In re Burt, 9 Hare, 
 
 (x) 13 & 14 Vict. c. 60, s. 30. 289, infra, 
 
 (y) 15 & 16 Vict. c. 55, s. 1 ; Wood u. 
 [204] 
 
CH. V. § III.] CONTRACT BY TENANT IN TAIL. 309 
 
 part thereof for such estate as the court shall think fit, either in 
 any purchaser or in such other person as the court shall direct, 
 and every such order shall have the same effect as if such person 
 so seised or possessed or entitled had been free from disability, 
 and had duly executed all proper conveyances and assignments 
 of such lands for such estate. But it has been held that a lessee 
 who had mortgaged by way of underlease and covenanted to 
 stand possessed of the reversion of his lease, in trust for the 
 mortgagee and his assigns, was not such a trustee for an as- 
 signee of the mortgagee to whom he had sold the underlease, by 
 virtue of a power of sale in the mortgage deed.(2;) And accord- 
 ingly the heir of a person who contracted in his lifetime to sell 
 the fee is not a trustee within the acts, until the constructive 
 trust has been first declared by a decree of the court, for it may 
 always be a question whether the contract could be enforced by 
 a suit for specific performance.(fl) 
 
 7. All orders under either of the trustee acts, having the effect 
 of a conveyance or assignment of lands, or a transfer of any 
 such stock .as can only be transferred by stamped deed, are now 
 subject to stamp duty.(6) 
 
 8. In considering the operation of the above provisions, it will 
 be necessary to keep in view the clause interpreting the terras 
 used in the acts.(c) 
 
 9. Where the estate is in an infant, and it is to be obtained by 
 a vesting order, and the estate is sold in lots, a purchaser of any 
 lot may apply for a separate order at the costs of the \endor.{d) 
 This should be guarded against on sales. 
 
 10. Now that fines and recoveries have Been abolished, it is 
 specially provided that no disposition by a tenant in tail, rest- 
 ing only in contract either express or implied, or otherwise, and 
 whether supported by a valuable consideration or not, shall be 
 of any force at law or in equity under the act,(e) and that in 
 cases of dispositions by tenant in tail under the act, the juris- 
 diction of equity shall be altogether *excluded on behalf of a 
 person claiming for a valuable consideration in regard to the 
 
 (z) In re Probeirt, 22 L. J. Ch. 948 ; 1 (c) S. 2 ; 15 & 16 Vict. c. 55, s. 12. 
 
 Kay, 420. (d) Ayles v. Cox, 32 L. T. 233. 
 
 (a) In re Carpenter, 1 Kay, 418 ; In re (e) 3 & 4 Will. 4, c. 74, s. 40 ; post, ch. 
 
 Weeding's Est. 4 Jur. N. S. 707. 12, s. 2. 
 
 (5) 15 & 16 Vict. c. 55, s. 13. 
 
 [205] 
 
310 COPYHOLDS. DOWEK. [CH. V. § IH. 
 
 specific performance of contracts ;(/) but the act does not pro- 
 hibit the exercise of the old power of enforcing a specific per- 
 formance of a contract against the tenant in tail himself, whether 
 in possession or remainder, and the observations which fell from 
 the court in Davis v. Tollemache,(g") were, it should seem, in- 
 tended to be confined to the particular case before the court. 
 The court itself may execute the decree against a tenant in tall 
 in custody for a contempt.(A)(l) 
 
 11. By the 3 & 4 Will. 4, c. 74, a surrender of copyholds is 
 made a bar of even a legal estate tail, and equitable tenants in 
 tail may bar the entail either by surrender or by deed, accom- 
 panied by the solemnities required by the act,(i) without which 
 the issue will not be bound. (A) And under the trustee act, in 
 conjunction with the fines and recoveries abolition act, the court 
 in the case of an infant tenant in tail in remainder, may with 
 the consent of the protector make a vesting order which will bar 
 the remainders over.(/) 
 
 12. Where a copyholder could by his own act bar freebench, 
 an agreement by him for sale of his estate would have been 
 enforced against the wife surviving.(»t) And now a wife's dower 
 is put altogether into the husband's power, and all contracts to 
 which his land shall be subject, are valid as against the right of 
 his widow to dower.(w) Under the old law a contract to" well 
 before marriage bound the wife's dower.(o) It should be kept 
 in view, that a conveyance before the act to uses to bar dower, 
 although expressed to be to bar the present or any future wife, 
 will not bar a widow who was married after the aCt;(j9) but 
 upon a sale by the husband, the wife refusing to join where she 
 is entitled to dower, the dower will be a subject of compensa- 
 tion. (g^) Under the old uses, to bar dower without a preceding 
 
 (/) 3 & 4 Will. 4, c. 74, o. 47 ; posi, ch. Amb. 277; Brown v. Baindle, 3 Ves. 
 
 12. 256. 
 
 (g) 2 Jur. N. S. 1181 ; post. (n) 3 & 4 WUl. 4, c. 105, s. 4, 5. 
 
 (A) 1, Will. 4, c. 36, s. 15, Eule 15. (o) Lloyd v. Lloyd, 2 Con. & Law. 592. 
 
 (i) S. 50-54. (p) Fiy v. Noble, 20 Beav. 598, which 
 
 (Tc) S. 40, 47 ; sup. qu. ; 7 De G., M. & G. 687 ; 2 Jur. N. S. 
 
 [I) Powell V. Matthews, 1 Jur. N. S. 128; Clarke w. Franklin, 4 K. & J. 266. 
 
 9f3. (?) ■Wilsonu. Williams, 3 Jur. N.S. 810; 
 
 (m) Hinton v. Hinton, 2 Ves. 631, 638 ; [post, 206, n., 305, n.] 
 
 (1) As to the right of issue in tail and remainder-man, to set aside a fraudulent pur- 
 chase from the tenant in tail, consider Bellamy v. Sabine, 2 Phil. 425. 
 
CH. y. § III.J SALE BY WIFE OF HER ESTATE. 
 
 311 
 
 power of appointment, a purchaser was held to be entitled to 
 the concurre'nce of the trustee.(»') 
 
 13, Equity will enforce an agreement by a joint tenant for 
 sale of his share against the survivor ; (s) and a covenant to sell 
 severs the joint tenancy in equity.(<) 
 
 * 14. An agreement by a f&me covert for sale of her estate, 
 cannot be enforced either at law or in equity,(M) unless the 
 estate be settled to her separate use, so as to enable her to dis- 
 pose of it as if she were sole ; (x) nor will an agreement by her 
 husband bind her.(^) 
 
 15. But the better opinion perhaps is, that a married woman 
 having a power of appointment can bind herself by a contract 
 to sell the property, although Sir Thomas Plumer in Martin v. 
 Mitchell expressed a different opinion. (z) 
 
 (r) CoUard v. Roe, 4 De 6. & J. 525 ; 
 the conveyance was before the 8th & 9th 
 Vict. t. 106, Sugd. Pow. 194. 
 
 (s) Musgrave v. Dashwood, '2 Ver. 45, 
 63 ; 2 Ves. 634. 
 
 (t) 3 Ves. 257 ; Frewen v. Eelfe, 2 Bro. 
 C. C. 220. 
 
 (u) Emery v. Wase, 5 Ves. 846. [See 
 Jewett V. Davis, 10 Allen, 71, 72 ; Lane v. 
 McKeen, 15 Maine, 304 ; Townsley v. 
 Chapin, 12 Allen, 476 ; Avery v. Griffin, 
 L. R. 6 Eq. 606 ; Butler v. Buckingham, 5 
 Day, 492; 2 Kent (11th ed.), 168; Wat- 
 rous V. Chalker, 7 Conn. 224 ; Dickinson 
 V. Glenney, 27 Conn. 104 ; Dunlap v. 
 Mitchell, 10 Ohio, 117 ; Purcell v. Gashorn, 
 17 Ohio, 105; Boynton o. Hazleboom, 
 14 Allen, 107; Evans v. Kingsberry, 2 
 Rand. 120; Watts v. Kenney, 3 Leigh, 
 272.] 
 
 {x) Davidson v. Gardener, MS., Purch. 
 (11th ed.); [Van Allen d. Humphrey, 15 
 Barb. (N. Y.) 555 ; Bunce v. Vandergrift, 
 8 Paige, 37 ; Helms v. Franciscus, 2 Bland, 
 544 ; Long v. White, 5 J. J. Marsh. 230 ; 
 Bennett v. Oliver, 7 Gill & J. 192; 
 Method. Epis. Church u. Jaques, 3 John. 
 Ch. 77 ; Farley v. Palmer, 20 Ohio St. 
 223; Phillips v. Graves, 20 Ohio St. 371, 
 390. Under the general statutes of Massa- 
 chusetts, c. 108, § 3, in which it is provided 
 
 that " a married woman may bargain, sell, 
 or convey her separate real and personal 
 property, and enter into any contracts in 
 reference to the same," a married woman, 
 with the written assent of her husband, 
 given according to the provisions of the 
 same act, may enter into a written execu- 
 tory agreement for the sale of her real 
 estate, and specific performance thereof 
 may be decreed in equity. Baker v. Hath- 
 away, 5 Allen, 103. See Basford v. Pear- 
 son, 7 Allen, 506; Dresel v. Jordan, 104 
 Mass. 407. But such written assent is 
 indispensable ; Townsley v. Chapin, 12 
 Allen, 479.] 
 
 (y) Daniel v. Adams, Amb. 495 ; 1 Eq. 
 Ca. Ab. 62, pi. 2; Martin u. Mitchell, 2 J. 
 & W. 413; Crofts u.Middleton, 2 K. & 
 J. 194; 8 De G., M. & G. 192, 7 Edw. 4, 
 14, b. 
 
 (2) Martin v. Mitchell, 2 J. & W. 413; 
 Daniel v. Adams, Amb. 495 ; Stead v. Nel- 
 son, 2 Beav. 245 ; Dowell v. Dew, 1 Yo. & 
 Col. C. C. 345 ; Heather v. O'Neill, 2 De 
 G. & J. 417, 418; 27 L.J. N. S. 512; 
 Whitbread v. Smith, 1 Drew. 531 ; Atkin- 
 son V. Smith, 4 Jur. N. S. 963 ; 3 De G. 
 & J. 186 ; Sugd. on Powers (8th edit.), 280. 
 [See 1 Story Eq. Jur. §§ 731-735 ; 2 Kent 
 (11th ed.), 169 ; Jane Hunter, 1 Edw. Ch. 
 1-] 
 
 [206] 
 
312 SALE BY HUSBAND OE WIFE OF HER ESTATE, [CH. V. §111. 
 
 16. If a husband agree to convey his wife's estate, he will, 
 according to some cases, be compelled to perform the agreement 
 m specie ; (a)(1) but this jurisdiction is to be very sparingly ex- 
 ercised, and equity will seize on any reasonable ground as a bar 
 to the aid of the court.(6) The substitution for recoveries act,(c) 
 although it alters the mode of conveyance by a married woman, 
 does not interfere with the rule in equity on this head ; but a 
 husband and wife may, upon a sale of the wife's estate, main- 
 tain a suit against a purchaser for a specific performance, not- 
 
 •withstanding the want of mutuality.{</) 
 
 17. An agreement by a married woman having separate estate 
 
 (a) Hall V. Hardy, 3 P. Wms. 187; Bar- 
 rington v. Home, 2 Eq. Ca. Ab. 17, pi. 7; 
 Morris v. Stephenson, 7 Ves. 474 ; Wheeler 
 V. Newton, Pre. C. 16; Haddon's case, Tot. 
 205 ; Griffin v. Taylor, lb. 106 ; Winter v. 
 Devereux, 3 P. Wms. 190, n.; Withers v. 
 Pinchard, 7 Ves. 475; Anon. 2 Cha. C. 
 53 ; n. to Hall v. Hardy, 3 P. Wms. 187 ; 
 Ortread v. Eound, 4 Vin. Ab. 303, pi. 4 ; 
 8 Ves. 510 ; Emery v. Wase, 5 Ves. 846 ; 
 • Sedgwick v- Hargrave, 2 Ves. 57 ; Emery 
 V. Wase, 8 Ves. 505 ; 16 Ves. 367 ; Howell 
 V. George, 1 Mad. 1. [See Ery Specif. 
 Perfm, {2d Am. ed.) 392 ; Welsh v.Bayaad, 
 6 C. E. Green (N. J.), 186. Where a vendor 
 has agreed to sell and convey land, the re- 
 fusal of liis wife to release dower, is no 
 defence to an action for specific perform- 
 ance, if the vendee offers to waive the re- 
 lease. Corson v. Mulvany, 49 Penn. St. 88 ; 
 see Weed v. Terry, 2 Doug. 344. Where 
 the agreement by a married man is to 
 convey land with release of dower and 
 homestead, specific performance may be 
 enforced, so far as he personally can ex- 
 ecute the same, and compensation ia 
 damages decreed if his wife refuses to re- 
 lease dower and homestead ; Park v. John- 
 son, 4 Allen, 259 ; S. C. 7 Allen, 378 ; . or 
 an abatement in the purchase money of the 
 value of the wife's interest. Davis v. Par- 
 ker, 14 Allen, 94 ; Presser v. Hildebrand, 
 
 23 Iowa, 483 ; Leach v. Eorney, 21 Iowa, 
 271. But it was held, in Castle v. Wilkin- 
 son, L. E. 5 Ch. Ap. 534; 39 L. J. Ch. 
 843 ; 18 W. R. 586, that where a Jinsband 
 and wife agree to sell her estate in fee 
 simple, and the purchaser is aware that the 
 estate belongs to the wife, and she after- 
 wards refuses to convey, the purchaser 
 cannot compel the husband to convey his 
 interest and accept an abated price.] 
 
 (6) Ortread v. Eound, 4 Vin. Ab. 203, 
 pi. 4 ; Emery v. Wase, tibi sup. ; Daniel v. 
 Adams, Amb. 495 ; Davies v. Jones, 1 New 
 E. 267 ; Martin v. Mitchell, 2 J. & W. 
 425; Ex parte Blake, 16 Beav. 463; 
 [Hulmes v. Thorpe, 1 Halst. Ch. (N. J.) 
 415 ; Hawralty w. Warren, 3 Green (N. J.), 
 Eq. 124 ; Clarke v. Eeins, .12 Gratt. 98. 
 Specific performance by a husband of his 
 contract to convey his wife's land, would 
 not, if enforced, give title. The husband 
 could not be compelled to procure a con- 
 veyance from his wife, nor could she, in 
 any other way, be compelled, in a suit for 
 such performance, to execute a conveyance ; 
 Welsh V. Bayaud, 6 C. E. Green (N. J.), 
 186.] 
 
 (c) 3 & 4 Will. 4, c. 74, s. 77; post, ch. 
 12, s. 2. 
 
 (rf) Eennelly v.- Anderson, 1 Ir. Cha- 
 Eep. 706. [See Method. Epis. Church v. 
 Jaques, 3 John. Ch. 77.] 
 
 ( 1 ) A question has been raised, whether if the husband having contracted to sell 
 his wife's estate as owner, dies, she may enforce the contract against the purchaser. 
 Humphreys v. HoUis, Jac. 73. 
 
CH. V. § III.J FEME COVERT PUKCHASING, ETC. 313 
 
 for the purchase of property, has been enforced against the seller, 
 upon the ground that she may contract as if she were a feme 
 sole for the purchase of an estate, and that h^er separate property 
 will be bound by the contract although she do not refer to it.(e) 
 But in a case (/) before Sir J. Leach, where the contract was 
 entered into by a married * woman (living separately from her 
 husband, and having a separate estate at her own disposal vested 
 in trustees), to purchase a real estate, the contract was in her 
 own name, and described her as the wife of J. Piatt, living. 
 separate from her husband, and having a separate estate vested 
 in trustees for her sole and separate use. A deposit was paid, 
 and possession delivered to a servant of the lady's, but she by 
 her answer denied that she had authorized possession to be 
 taken, or had exercised acts of ownership. The bill was filed 
 against the lady and her husband, and her trustees, and prayed 
 that her personal estate might be declared liable to make good 
 the purchase money. The answer raised the point of liability. 
 The title was referred to the master without prejudice to the 
 question of liability. An action had been brought for the recov- 
 ery of the deposit in the name of the husband, and Sir John 
 Leach, although the master reported in favor of the title, dis- 
 missed the bill without costs, on the ground that a married 
 woman could not by a general engagement bind specifically her 
 separate estate, although she could by an informal instrument, 
 as a bond or note. And where real estate was devised to a 
 married woman for her separate use, a contract for sale by her 
 was not after her death enforced against the purchaser at the 
 instance of her devisee in the absence of her heir at law. It was 
 said by the court, that ,the object of limiting the estate to her 
 separate use, was to protect her from her husband, and not to 
 extend her power of disposition. (g-) But this position it would 
 be difficult to maintain. In a late case in Ireland, where a 
 descendible freehold was devised to the testator's daughter to 
 hold, enjoy, and possess, and to her heirs and assigns forever, 
 
 (e) Bowling v. Maguire, Llo. & Go. t. property, he may be compelled to a specific 
 
 Plunk. 1 ; Crofts v. Middleton, 2 K. & J. performance. Johnston v. Jones, 12 B. 
 
 194, rerersed, 8 De G., M. & G. 192. [If Mou. 326.] 
 
 the husband joins in an executory contract, ( /) Chester v. Piatt, Rolls Reg. Lib. A. 
 
 though the deed is to be given to the wife, 1820, p. 1770. 
 and the payment is to be made out of her (g) Harris v. Mott, 14 Beav. 169. 
 
 [207] 
 
314 LUNACY BEFORE OR AFTER CONTRACT. [CH. V. § III. 
 
 reserving it in her own power from any husband or husbands 
 which she should marry, it was held that she could only dispose 
 of the estate by a statute deed. (A) In the case of Crofts v. 
 Middleton,(i) where a married woman who was tenant for life 
 for her separate use, with a contingent remainder in fee, joined 
 with her husband in settling the estate by a statute deed, it was 
 considered that the settlement was made for valuable considera- 
 tion, and it was held that a married woman with her husband 
 could convey a contingent remainder by a statute deed. Lord 
 J. Knight Bruce asked during the argument, if a married woman 
 by deed should acknowledge the receipt of purchase money, and 
 agree to convey in consideration of such payment, would that 
 have no effect? And in giving judgment, in which Lord J. 
 Turner concurred^ he expressed his opinion that the married 
 woman was capable of contracting in equity, and did contract 
 in equity, if not at law and in equity, to part with the inherit- 
 ance. He did not say that she was able to contract so as to 
 expose herself to pecuniary * liability, or to have damages recov- 
 ered against her: he used the words contracting and contract in 
 the sense of binding her estate of inheritance, contingent or not 
 contingent, equitably, if not both legally and equitably. 
 
 18. An agreement by a lunatic cannot, of course, be carried 
 into a specific execution. (1) Where a purchaser at an auction, 
 who had paid a deposit, was before completion found under an 
 inquisition to be a lunatic from a date anterior to the purchase, 
 upon a claim filed for a specific performance, or to have the con- 
 tract discharged, the contract was declared to be void, and the 
 seller was directed to retain out of the deposit all his costs and 
 expenses, and to pay the residue to the committee.(A;) And in 
 
 (A) Adams v. Gamble, 11 Ir. Ch. Eep. cided that the convejfance of land by an 
 
 269, consider the case. insane person may be avoided by him or 
 
 {{) 8 De G., M. & G. 192. his guardian, without restoring, or offering 
 
 (4) Frost'!;. Beavan, 17 Jur. 369. No to restore, to the grantee, the considera- 
 
 doubt the purchaser had not notice. [In tion paid by him.] 
 
 Gibson v. Soper, 6 Gray, 279, it was de- 
 
 (I ) What unsoundness of mind will avoid a deed, see Bull v. Manners, 3 Bli. N. S. 
 1 ; Creagh v. Blood, 2 J. & L. 509 ; as to lucid intervals, Sugd. H. of L. 84 ; and as to 
 relief against a purchaser on the ground of the insanity of the seller, Price ». Berring- 
 ton, 7 Hare, 394 ; 3 M. & G. 486, [{Am. ed.) notes (2) & (3) ; Allis v. Billings, 6 Met. 
 415 ; Arnold v. Richmond Iron Works, 1 Gray, 434; Gibson v. Soper, 6 Gray, 279.] 
 
 [208] 
 
OH. V. § III.] LUNACY BEFOKK OE AFTER CONTEACT. 315 
 
 such a case, where the seller is ignorant of the lunacy, as the 
 contract, as far as regards the deposit, is considered as executed, 
 the sellers having performed so far their obligations, the pur- 
 chaser cannot recover the deposit at law in an action for money 
 had and received.(Z) And now the result of the authorities seems 
 to be that dealings of sale and purchase by a person apparently 
 sane, although subsequently found to be insane, will not be set 
 aside against those who have dealt with him on the faith of his 
 being a person of competent anderstanding.(?w) The change of 
 the condition of a person entering into an agreement, by becom- 
 ing lunatic, will not alter the right of the parties ; although 
 formerly there was no mode of obtaining a conveyance ; (w) but 
 this anomaly was removed by the 1 Will. 4, c. 65,(o) which has 
 been repealed by a later act,{p) which provides that when a per- 
 son having contracted to sell, or otherwise dispose of any real 
 property, &c., afterwards becomes lunatic, and the contract is 
 not disputed, and is such as the lord chanceller thinks ought to 
 be performed, or a specific performance of the contract either 
 wholly or so far as the same remains to be performed, has been 
 ordered by the court of chancery, either before or after the lunacy, 
 the committee of the estate may in the name and on the behalf 
 of the lunatic, under an order of the chancellor, on the applica- 
 tion of the party claiming the * benefit of the contract with the 
 lunatic, or any plaintiff in the suit, receive and give an effectual 
 discharge for the money, and make such conveyance of the land 
 to such person, and in such manner as the chancellor may 
 order. (gj) .Where there is a power to sell in a person of unsound 
 mind, but not found so by inquisition, a vesting order cannot be 
 made under the trustee acts, inasmuch as the lunatic has no 
 estate vested in him.(r) 
 
 [l] Boavan v. M'Donnell, 10 Ex. 309 ; (n) Owen v. Davies, 1 Ves. 82 ; Hall v. 
 
 Molton V. Camroux, 2 Ex. 487, 501, 4 Ex. Warren, 9 "Ves. 605. [See Swartwout v. 
 
 77 ; Campljell v. Hooper, 3 Sm. & Gif. 153, Burr, 1 Barb. 495..] 
 
 1 Jur. N. S. 670. Mortgage by a lunatic (o) S. 27. 
 
 to a person without notice established; (p) 16 & 17 Vict. c. 70, schedules 1 and 
 
 Elliot V. Ince, 7 De G., M. & G. 475, upon 2. The 1 Will. 4, u. 47, was not rep 
 
 a sale. by the 13 & 14 Vict. c. 60 ; see ». 30, 3 ; 
 
 (m) Per cur. 7 De G., M. & G. 488 ; [1 see now 15 & 16 Vict. c. 55, supra. 
 Dan. Ch. Pr. (4th Am. ed.) 85 ; Yanger v. ((f) S. 122. 
 
 Skinner, 1 McCarter (N. J.), 389 ; Carr v. (r) In re Gregory Porter's Estate, 25 L. 
 HoUiday, 5 Ired. Eq. 167.] 
 
 [209] 
 
316 CONTRACT BY AN INFANT. [CH. V. § III. 
 
 19. If trustees, under a power of sale, make a legal contract (s) 
 for sale of the estate, the contract binds the estate; and though, 
 by the deaths of parties, the power should be extinguished, yet 
 the contract must be executed by those who have got an interest 
 by the extinguishment of the power.(<) 
 
 20. If an infant enter into a contract for the sale or purchase 
 of an estate, he cannot enforce it in equity, for the remedy is not 
 rautual.(M) But although an infant cannot be compelled to 
 complete a contract for the purchase of a property, yet if he con- 
 tract for an estate, and pay a deposit, he cannot, in the absence 
 of fraud, recover it back because he declines to complete the 
 purchase. (a;) But if he could show that fraud had been practiced 
 upon him, it would be otherwise.(^) However beneficial it might 
 be,' a court of equity cannot, unless where authorized by statute, 
 sell an infant's estate for him. («) Relief in equity could not be 
 granted against him under a contract, upon the ground that the 
 person contracting with him believed him to be of full age, but 
 without any representation to him by the infant on the sub- 
 ject.(a) But the .infant must not be guilty of fraud. (i) 
 
 21. A specific performance will not be decreed of a contract 
 for a simple tenancy from year to year.(c) But executors may, 
 
 T. 262. It is stated as a devise to trustees 517; Eobbins u. Eaton, 10 N. H. 561; 
 
 to sell in 25 L. J. N. S. 482. Bigelow u. Kinney, 3 Vt. 353 ; Armfield 
 
 (s) Morgan !>. Milman, 3 De G., M. & «. Tate, 7 Ired. 258; Kline v. Beebe, 6 
 
 G. 24. Conn. 494 ; Barnaby v. Barnaby, 1 Pick. 
 
 («) Mortlock V. BuUer, 10 Ves. 292; 221. But see Benham w. Bishop, 9 Conn. 
 
 Shannon a. Bradstreet, 1 Sch. & Lef. 52. 330.] 
 
 [But a cestui que trust cannot dispose of his (x) Ex parte Taylor, 8 De G., M. & G. 
 
 interest in the estate devised in trust for 254. 
 
 him, and a court of equity will not decree {y) Wilson v. Keane, Peak. Ad. Gas. 
 
 specific performance of a, sale made by 196; see Latt m. Booth, 3 Car. & K. 292; 
 
 him. Shankland's App. 47 Penn. St. Ex parte Unity Joint Stock &c. Assoc. 3 
 
 113.] De G. & J. 63. 
 
 («) Flight V. BoUand, 4 Rus. 298. [See (.z) Calvert v. Godfrey, 6 Beav. 97 ; 
 
 Benedict v. Lynch, 1 John. Ch. 373 ; Bou- Wood u. Pattison, 10 Beav. 541 ; see 
 
 cher V. Van Buskirk, 2 A. K. Marsh. 346 ; Garmstone v. Gaunt, 1 Col. 57f ; 19 & 20 
 
 Chitty Contr. (10th Am.ed.) 174. Where Vict. c. 120. 
 
 an infant has taken a lease of real estate {a) Stikeman v. Dawson, 1 De G. & 
 
 or has purchased it, and means to avoid his Sm. 90 ; Esron v. Nicholas, lb. 118. 
 
 act, he must elect to do so within a rea- (6) Inf. Wright ii. Snowe, 2 De G. & 
 
 sonable time after coming of age; he can- Sm. 321 ; Nelson v. Stocker, 4 De G. & J. 
 
 not enjoy the estate for years after coming 458. 
 
 of age, and then avoid the purchase, and (c) Clayton v. Ulingworth, 10 Hare, 
 
 refuse payment, or reclaim the considera- 451. 
 tion paid. Boody v. McKenny, 23 Maine, 
 
CH. V. § III.] SPECIFIC PERFORMANCE : NATURE OF PROPERTY. 317 
 
 under certain circumstances, be compelled to take a lease or a 
 renewed lease, although care will be taken not to charge them 
 personally. (rf) 
 
 22. Secondly, We are to consider the general rules by which 
 equity is guided in compelling the specific performance of agree- 
 ments.(fiii) The court will not interfere, where from the nature 
 of the case the damages* must necessarily be commensurate to 
 the injury sustained, (e) as, for instance, in agreements for the 
 purchase of stock, it being the same thing to the party, where 
 or from whom the stock is purchased, provided he receives the 
 money that will purchase it ; and the court never gives relief 
 where the act is impossible to be done, but leaves the party to 
 his remedy at Iaw.(/) Bat the sale of an annuity payable out 
 of dividends of a particular stock,(g") or of the right to a divi- 
 dend upon a bankrupt's estate,(/j) or even a contract for stock 
 
 (d) Phillips 1;. Everard, 5 Sim. 102; 
 not quoted in some former editions, be- 
 cause not between vendor and purchaser, 
 and not laying down any general rule ; 
 Stephens v. Hotham, 1 K. & J. 571. 
 
 (d}) [Courts of equity will decree the 
 performance of contracts relating to lands 
 without their jurisdiction. Davis v. Head- 
 ley, 7 C. E. Green (N. J.), 115; ante, 201, 
 note (ai).] ' 
 
 (c) Errington v. Annesley, 2 Bro. C. C. 
 841 ; Elint v. Brandon, 8 "Ves. 363 ; Mitf. 
 PI. 109 ; Rogers v. Challis, 6 Jur. N. S. 
 334; [Sears v. Boston, 16 Pick. 357; 
 Hatch V. Cobb, 4 John. Ch. 559 ; Kemp- 
 shall V. Stone, 4 John. Ch. 1 93 ; Hepburn 
 o. Dunlap, 1 Wheat. 197 ; Hepburn v. 
 Auld, 6 Cranch, 262 ; Saveiy v. Spence, 
 13 Ala. 561 ; Fry Specif. Perfm. (2d Am. 
 ed.) 48, § 12 et seq. ; Stuart v. The Lon- 
 don & North "Western Railway Co. 1 De G., 
 M. & G. 721, and cases in note (2) ; Webb 
 V. The Direct London & Portsmouth Rail- 
 way Co. 1 De G., M. & G. 521, and cases 
 in note (2). The ground of the jurisdic- 
 tion of a court of equity in such cases is, 
 that a court of law is inadequate to decree 
 a specific performance, and can relieve the 
 injured party only by compensation in 
 
 damages, which, in many cases, would fall 
 far short of the redress which his situation 
 might .require. Whenever, therefore, the 
 party wants the thing in specie, and he 
 cannot otherwise be fully compensated, 
 courts of equity will grant him a specific 
 performance. 1 Fonbl. Eq. b. 1, ch. 1, § 
 5, note (o) ; Errington v. Annesley, 2 
 Bro. C. C. (Perkins's ed.) 341-343, & 
 notes ; Madison v. Chinn, 3 J. J. Marsh. 
 231 ; Cathcart v. Robinson, 5 Peters, 264 ; 
 1 Story Eq. Jur. § 716 ; Sears v. Boston, 
 16 Pick. 357. The jurisdiction of courts 
 of equity to decree specific performance 
 may be distinctly traced back to the reign 
 of Edward 4. 8 Edw. 4, 4, b ; Eonbl. 
 Eq. b. 1, ch. 1, § 15, in note ; 1 Story Eq. 
 Jur. § 716.] 
 
 (/) Green v. Smith, 1 Atk. 572. [See 
 Fry Specif. Perfm! (Am. ed.) 389, § 658; 
 Sears v. Boston, 16 Pick. 358 ; Woodwai-d 
 V. Harris, 2 Barb. 439.] 
 
 ig] Withy v. Cottle, 1 Sim. & Stu. 174; 
 Tur. & Rus. 78 ; Adams v. Blackwall Ry. 
 Co. 13 Jur. 620; 2 Mac. & G. 118; Clif- 
 ford V. Turrill, 1 Yo. & Col. C. C. 138 ; 9 
 Jur. 633, afif'd. 
 
 (A) Adderley v. Dixon, 1 Sim. & Stu. 
 607. 
 
 [210] 
 
318 SPECIFC PEKFORMANCE: NATURE OF PROPERTY. [CH. ,V. § III. 
 
 where the object is to obtain delivery of certificates which confer 
 the legal title to it,(t) or of railway shares,(/!;) may be enforced 
 in equity, and also in the case of railway shares upon which the 
 deposit and calls remain to be paid, although no money consid- 
 eration passes between the parties; (;) and although the court 
 will not execute an agreement for the sale of a good-will stand- 
 ing alone,(TO) yet if it is connected with the house or property, 
 the whole contract will be enforced. (w) Where the seller is en- 
 titled to be relieved from liabilities which attach to the owner- 
 ship, as in the case of railway shares where the purchaser has 
 neglected to execute and register the assignment, he may obtain 
 a specific performance, or proper directions for his security, al- 
 though the purchase money is paid,(o) unless he has destroyed 
 the privity of contract between him and the purchaser.( j9) A 
 purchaser of shares through a broker on the stock exchange, buys 
 subject to all the established usages of the stock exchange, and 
 he is bound to indemnify , the broker for what he does by his 
 authority.(g') A sale of shares in a joint stock company has 
 been specifically enforced, although by the deed of settlement no 
 shareholder was to be at liberty to transfer his shares, except in 
 such manner as the board- should approve, and the directors 
 would not allow the seller to transfer his shares.(r) 
 
 (t) Doloret v. Eothschild, 1 Sim. & Stu. (?) Stray v. Eussell, Taylor v. Stray, 5 
 
 590 ; Pooleyi). Bndd, 14 Beav.'34. Jur. N. S. 1295, Q. B.; Cooper u. Hood, 
 
 {k) Duncuft V. Albrecht, 12 Sim. 129 ; 26 Beav. 293. 
 
 Shaw V. Fisher, 2 De G. & Sm. 15; (r) Poole v. Middleton, 7 Jur. N. S. 
 
 Wynne v. Price, 3 De G. & Sm. 310. ■ 1262. [A bill in equity may be main- 
 
 {l) Cheale v. Kenward, 3 De G. & J. tained for the specific performance of an 
 
 27. agreement to transfer shares in a corpora- 
 
 (m) Baxter v. ConoUy, 1 J. & W. 576 ; tion. Todd v. Taft, 7 Allen, 371 ; see Hur- 
 
 Coslake v. Till, 1 Kuss. 376 ; Dakin v. ley v. Brown, 98 Mass. 547 ; 1 Story Eq. 
 
 Cope, 2 Kuss. 170; Cooper v. Hood, 26 Jur. §§ 717 a, 718; Cowles o. Whitman, 
 
 Beav. 293. 10 Conn. 121 ,; 1 Story Eq. Jur. §§ 724, 
 
 (n) Darbey v. Whitaker, 4 Drew. 134. 725 ; Leach i-. Eobes, 11 Gray, 506, 510 ; 
 
 (o) Shaw V. Ksher, 2 De G. & Sm. 15 ; Pry Specif. Perfin. (2d Am. ed.) 53, 54, §§ 
 
 5 De G., M. & G. 596 ; Wynne v. Price, 25-28 ; Oriental Inland Steam Co. v. 
 
 13 Jur. 295; 3 De G. & Sm. 310 ; Sayles Briggs, 2 H. & M. 625. The true princi- 
 
 V. Blane, 14 Q. B. 205, inf. ch. 10, s. 1 ; as pie in equity is, that specific performance 
 
 to a specific performance of a contract to of an agreement relating to chattels ought 
 
 sell patent rights, see Potter v. Crossley, to be decreed when equity and conscience 
 
 28 L. T. 137; or a piece of china, Palke require it; as in the case of pictures and 
 
 0. Gray, 4 Drew. 657. \ other things of peculiar value and attach- 
 
 {p) 5 De G., M. & 6. 596. ment, and when the remedy hy action at 
 
CH. V. § III.] 
 
 MISEEPEESENTATION. 
 
 319 
 
 23. The decreeing a specific performance is a matter of dis- 
 cretion, but it is not an arbitrary, capricious discretion ; it must 
 be regulated * upon grounds that will make it judicial,(s) and 
 the period at which the court is to examine the agreement be- 
 tween the parties, is the time when they contracted.(<) Every 
 agreement ought to be in writing, certain (m) and fair in all its 
 parts,(M') and for adequate consideration.(a;) The court will 
 
 law for damages would be inadequate, and 
 no compensation or just relief could be 
 otherwise afforded. 2 Kent ( 11 th ed.), 487, 
 note (rf) ; Sarter v. Gordon, 2 Hill Ch. 
 126, 127 ; Young v. Burton, 1 McMuUan, 
 255 ; Clark v. Flint, 22 Pick. 231. In this 
 last case, of Clark v. Flint, Wilde J. said : 
 " The reasons given for a distinction be- 
 tween real and personal estate are nbt very 
 satisfactory. All, as it seems to me, that 
 can be fairly inferred from the cases on 
 this point is, that, in contracts respecting 
 personal estate, a compensation in dam- 
 ages is much oftener a complete and satis- 
 factory remedy than it is in those which 
 relate to personal estate. But in all cases, 
 if a party has not such a remedy, a court 
 of equity will entertain jurisdiction, and 
 grant relief as justice may require." See 
 Murphy v. Clark, 1 Sm. & M. 221, 232 ; 
 Butler V. Hicks, 11 Sm. & M. 79, 85; 
 Mechanics' Bank of Alexandria v. Seton, 
 I Peters (U. S.), 300, 305 ; Chamberlain 
 V. Blue, 6 Blackf. 491, 492; Brown v. 
 Gilliland, 3 Desaus. 539, 541 ; Hoy v 
 Hansborough, 1 Freem. Ch. 533 ; Sanqui. 
 rico V. Benedettl, 1 Barb. 315 ; Stuyve- 
 sant V. New York, 11 Paige, 414; Phillips 
 V. Berger, 2 Barb. 608 ; Sullivan v. Tuck, 
 1 Md. Ch. 59 ; Waters o. Howard, 1 Md. 
 Ch. 112 ; 2 Dart V. & P. (4th Eng. ed.) 
 902, 903; Charingbould v. Curtis, 21 L. 
 J. Ch. 541 ; Fry Specif. Perfm. (2d Am. 
 ed.) 55, § 30.] 
 
 (s) 7 Ves. 35; 1 Atk. 183; 4 Bur. 
 2539 ; Davis v. Simonds, 1 Cox, 402 ; 
 Haywood w. Cope, 25 Beav. 140 ; [St. John 
 V. Benedict, 6 John. Ch. 117; Seymour u_ 
 Delancey,"6 John. Ch. 225 ; S. C. 3 Cowen, 
 445 ; Miuturn v. Seymour, 4 John. Ch. 
 
 497 ; McNeil v. Magee, 5 Mason, 255 ; 
 Canterbury Aqueduct Co. v. Ens^vorth, 22 
 Conn. 608 ; Eastman v. Plumer, 46 N. H. 
 404 ; Jackson v. Ashton, 11 Peters (U. S.), 
 229 ; Howard v. Moore, 4 Sneed (Tenn.), 
 317 ; Perkins v. Wright, 3 Harr. & M'H. 
 326; Simmons v. Hill, 4 Harr. & M'H. 
 258 ; Clitherall v. Ogilvie, 1 Desaus. 257 ; 
 Jenkins v. Hogg, 2 Const. -Eep. (S. Car.) 
 841 ; Hester v. Hooker, 7 Sm. & M. 768 ; 
 Clement v. Reid, 9 Sm. & M. 535 ; Tobey 
 V. Bristol Co. 3 Story, 800 ; King v. Ham- 
 ilton, 4 Peters, 311 ; Leigh u. Crump, 1 
 Xred. Eq. 299 ; Pratt v. Carroll, 8 Cranch, 
 471 ; Western R. R. Co. v. Babcock, 6 
 Met. 346 ; Kerr F. & M. (Am. ed.) 357, 
 358 ; Watson v. Marston, 4 De G., M. & 
 G. 230 ; 1 Story Eq. Jur. § 742 ; Seaman 
 V. Van Rensselaer, 10 Barb. 83 ; Waters 
 V. Howard, 8 Gill, 262.] 
 
 (t) Revell V. Hussey, 2 Bal. & Beat. 
 288; EUard v. Ld. Llandaff, 1 Bal. & 
 Beat. 241 ; [Fry Specif. Perfm. (2d Am. ed.) 
 173, 182; Jones v. Lee, 26 L. J. Exch. 9 ; 
 Lee w. Kirby, 104 Mass. 428, per Ames J.] 
 (u) Tottenham v. Townsend, 5 Ir. C. 
 
 R. 225 ; Tillett v. Chester Bridge Co. 28 
 L. J. N. S. 863. 
 
 («i) [Kendall v. Almy, 2 Sumner, 278 ; 
 
 Carr v. Duval, 14 Peters, 77 ; German v. 
 Machin, 6 Paige, 288 ; Seymour v. Delan- 
 cey, 6 John. Ch. 225 ; S. C. 3 Cowen, 445 ; 
 Acker v. Phoenix, 4 Paige, 305 ; Fry Spe- 
 cif. Perfm. (2d Am. ed.) 171, § 233 et 
 seq. ; Modisett v. Johnson, 2 Blackf. 431 ; 
 
 Crane v. Decamp, 6 C. E. Green (N. J.), 
 
 414; Nichols v. Williams, 7 C. E. Green 
 
 (N.J.),63.] 
 [x) 1 Ves. 279 ; 3 Atk. 386 ; EUard v. 
 
 Ld. Llandaff, T Bal. & Beat. 241 ; Martin 
 
 [211] 
 
320 
 
 MISREPEESENTATION. [CH. V. § III. 
 
 never decree a specific performance, unless the case of the plain- 
 tiff is perfectly clear from circumvention and deceit.(y) There- 
 fore,(^) where the purchaser was plaintiff', and was the seller's 
 agent, a specific performance was refused, because he had repre- 
 sented to the seller that the houses had been injured by a flood, 
 and would require between 40Z. and 501. to repair them, whereas 
 40s. would have repaired the damage. 
 
 24. And where upon the sale of shares in a theatre to a co- 
 proprietor, there was a misrepresentation that a box was let, 
 whereas it was really sold, but the seller was for a certain period 
 after the purchase to receive the alleged rent, which was more 
 than the value of the alleged price, and the seller was competent 
 and willing to make good his representation by sufficiently secur- 
 ing the alleged rent. Sir J. Leach V. C. enforced the contract; 
 but his decree was reversed in the Lords.(a) 
 
 25. But, as we have seen, general statements by a seller may 
 not amount to a misrepresentation — as in the case before quoted, 
 where the fine for renewal was stated to be a small one, and that 
 the estate was nearly equal to freehold, and those representations 
 were considered to be indefinite. Such representations ought to 
 put a purchaser upon inquiry. But if the seller knew that a 
 larger fine would be required, and that the purchaser entertained 
 a different idea of the fine, that would be a ground for rescind- 
 ing the contract. Where the purchaser wished to ascertain the 
 
 V. Mitchell, 2 J. & W. 413 ; Stanley v. Lynch, 1 John. Ch. 375, 379 ; Rodman v. 
 
 Robinson, 1 Rus. & My. 527 ; [Seymour v. Zilley, 1 Saxt. (N. J.) Ch. 320 ; Patterson 
 
 Delancey, 6 John. Ch. 222; S. C. 3 y. Mertz, 8 Watts, 374 ; Livingston «. Peru 
 
 Cowen, 445 ; Cole v. Trecothick, 9 Ves. Iron Co. 2 Paige, 390 ; Cathcart v. Eob- 
 
 (Sumner's ed.) 234; Moth v. Atwood, 5 inson, 5 Peters (U. S.), 264, 276; Fisher 
 
 lb. 845, in note ; Eastman v. Plumer, 46 v. Worrall, 5 Watts & S. 278 ; Gurley v. 
 
 N. H. 464; McCarty u. Kyle, 4 Cold. Hiteshue, 5 Gill, 217; Young w. Prost, 5 
 
 (Tenn.)348.] Gill, 287, 313; Walters «. Morgan, 3 DeG., 
 
 (y) 1 Cox, 407; 2 Sch. & Lef. 553; P. & J. 718; Colby u. Gadsden, 15 W. R. 
 
 [Clement i). Reid, 9 Sm. & M. 535; Mil- 1185; Puller v. Perkins, 7 Ohio, 196; 
 
 ler V. Chetwood, 1 Green Ch. 199 ; Wuest- Slack v. McLagan, 15 111. 242 ; Clement 
 
 hofF V. Seymour, 7 C. E. Green, 66 ; Sey- v. Reid, 9 Sm. & M. 535.] 
 
 mour V. Delancey, 6 John. Ch. 225 ; S. C. {z) Cadman v. Horner, 18 Ves. 10 ; Ld. 
 
 3 Cowen, 445 ; Acker v. Phoenix, 4 Paige, Clermont v. Tasburgh, 1 J. & W. 112. 
 
 305; Nellisw. Clark, 20 Wend. 24; Cath- (a) Harris v. Kemble, 1 Sim. Ill; 5 
 
 cart V. Robinson, 5 Peters, 264, 276 ; Best Bli. N. S. 730 ; 2 Dow. & Cla. 463 ; Sugd. 
 
 o. Stow, 2 Sandf. Ch. 2^8; Schmidt v. H. L. Cas. 660; Blake v. Mowatt, 21 
 
 Livingston, 3 Edw. Ch. 213 ; Benedict ;;. Beav. 603. 
 
CH. V. § III.] INTOXICATION. . 321 
 
 fine, and offered 150^. towards it, if the seller would pay the 
 remainder, which he refused to do, the court said that they could 
 not put the purchaser in the situation in which he would have 
 been if the 150Z. had been accepted. That circumstance (the 
 refusal to pay beyond the 150/.) ought to have put him upon 
 inquiry, and he did not bring himself within any rule to avoid 
 the contract ; and if he had, he could only have rescinded the 
 contract.(6) A court of equity does not affect to weigh the 
 actual value, nor to insist upon an equivalen't in contracts, where 
 each party has equal competence. When undue advantage is 
 taken, it will not 'enforce the contract ; but it cannot listen to 
 one party, saying, that another man would have given him more 
 money or better terms than he agreed to take. It may be an 
 improvident contract; but improvidence or inadequacy do not 
 determine a court of equity against decreeing specific perform- 
 ance.(c) 
 
 26. Equity will not decree a specific performance of an agree- 
 ment made in a state of intoxication, although the party was 
 not drawn in to drink by the plaintiff, but will leave the parties 
 to their remedy at law; (rf) but although a party has been drink- 
 ing, yet if he possessed full understanding or knowledge of what 
 he was doing, the contract may be enforced even in equity. 
 Where the seller was addicted to drinking, and an agreement 
 by him to sell to A. might not perhaps have been enforced, yet a 
 
 (6) Fenton v. Brown, 14 Ves. 144 ; by the court in cases of this nature. Low 
 
 Lowndes v. Lane, 2 Cox, 363. v. Treadwell, 3 Fairf. 441 ; Coles v. Tre- 
 
 (c) Sullivan v. Jacob, 1 Mol. 477 ; [Lee cothick, 9 Ves. 234 ; Revell v. Hiissey, 2 
 
 V. Kirby, 104 Mass. 420, 428; Coles o. Bal. & Beat. 287."] 
 Trecothick, 9 Ves. (Sumner's ed.) 234, & {d) Cragg v. Holme, 18 Ves. 14; Say 
 
 note ; Moth v. Athwood, 5 lb. 845, & note ; v. Barwick, 1 Ves. & Bea. 95 ; Lightfoot v. 
 
 1 Story Eq. Jur. §§ 245, 246 ; Seymour v. Heron, 3 To. & Col. 586 ; Nagle t. Bay- 
 
 Delancey, 6 John. Ch. 226, 232 ; S. C. 3 lor, 3 Dru. & War. 60; Sugd. H. L. Cas. 
 
 Cowen, 445 ; Minturn K. Seymour, 4 John. 64. [Seel Story Eq. Jur. §§ 330, 331 ;/' 
 
 Ch. 500 ; Woodcock v. Bennett, 1 Cowen, Campbell v. Ketcham, 1 Bibb, 406 ; White 
 
 733; Cathcart w. Eobinson, 5 Peters (U. •?. Cox, 3 Hayw. 82; Wigglesworth v. 
 
 S.), 264. In Lee u. Kirby, 104 Mass. 428, Steers, 1 Hen. & M. 70; Rutherford v. 
 
 - Ames J. said, " We do not intend to say Ruff, 4 Desaus. 350 ; Barrett v. Buxton, 2 
 
 that the court will never pay any attention Aiken, 167 ; Morrison v. McLeod, 2 Dev. 
 
 to hardships, produced by a change of cir- & Bat. 221; Hutchinson u. Brown, 1 
 
 cumstances, but certainly the general rule Clarke, 408 ; Ford v. Hitchcock, 8 Ohio, 
 
 is that a mere decline in value since the 214 ; Conant v. Jackson, 16 Vt. 335 
 
 date of the contract is not to be regarded Prentice v. Achorn, 2 Paige, 30,] 
 VOL. I. 21 [212] 
 
322 SPECIFIC PERFORMANCE. SELLER IN PRISON. [CH. V. § III. 
 
 subsequent purchaser from him at a small advance of price, with 
 a notice of the contract with A., was compelled to perform the 
 contract with the latter.(e) 
 
 27. And a man may sell his estate although he is in prison for 
 debt, bat the transaction must bear the full light of day.{/) 
 
 28. If it be stipulated in a contract, that immediate possession 
 shall be given to the purchaser, which is done, but, in conse- 
 quence of disputes as to the title, the seller afterwards turn the 
 purchaser out of possession, he abandons his right to a specific 
 performance.(g-) 
 
 29. If by the true construction of an agreement the time for 
 completing the purchase has not arrived, a bill filed for an imme- 
 diate decree would be dismissed with costs. This can seldom 
 happen in a transaction between individuals.(A) Where the title 
 was^ doubtful, and it was stipulated that the parties should con- 
 cur in obtaining an act of parliament, the purchaser declining to 
 complete cannot demur to the seller's bill, filed before an act has 
 been applied for.(i) 
 
 30. Where a conveyance of one moiety of an estate was set 
 aside as unduly obtained, a contract by the conveying party to 
 sell the other moiety to the same party, based on the convey- 
 ance, will not be carried into execution. (A:) 
 
 31. A court of equity frequently decrees a specific perform- 
 ance where the action at law has been lost by the default of the 
 party seeking the specific performance, if it be conscientious that 
 that agreement should be performed, as in cases where the terms 
 of the agreement have not been strictly performed on the part 
 
 (c) Shaw u. Thackery, 1 Sm. & Gif. vendor for the halance of the purchase 
 
 537. money, he defended on the ground that 
 
 (/) Brinkley u. Hann, Dru. 175. the contract was void by the statute of 
 
 {g} KnatchbuU v. Grueber, 3 Mer. 124. frauds, and so defeated the action, it was 
 
 [Where it is ». part of the (agreement to held that the purchaser, after disafBrming 
 
 convey a house, that it shall be cleared of and abandoning the contract, was not en- 
 
 a tenant by a certain day, — the same on titled to a specific execution of it. Payne 
 
 which the purchase money was agreed to v. Graves, 5 Leigh, 561.] 
 be paid, — if the tenant unlawfully con- (h) Boddington u. G. W. Ey. 13 Jur. 
 
 tinues in possession after that day, the 144. 
 
 vendor cannot enforce sijecific performance. [i) Devenish u. Brown, 27 L. T. 237; 
 
 Howe V. Conley, 16 Gray, 552. Where a 2 Jur. N. S. 457, 1043. 
 purchaser of land was let into possession (k) Reynell v. Sprye, 8 Hare, 222, 1 De 
 
 and paid a part of the purchase money G., M. & G. 656 ; Yonge v. Reynell, 9 
 
 under the contract, but being sued by the Hare, 809. 
 
CH. V. § III. j SPECIFIC PERFORMANCE. DAMAGES. 323 
 
 of the person seeking specific performance ; (k^) and to sustain 
 an action at law performance must be averred according to the 
 very terms of the contract. * Nothing but specific execution of 
 the contract, so far as it can be executed, will do justice in such 
 a case.(Z) But although damages may be recovered at law, yet 
 equity is not therefore obliged to decree a specific perform- 
 ance. (jn) Thus in a case where a seller was entitled to a small 
 estate under his father's will, on condition that if he should sell 
 it in twenty-five years, half the purchase money should go to 
 his brother; it was held, that the hardship alone of losing half 
 the purchase money, if carried into execution, was sufficient to 
 determine the discretion of the court not to interfere.(w) Nor 
 will equity interpose, if the party who is called upon to do the 
 act is not lawfully competent to doit; for that, amongst other 
 inconveniences, would expose him to a new action for dam- 
 ages.(o) But where a purchaser held a property under a lease 
 subject to an interest in another over a portion of it — the opera- 
 house and a box in it, -^ and insisted that a forfeiture would be 
 incurred if effect were given to the claim of the portion, and 
 refused compensation, and it appeared that he might at one 
 period have so dealt with the property as to give effect to the 
 claim, and yet incur no forfeiture, a decree was made establish- 
 
 (F) [See Wiite !>. Butcher, 6 Jones Eq. 16 Pick. 357; Ellis o. Burden, 1 Ala. 
 
 231.] 458 ; Perkins v. Wright, 3 Harr. & M'H. 
 
 (l) Davis V. Home, 2 Dow, 546 ; 2 Sch. 326 ; Hall v. Boss, 3 Hayw. 202 ; .1 Story 
 
 & Lef. 341, 748; Lennon v. Napper, lb. Eq. Jur. § 741.] 
 
 684. [See 1 Story Eq. Jur. § 775 ; Fonbl. {n) Eaiue v. Brown, 2 Ves! 307 ; Con- 
 
 Eq. b. 1, ch. 6, § 2, note (e) ; Winne v. stigan v. Hastler,2 Sch.& Lef. 160; 2 Bal. 
 
 Reynolds, 6 Paige, 407 ; Taylor v. Long- & Beat. 283 ; Howell v. George, 1 Mad. 1 ; 
 
 worthy, 14 Peters, 173 ; Perkins v. Wright, Wedgwood v. A,dams, 6 Beav. 600 ; 8 Beav. 
 
 3 Harr. & M'H. 326; Clitherall w. Ogil- 103. 
 
 vie, 1 Desaus. 263 ; Voorhees v. De Meyer, (o) Harnett v. Yielding, 2 Sch. & Lef. 
 
 2 Barb. 37 ; Lewis v. Woods, 4 Howard 554 ; EUard v. Ld. Llandaff, 1 Bal. & Beat. 
 
 (Missi), 86; Tevis w. Richardson, 7 Mon- 241; Peacock v. Penson, 11 Beav. 355. 
 
 roe, 656.] [Equity will not help a party in the per- 
 
 (m) Pope V. Harris, Lofft, 791 ; White's formance of an agreement made on pur- 
 case, 3 Swan. 108, n.; Coote v. Coote, 1 pose to, defraud creditors, i St. John v. 
 Sau.&Scu. 693; [Kerr, F. &M. (Am.ed.), Benedict, 6 John. Ch. Ill; Herrick v. 
 357 ; Martin v. Mitchell, 2 J. & W. 420 ; Grew, 5 Wend. 579 ; see M'Dermed v. 
 Bartlett v. Salmon, 6 'De G., M. & G. M'Cortland, Hardin, 18; Hannay v. Eve, 
 33; Higgins v. Samels, 2 J. & H. 460; 3 Cranch, 242; see Gano v. Renshaw, 2 
 Henderson v. Hays, 2 Watts, 148; Gould Barr, 34.] 
 V. Womack, 2 Ala. 83 ; Sears v. Boston, 
 
 [218] 
 
324 SPECIFIC PERFORMANCE. UNCERTAINTY. [CH. V. § HI. 
 
 ing the right of the claimant, for if any forfeiture should be in- 
 curred, it would be owing to his own act.(p) 
 
 32. Where a mortgagee with a power of sale foreclosed, and 
 then sold, and by the agreement stipulated that being a mort- 
 gagee with power of sale, she should enter into no covenant but 
 the usual one against incumbrances, and the purchaser required 
 a conveyance under the power, representing the. foreclosure as 
 defective, and relying on the agreement ; the seller's defence, 
 that she sold for her own benefit, and did not intend to be 
 answerable under the power of sale, the reference to which was 
 introduced into the agreement by mistake, wastheld to be valid, 
 and a specific performance was refused, except under the fore- 
 closure title.(g') 
 
 33. But although a covenant ought not to be performed lit- 
 erally, yet equity will execute it according to a conscientious 
 modification of it, to do justice as far as circumstances will 
 permit.(r) 
 
 34. Uncertainty may be a ground for" refusing to perform the 
 contract, but words in themselves vague may by reasonable in- 
 terpretation be made to express a certain object.(s) An agree- 
 ment for a * lease if the house was put into thorough repair, and 
 the drawing-rooms handsomely decorated according to the pres- 
 ent style, &c., was considered to be uncertain and unfit to be 
 enforced, although the plaintiff had proceeded to repair and 
 decorate the house.{/) Where the description was ambiguous, 
 
 (p) Helling v. Lumley, 3 De G. & J. dale v. Mace, 5 De G., M. & G. 103, 107; 
 
 493. Martin v. Cotter, 3 J. & L. 496, 507 ; 
 
 (q) Watson v. Marston, 4 De G., M. & Slieard v. Venables, 36 L. J. Ch. 922; Min- 
 
 G. 230. turn v. Bajiis, 33 Cal. 129; Try Specif. 
 
 (r) Davis v. Hoe, 2 Sch. & Lef. 348; Perfm. (2d Am. ed.) 165, 182, § 229 
 Lawder v. Blachford, Beat. 522. [See et seq. ; per Turner L. J. in South Wales 
 Champion v. Brown, 6 John. Ch. 398 ; Railway Co. u. Wythes, 5 De G., M. & G. 
 Eamsay v. Brailstbrd, 2 Desaus. 583 ; 888 ; Boston & Maine Railroad v. Bab- 
 James V. The State Bank, 17 Ala. 69.] cock, 3 Cush. 228; Nichols v. Williams, 
 
 (s) Sanderson v. Cockermouth &c. Ry. 7 C. E. Green (N. J.), 63; Carr (. The 
 Co. 11 Beav. 497 ; South Wales Ry. Co. Passaic Land Improvement & Building 
 o. Wythes, 5 De G., M. & G. 880. [See Co. 7 C. E. Green, 85; Rockwell i^. Law- 
 Newton u. Swazey, 8 N. H. 13; Canton rence, 2 Halst. Ch. 190; Whelan v. Sul- 
 Co. «, Northern &c. R. R. Co. 21 Md.383; livan, 102 Mass. 205; Munsell v. Loree, 
 Baker v. Hathaway, 5 Allen, 103 ; Ley- 21 Mich. 491 ; Buckmaster v. Thompson, 
 land V. Illingworth, 2 De G., F. & J. 253, 36 N. Y. 558.] 
 254 • Stewart v. Alliston, 1 Mer. 26 ; Drys- (t) Taylor v. Portington, 7 De G., M. 
 
 [214] 
 
CH. V. § m.] SPECIFIC PEKFORMANCE. UNCERTAINTY. 825 
 
 and the purchaser thought he was buying a moiety of some 
 property with a rent of 16/., whereas the 16/. was the rent of 
 the entirety, the court refused to enforce the contract against 
 him.(M) 
 
 35. And when that which the plaintiff is to give on a bill for 
 specific performance be something to be done, at a future time, 
 and which the court cannot enforce, the court will not give 
 relief, (a;) 
 
 36. Primd facie, a man who agrees to take an underlease 
 must know that he is bound by all the covenants contained in 
 the original lease, and therefore such a purchaser cannot object 
 to usual covenants. And if the deeds are brought to his solic- 
 itor for inspection before the contract, who does, or might inspect 
 them, he will be considered to have purchased with notice of the 
 covenants. (^) But although a man knows that the seller is only 
 a lessee, yet if the contract for sale contains stipulations, the 
 purchaser may rely upon therp, because such an agreement 
 amounts to a representation that the seller is not prevented from 
 granting such terms, and if they are contrary to the covenants 
 in the lease, the purchaser is not bound. (z) So if the purchaser 
 state the object which he has in purchasing, and the seller is 
 silent as to a covenant in the lease prohibiting that object, his 
 silence would be equivalent to a representation that there was 
 no such, prohibitory covenant, although he was nqt aware of the 
 extent or operation of the covenant.(a) 
 
 37. Where the rent is paid, it is no objection upon the sale of 
 the reversion, that the seller does not show who is liable to pay 
 it. But a statement by a seller, that the property is let on a 
 lease containing all the usual covenants to repair, knowing that 
 there was no person who could be made liable on those cove- 
 nants, would prevent a specific performance against the pur- 
 chaser.(&) 
 
 ^& G. 328 ; Brace «. Wehnert, 25 Beav. enants in a lease, and the seller is silent as 
 348 ; Parker v. Taswell, 27 L. J. N. S. to their existence, he will not be able to 
 812 ; Cooper v. Hood, 26 Beav. 293. enforce specific performance against a pnr- 
 («) Swaisland ». Dearsley,29Beav. 430. chaser buying in igncfl-ance of the core- 
 fa;) Waring v. Manchester &c. Ry: Co. nants. Martin v. Cotter, 3 J. & L. 506.] 
 7 Hare, 492. (?) Van v. Corpe, 3 My. & Ke. 269. 
 
 (y) Cesser v. Collinge, 3 My. & Ke. (o) Flight v. Barton, 3 My. & Ke. 282 ; 
 
 283 ; Flight v. Barton, lb. 282 ; Propert Morley v. Clavering, 29 Beav. 84. 
 
 V. Parker, lb. 280; Smith v. Capron, 7 (6) Flint u. Woodin, 9 Hare, 618. 
 Hare, 185. [But if there be unusual cov- 
 
326 
 
 SUPPEESSIO VERI : SUGGESTIO FALSI. [CH. V. § III. 
 
 38. Sfuppressio veri, as well as suggestio falsi, is a ground to 
 rescind an agreement, or at least not to carry it into execution, (c) 
 and even an industrious concealment, during a treaty, of the 
 necessary repair of a wall to protect the estate from a river, 
 which was a considerable * outgoing, has been deemed a suiE- 
 cient ground to withhold the aid of equity from a vendor.(rf) 
 
 39. So where there is a mistake between the parties as to 
 what was sold, the court will not interfere in favor of either 
 party.(e) And it will not carry an agreement into effect where, 
 by the death of a party, which was unknown to both seller and 
 purchaser, the seller had a greater interest than was supposed, 
 although he sold all his present and future interest.(/) And if 
 a man, being employed to bid for an estate to prevent its being 
 sold at an undervalue, by mistake buy another estate belonging 
 to another person previously put up on the same day and place. 
 
 (e) Buxton v. Cooper, 3 Atk. 383 ; 
 Howard v. Hopkins, 2 Atk. 371 ; Young 
 /o. Clerk, Pre. C. 138; 1 Bal. & Beat. 241 ; 
 Ld. Clermont v. Tasbugh, 1 J. & W. 112; 
 Cox V. Middleton, 2 Drew. 209 ; Dolman 
 V. Nokes, 22 Beav. 402. [See 2 Kent (11th 
 ed.), 490; Livingston u. Peru Iron Co. 2 
 Paige, 390 ; Warner v. Daniels, 1 Wood. 
 & M. 90, 108; Torrey J). Buck, 1 Green 
 Ch. 367 ; Waters v. Mattingley, 1 Bibb, 
 244; Story Sales, §§ 174-177, 381-385; 
 1 Story Eq. Jur. §§ 204-212 a: Kerr 
 F. & M. (Am. ed.), 94-100 ; Conover v. 
 Warden, 7 C. E. Green (N.,J.), 492. 
 " It is not eyery concealment, even of 
 facts material to the interest of a party, 
 which will entitle him to the interposition 
 of a court of equity. The case must 
 amount to a suppression of facts, which 
 one party, under the circumstances, is 
 bound in conscience and duty to disclose 
 to the other party, and in respect to which 
 he cannot, innocently, be silent." Za- 
 briskie Ch. in Conover o. Wardell, 7 C. 
 E. Green (N. J.), 498.] 
 
 (d) Shirley </. Stratton, 1 Bro. C. C. 
 410; Small v. Attwood, 6 CI. & Fin. 232. 
 
 (e) 1 Ves. jr. 211 ; 6 Ves. 339 ; 13 Ves. 
 427 ; Higginson v. Clowes, 15 Ves. 156 ; 1 
 Ves. & Bea. 524 ; Harnett v. Yielding, 2 
 
 [215] 
 
 Sch. & Lef. 554 ; Neap v. Abbott, C Coo. 
 333 ; Leuty v. Hillas, 2 De G. & J. 110; 
 [James v. State Bank, 17 Ala. 69 ; Cuff u. 
 Dorland, 50 Barb. 438 ; Spurr v. Bene- 
 dict, 99 Mass. 466 ; Solinger v. Jewett, 25 
 Ii'ed. 479 ; Greene v. Bateman, 2 WoQd. & 
 M. 359 ; Alvanley v. Kinnaird, 2 Mac. & 
 G. 7, 8 ; .Wuesthoff v. Seymour, 7 C. E. 
 Green (N. J.), 66; Gilroy v. Alls, 22 
 Iowa, 174; Snedaker v. Moore, 2 Duvall 
 (Ky.), 542; White v. Williams, 48 Barb. 
 222. But see Spurr v. Benedict, 99 
 Mass. 463 ; Kyle v. Kavanagh, 103 Mass. 
 356.] 
 
 (/) Colyeru. Clay, 7 Beav. 188; con- 
 sider the extent of the relief [But specific 
 performance may be enforced, although 
 the vendor supposed the land sold to be 
 less in quantity than it was, if he was well 
 acquainted with it and hacl all the means 
 of knowing the true quantity which the 
 vendee had, and his ignorance had no in- 
 fluence in inducing him to make the bar- 
 gain, although he would have considered 
 it highly advantageous to himself if he 
 had known how much land there really 
 was ; and although the vendee, when de- 
 manding performance of the agreement, 
 refused to exhibit it to the vendor. Davis 
 <j. Parker, 14 Allen, 94.] 
 
CH. V. § III.] SURPRISE. MISTAKE. BIDDINGS. 327 
 
 by the sarrle auctioneer, the court will not compel him to com- 
 plete the purchase, but will leave the seller to his action for 
 damages, (g") 
 
 40. Even mere surprise on third persons at a sale by auction, 
 has been deemed sufficient to prevent the court from assisting a 
 purchaser ; as where the iinown agent of the seller bid for the 
 estate on behalf of the purchaser, and other persons present, 
 thinking he was bidding as a puffer on the part of the vendor, were 
 deterred from bidding.(A) So, where a purchaser, previously to 
 the sale by auction, told the vendor that he would have nothing 
 to do with the estate, but afterwards went to the sale, where he 
 was considered by the company as a puffer, and bid 8,000/. for the 
 estate, which was knocked down to him at that sum from the 
 misapprehension of the person appointed to bid for the vendor, 
 who ought to have bid 9,000/., and the mistake was instantly 
 explained, a specific performance was refused.(i) So where a 
 seller intended to appoint a person to bid up to a price named, 
 but was dissuaded, and left it, as he thought, to be managed by 
 the auctioneer, who sold the property much below the sum to 
 the best bidder, the court refused to enforce the contract.(A;) The 
 rnere impression on the mind of the court that there has been 
 surprise or mistake, may induce the court to leave the plaintiff 
 to his remedy at law.(/) And representations of intended im- 
 provements by building, upon the faith of which the purchaser 
 bought, may be a sufficient defence against a specific perform- 
 ance.(m) The rights of the two parties to call upon the court 
 to enforce the contract may, although originally coextensive, 
 have ceased to be so, for one party may still have the right, 
 whilst the other by his conduct *may have forfeited it.(n) And 
 
 ((/) Malins v. Freeman, 2 Kee. 25. [It (7i) Twining v. Morris, 2 Bro. C. C. 
 
 is a good defence to a bill in equity for 326 ; 5 Ves. 338 ; 10 Ves. 305, 313, 398 ; 
 
 specific performance of an agreement to Willan u. Willan, 16 Ves. 72 ; Magrane 
 
 conrey land, that the defendant was led v. Archbold, 1 Dow, 107. 
 
 into a mistaice, without any gross laches (j) Mason v. Armitage, 13 Ves. 25 ; Hill 
 
 of his own, by an uncertainty or obscurity v. Buckley, 17 Ves. 394. 
 
 in the descriptive part of the agreement, (k) Day v. Wells, 7 Jur. N. S. 1004. 
 
 so that the agreement applied to a different (I) Neap v. Abbott, 1 C. Coo. 382. 
 
 subject from that which he understood at (m) Myers v. Watson, 1 Sim. N. S. 523, 
 
 the time. Western Railroad Corporation sup. ch. 4, s. 8, p. 160. 
 
 V. Babcock, 6 Met. 346 ; Spurr v. Bene- (n) South East Ey. Co. v. Knott, 10 
 
 diet, 99 Mass. 466, 467.] Hare, 122. 
 
 [216] 
 
328 FEAUDULENT MISREPRESENTATIONS. AGENT. [CH. V. § IH. 
 
 here we may observe, that trustees under the usual power of 
 sale, may have a reserved bidding fixed by a competent person, 
 and may buy in at that price.(o) 
 
 41. If the contract be founded on fraudulent misrepresenta- 
 tions, such as would in a court of law be sufficient to support 
 an action on the case, it may in a court of equity be rescinded. 
 The fraud may consist in the misrepresentation of a fact mate- 
 rial to the contract, where the truth of that is known to the one 
 party, and unknown to the other, and the misrepresentation is 
 intentionally made with a view of procuring a more advan- 
 tageous contract than the real facts, if truly stated, would have 
 warranted ; and in such a case equity would rescind the con- 
 tract. (/>) 
 
 42. If an agent, employed to sell an estate, sell it in a manner 
 not authorized by the authority given to him, a specific perform- 
 ance will not be decreed against the principal, although the estate 
 be sold for a greater price than he required for it,(q) At least if 
 an agent is empowered to sell- an estate by public auction, a sale 
 by private contract is not within his authority. But if an agent 
 is directed to sell an estate by private contract, and he dispose 
 of it by public auction for a larger sum than the principal rp- 
 quired, it still seems open to contend that the purchaser may 
 enforce a specific performance of the contract. 
 
 43. Where trustees for sale of an estate enter into a contract, 
 which would be deemed a breach of trust, equity will not only 
 refuse to interfere in favor of the purchaser, but will even at 
 the suit of the cestuis que trust restrain the trustees from exe- 
 cuting the contract, and the purchaser will be left to his remedy 
 at law.(r) 
 
 (o) In re Peyton's Settle. 8 Jur. N. S. {p) Lovell v. Hicks, 2 Yo. & Col. 46 ; 
 453. This case, if reported in time, should inf. s. 4 ; 6 De G., M. & G. 39, 40 ; Cony- 
 have been quoted in ch. 1, 5. 5. [See 30 beare v. New Brunswick &c. By. Co. 1 
 Bear. 252 ; Else v. Barnard, 28 Beav. 228 ; De G., F. & J. 578 ; New Brunswick &c. 
 Bousfield V. Hodges, 33 Beav. 90 ; Taylor v. Co. c. Muggeridge, 1 Drew. & Sm . 363. 
 Tabrum, 6 Sim. 281 ; Fry v. Pry, 27 Beav. (q) Daniel v. Adams, Amb. 495 ; 1 
 144 ; Farmer v. Dean, 32 Beav. 327. A Smith, 247 ; Helsham v. Langley, 1 Yo. 
 condition, reserving a bidding, although & Col. C. C. 175 ; White v. Cuddon, 8 
 it may, under the circumstances of the CI. & Fin. 766. 
 
 case, subject the trustees to liability to (r) Mortlock v. Buller, 10 Ves. 292; 
 
 their cestuis que trust, will bind bidders at Hill v. Buckley, 17 Ves. 394; Bridger u. 
 
 the sale. Levy v. Pendergrass, 2 Beav. Eice 1 J. & W. 74 ; Wood v. Eichard- 
 
 j^;5l son, 4 Beav. 174; Thompson v. Black- 
 
CH. V. § III.] SALE BY PEESONS NOT OWNERS. 329 
 
 44. "Where a power of sale is given to trustees, although to be 
 executed at the request of the tenant for life, it is discretionary 
 in them whether they will exercise the power : if they think it 
 disadvantageous to their cestuis que trust, they cannot be com- 
 pelled to adopt a contract entered into by the tenant for life for 
 sale of the estate.(s) But if the tenant for life sell, it may be 
 referred to the master to inquire whether he can, by application 
 to the trustees, procure a good title to be made.(i) 
 
 *45. If a person, entitled in default of execution of a power 
 of sale, contract to sell the estate, not as owner, but merely as 
 the agent of the trustees, and the contract could not, under the 
 circumstances, have been carried into execution against the trus- 
 tees, it will not be enforced against the agent, although he him- 
 self become entitled to the estate before the decree.(M) 
 
 46. Where a person takes upon himself to contract for the 
 sale of an estate, and is not absolute owner of it, nor has it in 
 his power by the ordinary cO|Urse of law or equity to make him- 
 self so; though the owner offer to make the seller a title, yet 
 equity will not force the buyer to take it, for every seller ought 
 to be a bond fide contractor ; (x) and it would lead to infinite 
 mischief if one man were permitted to speculate upon the sale 
 of another's estate. Besides, the remedy is not mutual, which 
 perhaps is of itself a sufficient objection in a case of this na- 
 ture.(a;^) In Armiger v. Clarke,(2/) a tenant for life contracted 
 
 stone, 6 Beav. 470; Ord v. Noel, 5 Mad. («) Mortlock v. BuUer, 10 Ves. 292.(1) 
 
 438 ; Turner v. Harvey, Jac. 169 ; Neale (x) Tendring v. London, 2 Eq. Ca. Ab. 
 
 V. Mackenzie, 1 Kee. 474 ; White v. Cud- 680, pi. 9 ; 10 Ves, 315 ; 1 J. & W. 421 ; 
 
 don, 8 CJ. & Fin. "66 ; Sugd. H. of L. Bryan v. Lewis, 1 Moo. & Ry. 386. [See 
 
 590 ; Sneesby v. Thome, 7 De G., M. & G. Hurley v. Brown, 98 Mass. 547 ; Drcsel v. 
 
 399 ; MulhoUand v. Mayor of Belfast, 9 Jordan, 104 Mass. 414 ; Fry Specif. Perf. 
 
 Ir. Ch. Kep.- 204, 292 ; Harper v. Hayes, (2d Am. ed.) § 875 ; 6 Law Rev. 756-759.] 
 
 2 Giff. 210; [Johnston ». Eason, 3 Ii-ed. (x^) [Jordan v. Deaton, 23 Ark. 704. In 
 
 Eq. 334.] ' 
 
 (s) Thomas v. Deering, 1 Kee. 729 ; sup. (y) Bun. HI ; post, ch. 8 ; Hamilton v- 
 
 ch. 3. Grant, 3 Dow, 33 ; Morgan v. Eainsford, 
 
 {t) Graham v. Olirer, 3 Beav. 124. 8 Ir. Eq. R. 399. 
 
 (1) From the papers in this cause, it appears that Mr. Buller treated with Mr. Mort- 
 lock as the owner of the estate, and this appeared from the receipt for the purchase 
 money, where the estate was called, " the property of John Buller, Esq.," and Mr. 
 Mortlock had not any knowledge whatever that the estate was in settlement. An 
 action brought by Mr. Mortlock against Mr. Buller, for breach of contract, came on 
 for trial, when it was compromised on terms very advantageous to the plaintiff. 
 
 [217] 
 
330 
 
 SALE BY PERSONS NOT OWNERS. [CH. V. § III. 
 
 to sell the inheritance ; after his death, his son, who was entitled 
 to the estate in remainder, and was not bound by his father's 
 coyenant, brought a bill for a specific performance against the 
 purchaser, and it was dismissed chiefly upon this principle, that 
 the remedy was not mutual. And in Noel v. Hoy,(z) it was 
 said, that if A. sells B.'s estate, although B. is willing to confirm 
 the contract, A. cannot enforce it; there is no mutuality.(a) So, 
 as we have seen, an infant cannot specifically enforce a contract 
 by himself for sale, because there is no mutuality.(A) But in 
 Williams v. Carter,(c) the estate was sold, and it was afterwards 
 
 Duvall V. Myers, 2 Md. Ch. 401, it was It has been alleged in support of this doc- 
 said to be well established, that, unless trine, in the first place, that the statute 
 there is to Tbe found in the contract the only requires the agreement to be signed 
 essential ingredient of mutuality, a court by the party to be charged therewith, or 
 of equity will not compel its specific execu- his agent, and is silent as to the signature 
 tion; and that mutuality depends upon the of the other party. Ante, 128, 129. But 
 question whether the agreement itself is this reasoning seems inconclusive, because 
 obligatory upon both parties, so that the the doctrine of mutuality is over and 
 court would coerce specific performance above, and quite independent of, the statute 
 upon the application of either against the of frauds ; that statute may be satisfied, 
 other. And it was further held in this case and the doctrine in question remain unsat- 
 that a party not bound by the agreement isfied. A more satisfactory reason which 
 itself has no right to call u'pon a court of has been alleged, is that by filing the bill 
 equity to enforce performance against the the plaintiff has waived the original want 
 other contracting party, by submitting in of mutuality, and rendered the remedy 
 his hill to perform his part of the engage- mutual. On the same grounds, an agree- 
 ment; the right of a party to the aid of ment contained in a deed-poll was enforced, 
 the court does not depend upon his subse- notwithstanding an objection which was 
 quent offer to perform the contract on his taken upon the unilateral nature of the 
 part, but upon its original obligatory char- agreement. Fry Specif Perfm. (2d Am. 
 acter. See the rule, with its exceptions ed.)202, §§295-298 ; see Old Colony Rail- 
 and limitations, stated in Fry Specif. Perf road Corp. v. Evans, 6 Gray, 25, 31 ; Far- 
 (2d Am. ed.) 198, § 286 et seq. ; Johnson v. ley v. Palmer, 20 Ohio St. 225.] 
 Shrewsbury & Birmingham Railway Co. (z) V. C. 23 Feb. 1820, MS. 
 3 De G., M. & G. 927 ; Stocker v. Wedder- (a) See Ld. J. Stuart v. London & North- 
 burn, 3 K. & J. 393 ; Dresel v. Jordan, western Ky. Co. 1 De G., M. & G. 721 ; 
 104 Mass. 407. Aprominent and common Hawkes v. Eastern Counties Ey. Co. 76. 
 exception to the principle of mutuality, 737. 
 
 which is not admitted to be valid in Duvall 
 V. Myers, cited above, is afforded by the 
 doctrine which was established very soon 
 after the passing of the statute of frauds, 
 
 (6) Flight V. BoUand, 4 Rus. 298. 
 
 (c) MS. V. C. 1821 ; London &Bir. Ry. 
 Co. V. Winter, 1 Cra. & Phil. 57 ; Adams 
 V. Broke, 1 ,Yo. & Col. C. C. 627 ; Salis- 
 
 that in case of agreements which, by that bury v. Hatcher, 2 Yo. & Col. C. C. 54 ; 2 
 
 statute, are required to be in writing, a Ir. C. L. R. 155 ; Warburton v. Sandys, 
 
 party who has not signed the agreement 14 Sim. 622 ; Fennelly v. Anderson, 1 Ir. 
 
 may enforce it against the one who has. Cha. R. 706. 
 
CH. V. § m.] seller's title, buyer. 331 
 
 discovered that it was bound by marriage articles, which it was 
 decided in a suit instituted for the purpose, authorized the intro- 
 duction of a power of sale in the trustees, and thereupon a bill 
 was filed by them and the seller for a specific performance. The 
 vice chancellor overruled the objection, that there was no mutu- 
 ality in the agreement, and decreed a specific performance. 
 ' Where trustees had a power of sale at the request of the ten- 
 ant for life, a bill filed by them against a purchaser was con- 
 sideredv as not maintainable, unless they could show that the 
 tenant for life had duly consented to the sale before the filing 
 of the bill.(rf) 
 
 47. But of course the rule does not apply to a seller in pos- 
 session, where it turns out that he has not a title to a small part ; 
 he may purchase the part, and make good his own sale ; (e) or 
 where, although there is a power to impeach his title to the 
 whole estate, he obtains a release of the adverse right before the 
 purchaser is entitled to be released. (/) If the seller bond fide 
 believe that he has the entire interest, and is ultimately able to 
 make a title, the contract may, it seems, be enforced. If in such 
 a case the purchaser has a right to rescind the contract, he must 
 insist upon that right at once, he cannot treat the contract as 
 valid, and require the concurrence of the person entitled, and 
 then declare the contract is at an end.(g") 
 
 48. On the other hand, where a bond fide vendor has not a 
 title to the estate the court will leave the purchaser to his rem- 
 edy upon the articles at law,(/j) where in most cases he would 
 obtain nominal damages only.(i) But where the purchaser is 
 willing to take the title, such as it is, it is apprehended that he 
 may do s,o.(k) Of course where the master's report was in 
 favor of the title, the seller was not permitted to dispute his 
 own title.(Z) 
 
 (d) Adams v. Broke, 1 Col. C. C. 627. 233 ; Comwall v. Williams, Col. P. C. 
 
 (e) Chamberlain v. Lee, 10 Sim. 444. 390; Bennet Col. v. Carey, 3 Bro. C. C. 
 (/) Eyston v. Simonds, 1 Yo. & Col. C. 390. 
 
 C. 608. [See Voorhees v. De Meyer, 2 (i) Flureau u. Thornhill, 2 Black. 1078 ; 
 
 Barb. 37 ; McKay ii. Carrington, 1 McLean, 3 Bos. & Pul. 167 ; Brig's case. Pal. 364, 
 
 64.] ;">«'• 
 
 {g) Murrell v. Goodyear, 2 Giff. 51 ; (k) See Harnett v. Yeilding, 2 Sch. & 
 
 aff'd 1 De G., P. & J. 432 ; infra, ch. 9, Lef. 549 ; post, ch. 11. 
 
 s. 2. (l) Bradley v. Munton, 15 Beav. 460. 
 
 (A) Crop V. Norton, 2 Atk. 74 ; 9 Mod. 
 
 ^ [218] 
 
332 NOMINAL CONTRACTOB. [CH. V. § III. 
 
 49. But where a tenant for life with a power of sale, first set- 
 tling other estates of equal or better value, sold the estate under 
 an apprehension that he had power to convey the fee, the court 
 refused to compel him to settle another estate, in order to enable 
 him to complete his contract.(OT) 
 
 50. To enable the court to decree a specific performance 
 against a vendor, it is not, however, necessary that he should 
 have the legal estate ; for if he has an equitable title, a perform- 
 ance in specie will be decreed, («) and he must obtain the concur- 
 rence of the persons seised of the legal estate. 
 
 51. Although, as we have seen, a vendor cannot demand the 
 aid of equity, unless he is a band fide contractor, yet the circurn- 
 stance that the purchaser is a nominal contractor, and purchases 
 in trust for another person is immaterial ; (o) and a quarrel be- 
 tween the vendor and the real purchaser,(p) o'r a bare refusal by 
 the vendor to deal * with the real contractor,(5) is not a sufficient 
 ground to refuse a performance in specie. 
 
 52. But if a person apply to purchase an estate, and the ven- 
 dor expressly refuse to treat with him, unless the money is paid 
 down, which he is unable to do, but procures some other person, 
 to purchase the estate on his account, it seems clear that at least 
 the time appointed for payment of the money will be deemed of 
 the very essence of the contract.(r) If a person apply to pur- 
 chase an estate on behalf of A., for whom the vendor has a great 
 value or affection, and the vendor is induced to take less for the 
 estate than he otherwise would have done ; or even perhaps, 
 without this circumstance, the agreement cannot be enforced 
 against the vendor, if it be made on behalf of any other person 
 than A. ; but if A. will patronize the sale, execution of the agree- 
 ment must be compelled, although he may sell the estate the 
 next day to the fraudulent purchaser.(s) The case of Scptt v. 
 
 (m) Howell v. George, 1 Mad. 1. (r) Popham v. Eyre, LofFt, 786; 1 Bro. 
 
 (n) Crop !J. Norton, 2 Atk. 74 ; Costigan C. C. 95, an incorrect report; O'Herlihy 
 
 V. Hastier, 2 Sch. & Lef. 160. o. Hedges, 1 Sch. & Lef. 123; Feather- 
 
 (o) Hall V. Warren, 9 Ves. 605. stonhaugh v. Fenwick, 17 Ves. 298. 
 
 (p) S. C. Nelthorpe v. Holgate, 1 Col. (s) Philips v. Duke of Buckingham, 1 
 
 C. C. 203. Ver. 227 ; Bonnett v. Sadler, 14 "Ves. 527 ; 
 
 (q) Ld. Irnham v. Child, 1 Bro. C. C. Fellowes v. Ld. Gwydyr, 1 Sim. 63; 2 
 
 92. North's Life of Ld. Keeper, 130, 131. 
 
 [219] 
 
CH. V. § m.] PURCHASE IK A FALSE CHARACTER. 333 
 
 Langstaffe,(<) was decided on the same principle. A purchaser 
 of a house adjoining to a house occupied by the vendor, agreed 
 with the vendor, though it was not made part of the written 
 contract, that he would not lease the house to any person not 
 agreeable to him. Langstaffe applied for a lease, and stated that 
 he knew the vendor intimately, and that there would be no ob- 
 jection to grant him a lease. The vendor, however, disapproved 
 of Langstaffe, and so far from knowing him intimately, had only 
 seen him at a tavern. Lord Camden said, this was the case of 
 Philips V. The Duke of Buckingham. Nobody, who had read 
 that case, could easily forget it. And he set aside the agreement 
 which Langstaffe had obtained, with costs. A similar case is 
 mentioned in Hawkins's Life of Johnson, which was also de- 
 cided on the authority of Philips's case. Peele the bookseller had 
 a house near Garrick's, at Hampton. Peele had often said that, 
 as he knew it would be an accommodation to Garrick, he had 
 given directions that at his decease he should have the refusal of 
 it. On Peek's death a man in the neighborhood applied to his 
 executors, pretending that he had a commission from a friend or 
 relation of Peele's, who lived in the country, to buy the house at 
 any price, and he accordingly obtained a conveyance of it to a 
 person nominated by him under a secret trust for himself. Gar- 
 rick filed a bill against him, and the purchase was decreed fraud- 
 ulent, and set aside with costs. 
 
 53. But although a seller falsely assume the character of an 
 agent to another, when he is himself the real seller, and the pur- 
 chaser be deceived by the'representation, yet it has been decided 
 that, if the * purchaser cannot prove damage, or that the misrep- 
 resentation induced him to enter into the contract, a specific per- 
 formance will not be refused. (m) But where a purchaser had a 
 suspicion of the ownership of the subject offered for sale, — a 
 Claude, — and the ownership, in his view, enhanced the price, 
 and the seller's agent, knowing that the purchaser labored under 
 a deception, permitted him to remain in it, although the point 
 was one which he thought material to influence his judgment, 
 the contract was held to be void at law.(.'r) 
 
 (t) Lofft, 797, 798. 1 Bus. & My. 83 ; Crosbie v. Tooke, 1 My. 
 
 (m) Fellowes v. Ld. Gwydyr, 1 Sim. 63 ; & Ke. 431. 
 
 [x) Hill V. Gray, 1 Star. 434 ; Pilmore 
 
 [220] 
 
334 NO LEGAL REMEDY. PENALTY. [CH. V. § HI. 
 
 54. An agreement for the sale of an annuity for three lives, to 
 be named by the purchaser, and to commence immediately,' will 
 be decreed, although the lives have not been named, if the delay 
 has been occasioned by the seller.(^) 
 
 55. Although the agreement be void at law, yet a specific per- 
 formance will be decreed, if there is a clear ground for the inter- 
 ference of equity, according to the general rules of the court. 
 This is now clear,(2) although, in some cases, the contrary has 
 been holden.(o) Thus a bond from a woman to her intended 
 husband has been enforced in equity, although void at law by 
 the intermarriage ; and an agreement for sale of an estate has 
 been decreed against an heir at law, although his ancestor died 
 before the time appointed to convey the estate, and therefore 
 no action would lie against him. In the first case, the bond 
 was written evidence of the agreement, and being upon valuable 
 consideration, it ought to be executed jn equity. In the other 
 case, the articles were a lien upon the land ; the contract being a 
 purchase in equity. 
 
 56. But there are very few cases in which a court of equity 
 can decree a performance of an agreement upon which there can 
 be no action at law, accordififf to the words of the articles and the 
 events that have happened.[b) 
 
 57. A proviso, in a contract for sale, that if either party break 
 the agreement he shall pay a sum of money to the other, will 
 only be considered in the nature of a penalty ; (c) and conse- 
 quently a specific performance will be decreed just as if no such 
 
 V. Hood, 5 Bing. N. C. 97 ; Keates v. Earl Ca. Ab. 15, 23, notis; and Fonbl. n. (c) to 
 
 Cadogan, 10 C. B. 591. 1 Trea. Eq. 138, & u. (h.) to p. 204, Ih.; 
 
 (y) Pritchard v. Ovey, 1 J. & W. 396. [1 Story Eq. Jur. §§ 738, 739 ; see Tevis 
 
 {z) Winged v. Lefebury, 2 Ep. Ca. Ab. v. Richardson, 7 Monroe, 656 ;^Hickman 
 
 32, pi. 43 ; Acton v. Pierce, 2 Ver. 480 ; y. Grimes, 1 A. K. Marsh. 87 ; Smith v. 
 
 Cannel v. Buckle, 2 P. Wms. 243 ; Norton Carney, 1 Litt. 295.] 
 
 V. Mascall, 2 Ver. 24 ; Hall v. Hardy, 3 P. (5) Whitmel v. Parrel, 1 Ves. 256. 
 
 Wms. 187 ; E. I. C. v. Donald, 9 Ves. (c) Howard v. Hopkins, 2 Atk. 371 ; 2 
 
 275. Sch. & Lef. 684 ; Magrane- v. Archbold, 
 
 (a) Ld. Normanby v. Duke of Devon. 2 1 Dow, 107 ; Davies v. Penton, 6 B. & C. 
 
 Pree. 216 (1); Dr. Betesworth v. D. and 216. 
 C. of St. Paul's, Sel. C. C. 66 ; see 2 Ep. 
 
 (1) Ld. Soniers called in the two chief justices on the point, whether the party could 
 recover damages at law on the letters which liad passed. They held not, and he dis- 
 missed the bill. MS. 
 
CH. V. § III.] POWERS OF COMMON LAW COUBTS. 335 
 
 proviso had been * inserted ; (d) nor will it vary the case that the 
 sum is to be paid as liquidated damages.(e) 
 
 58. Where an action is brought for the recovery of the pen- 
 alty, to entitle the party bringing it to recover, he ought punctu- 
 ally, exactly, and literally, to have completed his part.(/) And 
 it has been said that if, for breach of an agreement, to which a 
 penalty was annexed, either party recover damages at law be- 
 yond the penalty, equity will relieve against the verdict, on 
 payment of the penalty- only ; (g-) but this is not well founded, 
 for if the party have two remedies at law, one for breach of con- 
 tract upon the covenant, or agreement, toties quoties; the other 
 for the penalty at once,(A) there appears to be no pretence for 
 equity to relieve, although where large damages have been re- 
 covered at law, under a covenant which it was unconscientious 
 strictly to enforce, the party may be relieved in equity, upon 
 offering to perform the covenant according to conscience; but 
 even this seems, in some measure, to be usurping the province 
 of a jury, and the equity is administered with great caution. (A^) 
 
 59. Lastly, to enable equity to enforce a contract, it must be 
 enabled to specifically perform every part of it.(i) It cannot 
 decree a specific performance with a variation. (At) 
 
 60. And now courts of law may compel a discovery from 
 either party,(/) and by mandamus in any action, except replevin 
 and ejectment, may compel a defendant to fulfil any duty in the 
 
 ((/) Hopson u. TreTor, 1 Str. 533 ; 2 P. ed.) 418, 419, & notes; Livingston v. 
 
 Wms. 191 ; Parks u. Wilson, 10 Mod. Tompkins, 4 John. Ch. 431 ; Grigg v. 
 
 515; Belchier v. Eeynolds, 2 Ld. Ken. 2 Laudis, 6 C. E. Green (N. J.), 494, 501, 
 
 part, 87 ; Sainter v. Ferguson, 1 Mac. & 502.] 
 
 G. 286 ; [Gordon v. Brown, 4 Ired. Eq. (i) Gervais v. Edwards, 2 Dru. & War. 
 
 399 ; see Ayers v. Pease, 12 Wend. 393.] 80 ; Hills v. CroU, 2 Phil. 60 ; Williamson 
 
 (e) Darbey v. Whitaker, 4 Drew. 134; v. Wootton, 3 Drew. 210; Stoeker o. 
 
 see Betts v. Burch, 4 H. & N. 506. Wedderburn, 3 K. & J. 393 ; Hope u. 
 
 (/) Duke of St. Alban's v. Shore, 1 H. Hope, 22 Beav. 351 ; [Fry Specif. Perfm. 
 
 Black. 270. (2d Am. ed.) 334 et seq.; King v. Euck- 
 
 {g) Shenton v. Jordan, Bun. 132; the man, 5 C. E. Green (N. J.), 316.] 
 
 reporter adds a query, for this seems an (k) Nurse v. Ld. Seymour, 13 Bear, 
 
 extraordinary opinion. 254. 
 
 (A) Harrison v. Wright, 13 East, 343. (/) 14 & 15 Vict. c. 99, s. 6; 17 & 18 
 
 (A') [See 2 Story Eq.Jur.§ 1313 etse?.; Vict. c. 125, s. 50-57; Coster y. Baring, 2 
 
 Skinner v. Dayton, 2 John. Ch. 526 ; Slo- Com. L. R. 811 ; Jessel v. Chaplin, 2 Jur. 
 
 man v. Walter, 1 Bro. C. C. (Perkins's N. S. 931 ; see now 23 & 24 Vict. c. 128. 
 
 [221] 
 
336 POWERS OF COMMON LAW COURTS. [CH. V. § III. 
 
 fulfilment of which the plaintiff is personally interestecl,(m) or 
 in case of default, may direct the act to be done by the plaintiff 
 or some other person appointed by the court at the defendant's 
 expense,(w) and may compel the return of a specific chattel de- 
 tained. (o) And in all cases of breach of contract or other injury, 
 where the party is entitled to maintain and has brought an ac- 
 tion, may grant an injunction against the repetition or continu- 
 ance of such breach of contract, &c., and may also, in the same 
 action, grant damages or other redress.(jo) And equitable de- 
 fences are now available at law,(^) but the plaintiff may reply 
 facts which avoid the defence upon equitable grounds.(r) And 
 * if the court or judge think that the equitable jurisdiction cannot 
 be dealt with by a court of law so as to do justice, the equitable 
 plea or equitable replication may be struck out on such terms as 
 may seem reasonable.(s) These powers appear to give to courts 
 of law a concurrent jurisdiction with equity in specific perform- 
 ance ; for a seller, for example, has imposed upon himself the 
 duty of conveying the estate, and the purchaser as plaintiff has 
 a personal interest in the fulfilment of that duty, and conse- 
 quently a mandamus will lie to compel the seller to convey the 
 estate upon payment of the purchase money. Courts of law, 
 however, have not the requisite machinery to enable them to 
 carry these powers into effect. It has been held that the general 
 power to grant injunctions is confined to cases where it is to be 
 granted simply and without terms,(<) and that courts of law can 
 give relief only upon an equitable defence, where the facts would 
 entitle the defendant to an absolute and perpetual injunction 
 against the judgment. If the injunction is to be temporary or 
 conditional in equity, common law cannot pronounce an equi- 
 table decree. The power to grant a specific performance of an 
 agreement for a lease has been denied, and the jurisdiction has 
 been confined to those cases where they might have been a man- 
 
 (m) 17 & 18 Vict. c. 125, s. 68-73. (r) Scott v. Sykes, 22 Fos. & Fin. 191. 
 
 (n) Ih. s. 74. (s) 17 & 18 Vict. c. 125, s. 83-86. 
 
 (o) lb. B. 78. (() Mines Royal Society v. Magnay, 10 
 
 (p) lb. s. 79-82. Ex. 489 ; Gorely v. Gorely, 1 H. & N. 
 
 (q) See Fitzgerald v. M'Cullagh, 7 Ir. 144; Flight o. Gray, 3 C. B. N. S. 320 ; 
 
 C. L. Rep. 457 ; Gorsucli v. Cree, 6 Jar. Davis v. Nisbett, 10 C. B. N. S. 752. 
 N. S. 1342, C. B. ; [Hicks v. Sheppard, 4 
 Lansing (N. T.), 335.] 
 
 [222] 
 
CH. V. § III.] EQUITY JUDGES TO DECIDE LEGAL POINTS. 337 
 
 damus before the act passed, and in which the interest of the 
 party was of a public nature, or arose under an act of par- 
 liament.(M) The courts have been driven to these determina- 
 tions because they have not the requisite machinery, but this 
 difficulty, which was foreseen, was urged in vain in parliament. 
 The bill originally, if the writer's memory do not fail him, was 
 framed so as to warrant the rules as now laid down, but it was 
 altered as it now stands, and it seems somewhat difficult to sup- 
 port the limited construction which it has received. Equity will 
 still exercise its own jurisdiction if the plaintiff has not pleaded 
 his equitable defence at law ; but if he has, the court will leave 
 the case to the decision of the court of law.(a;) Courts of equity 
 have n6w power to summon juries, and to determine questions 
 of fact and law,(y) but they have not exercised the power fre- 
 quently, for juries would disturb the general arrangement of the 
 equity courts. The judges are daily occupied in hearing argu- 
 ments, not speeches, and in deciding important points of law 
 upon which the right to property frequently of great value de- 
 pends, and no judge can perform those duties satisfactorily if 
 his attention is to be diverted by the attendance of juries, and 
 the passionate addresses of counsel. The common law *judges 
 take care to separate jury trials from the cases upon which they 
 have to deliver opinions on important points of law, whilst the 
 equity judges would find it difficult to make such a division, for 
 with them every day is what may be termed a paper day. A bill 
 now before parliament which has not yet passed, but which will 
 certainly pass,(2:) has for its object to compel the equity judges 
 to decide, not only the equity, but also every question of law and" 
 fact in cases within their jurisdiction, without having recourse to 
 a court of law,{z^) but still, of course, the act does not prohibit 
 the equity judges from sending questions of fact to be tried by a 
 
 (m) Benson v. Paul], 27 L. T. 78 ; general orders under it. [See 2 Dan. Ch. 
 
 Wodehouse v. Parebrother, 5 E. &B. 277; Pr. (4th Am. ed.) 1071.] 
 
 Wood V. Copper Miners Co. 17 C. B. 561 ; (z) An act to regulate the procedure in 
 
 Benson v. Paull, 6 E. & B. 273 ; Clerk v. the courts of chancery in England and 
 
 Laurie, 1 H. & N. 452. Ireland, and ihe court of chancery of the 
 
 (x) Farebrother w. Welchman, 3 Drew, county palatine of Lancaster. [See 2 Dan. 
 
 122; Gompertz v. Pooley, 4 Drew. 448. Ch. Pr. (4th Am. ed.).] 
 
 (y) See 23 & 24 Vict. c. 128, and the [z^] [2 Dan. Ch. Pr. (4th Am. ed.) 
 
 22 
 
 1071.] 
 
 [223] , 
 
338 
 
 EQUITY JUDGES TO DECIDE LEGAL POINTS. [CH. V. § IV. 
 
 jury in a common law comt,{z^) and they are still to be allowed 
 to sit with the assistance of a judge of the common law courts. 
 The policy of this act may well be doubted. A great disposition 
 has been shown to compel the equity judges to assume the func- 
 tions of the common law judges, and to extend to the common 
 law judges all the powei's and jurisdiction of courts of equity. 
 Elaborate clauses for the latter object were included in the gov- 
 ernment bill, which is now the 23 & 24 Vict. c. 136, but they 
 were all struck out (with the exception of two harmless ones, in 
 s. 1 & 2), by the select committee in the Lords, after full consid- 
 eration, upon very solid grounds. The division of the courts 
 into law and equity works well, and courts of law have not the 
 time, the knowledge, or the machinery, — all which are requisite 
 to the exercise of the equitable jurisdiction. 
 
 SECTION IV. 
 
 OF THE REMEDIES FOE A BKEACH OP CONTRACT. 
 
 18. 
 
 20. 
 21. 
 
 /. The remedy in equity. 
 Vendor's right. 
 Special case under act. 
 Claim under orders abolished. 
 Abolition of masters ; chamber business ; 
 
 new modes of procedui'e. 
 Appeals from chief clerk. 
 Injunction at law ; damages. 
 
 {Directions on specific performance ; 
 proceedings at chambers on title; 
 further directions; decree; discov- 
 ery; documents. 
 Decree on motion. 
 Injunction to prevent injury. 
 Reference of title. 
 
 >■ Purchase money ordered into court. 
 
 ( Seller ordered to pay in deposit. 
 ( Multifariousness ; sale in lots. 
 Receivers, agents not proper parties. 
 Nor adverse claimants . — Mortgagee not 
 a proper party. 
 
 23. Plaintiif proving different agreement. 
 
 25. Upon dismissal of bill, no account. 
 
 26. Damages to purchaser; no compensation 
 
 for defective title. 
 
 27 ) 
 
 2g' [ Damages under 21 & 22 Vict. c. 27. 
 
 * 29. No compensation after contract com- 
 pleted. 
 
 30. New defence by purchaser. 
 
 31. Seller cutting ornamental timber pend- 
 
 ing suit. 
 
 II. The remedy at law. 
 
 32. Action by purphaser for fraud after 
 
 decree. 
 
 33. Party having waived, cannot bring ac- 
 
 tion after decree. 
 
 34. Nor where bill dismissed for want of 
 
 title. 
 
 35. Actions by parties after bill dismissed. - 
 
 36. For costs. 
 
 37. A second action not allowed. 
 
 (2^) [2 Dan. Ch. Pr. (4th Am. ed.) 1071.] 
 [224] 
 
CH. V. § IV.] 
 
 EIGHT TO SPECIAL CASE. 
 
 339 
 
 39.^ 
 
 40. > Money had and received. 
 
 41.) 
 
 42. No damages for loss of bargain. 
 
 43. Loss by selling out of the funds. 
 
 44. Interest on deposit. 
 
 45. Expenses of investigating title. 
 
 46. Particulars of fact and law. 
 
 47. Extent of damages to seller. 
 
 48. Action by heir or executor of purchaser. 
 
 49. Delivery of agreement to be stamped. 
 
 50. Agreement by letters, one stamp. 
 
 51. Mutual covenants. 
 
 52. Seller to execute conveyance before ac - 
 
 tion. 
 
 53. When price is payable. 
 
 54. Purchaser to tender conveyance and pur- 
 
 chase money. 
 
 55. Unless there is a bad title, or seller has 
 
 resold. 
 
 57. JV^e exeat. 
 
 58. Mandamus ; specific performance at law. 
 
 1. If either the vendor or vendee refuse to perform the con- 
 tract, the other may bring an action for breach of contract, or 
 file a bill for a specific performance ; (a) although it appears to 
 have been formerly thought that as a vendor only .wants the 
 purchase money, his remedy was at ]aw.(6') 
 
 I. As to the remedy in equity. 
 
 2. Although the phrase "filing a bill for a specific perform- 
 ance," will still be retained, yet now the parties by consent may, 
 instead of filing a bill and having the contract performed under 
 the direction of the court, by consent state a special case for the 
 opinion of the court, and obtain a decision of that court as to 
 the title or evidence of title, or as to the parties to or the form 
 of any deed or instrument for carrying the contract into effect, 
 or as to any other matter within the jurisdiction of the court. 
 And the court was authorized to take the opinion of a court of 
 law. The declaration will be binding as a decree, and may be 
 reheard or reviewed. (c) The act contains all necessary clauses 
 for giving effect to such declaration. The case is treated as a 
 bill, and is to be signed by counsel. The same counsel may 
 
 (a) Lewis v. Ld. Lechmere, 10 Mod. 503. inson, 5 Peters (U. S.), 264, 278 ; Brown 
 
 [See Fry Specif. Perf. (2d Am. ed.) 52, § 
 23 ; Clifford v. Turrell, 1 Y. & Col. C. C. 
 138, 150 ; Walker a. Eastern Counties Ey. 
 Co. 6 Hare, 594; Old Colony Kailroad 
 Corp. V. Evans, 6 Gray, 25 ; Hilliard v. 
 Allen, 4 Cush. 532.] 
 
 V. Huff, 5 Paige, 235. It has been held in 
 Pennsylvania that a bill by a vendor, 
 for specific performance, will not be enter- 
 tained where the object is merely to obtain 
 payment of the purchase money. Dech's 
 Appeal, 57 Penn. St. 467; Kauffman's 
 
 (6) Armiger v. Clark, Bun. Ill ; Withy Appeal, 55 Penn. St. 383.] 
 
 V. Cottle, 1 Sim. & Stu. 174; Kenney v. 
 "Wenham, 6 Mad. 315 ; Doherty v. Water- 
 ford & Limerick' Ey. Co. 13 Ir. Eq. E. 
 538 ; Wilson v. Keating, 5 Jur. N. S. 815 ; 
 [1 Story Eq. Jar. § 723 ; Cathcart v. Eob- 
 
 (c) 13 & 14 Vict. c. 35, s. 1, 14, 16 ; and 
 3. 32 as to procedure ; Domville w. Lamb, 
 9 Hare App. 55 ; Gen. Orders, 2 Nov. 
 1850 ; and a further order not yet printed, 
 directing special cases to be divided into 
 
340 EIGHT TO SPECIAL CASE. [CH. V. § IV. 
 
 • 
 
 sign for *both parties,(6?) and the costs are within the jurisdic- 
 tion of the court.(e) The court may make a declaration as to 
 the interests of the parties before the court, and refuse to make 
 any declaration as to the rights of unborn issue,(/) And now 
 the court of appeal in chancery, and the master of the rolls, and 
 the vice chancellors, may severally sit, with the assistance of any 
 common law judge, upon the request of the chancellor to any 
 such judge.(g-) But the court is no longer at liberty to direct a 
 case for the opinion of a court of law, but the court itself has 
 power to determine any questions of law which in its judgment 
 shall be necessary to be decided previously to the decision of the 
 equitable question at issue between the parties,(A)(l) and in- 
 deed, as we have seen, is required to do so. 
 
 3. By general orders of the court of chancery, made under the 
 authority of several acts of parliament,(i) a party instead of 
 filing a bill for a specific performance might, without special 
 leave of the court, file a claim in the record and writ clerks' 
 office, when he was entitled to the specific performance of an 
 agreement for the sale or purchase of any property and was seek- 
 ing such specific performance. And a very short form was pro- 
 vided by the orders for making such claim ; (k) but now pro- 
 ceedings by claim have been abolished. (^) 
 
 paragraphs; 15 & 16 Vict. c. 86, s. 50; 1850; 7 June, 1850; as to Ireland, see 13 
 
 Gosling V. Gosling, 1 Johns. 265 ; aff' d & 14 Vict. c. 89, s. 11, 14, 27. 
 28 L. J. N. S. 899 ; Bell v. Cade,. 2 J. &. (Jc) Order 1 ; Order 6, 10, 30, 31, 32; 
 
 H. 122. As to trials of questions of fact Marshall v. Davies, 14 Jur. 997 ; Bromitt 
 
 and special cases on questions of law in u. Moor, 9 Hare, 374 ; Goode v. West, lb. 
 
 a summary way in courts of law, see 15 378 ; Penny v. Penny, 9 Hare, 39 ; Johns 
 
 & 16 Vict. c. 76, s. 42-48, and s. 179, 180 ; v. Mason, 9 Hare, 29 ; Jackson v. Grant, 
 
 for Ireland, 16 & 17 Vict. c. 113, s. 92-94. 15 Jur. 72; Smith v. Constant, 76. 97 ; 
 
 {d) Ex parte Craig, 15 Jur. 763. Eccles v. Cheyne, 9 Hare, 215 ; Holden v. 
 
 (e) Jackson v. Craig, 15 Jur. 811. , Calcraft, 14 Jur. 846 ; Hemming v. Mayo, 
 
 (/) Greenwood v.. Sutherland, 10 Hare, 14 Jur. 847 ; Barford v. Barford, 24 L. T. 
 
 12 ; Fletcher v. Rogers, 75. 13 ; Garlick v. 88 ; Burnley v. Eastern Counties Ey. Co. 
 
 Lawson, 76. 14. . 5 De G. & Sm. 314; Anon. 9 Hare App. 
 
 {g] 14 & 15 Vict. c. 83, s. 8 ; Hay v. 11 ; Wilkinson v. Stringer, 9 Hare App. 
 
 WiUoughby, 9 Hare App. 30. 23 ; Tynte v. BuUer, 23 L. J. 504. 
 
 (A) 15 & 16 Vict. c. 86, s. 61, 62. {I) VIII. Con. Ord. 2, 4. 
 
 (i) Gen. Orders, 22 April, 1850 ; 3 June 
 
 (1) Now any court may direct a case to any other superior court in any other part of 
 the Queen's dominions for their opinion upon the law of the case as administered by 
 them, 22 & 23 Vict. c. 63. 
 [225] 
 
CH. V. § IV.] NEW PROCEDURE. 341 
 
 4. By a later act the ofHce of master is abolished, and the 
 masters have been released, and the business is now conducted 
 by the judges, in open court or in chambers, with the assistance 
 of clerks.(»i) The powers formerly vested in the masters may 
 now be exercised by the master of the rolls and vice chancellors 
 respectively. And by another statute,(w) great alterations were 
 made in the proceedings of the court with a view to lesrien 
 expenses, find to insure as much * dispatch as is consistent with 
 the due administration of justice, to which only a slight refer- 
 ence can here be made. Writs of subpoena and summons are 
 abolished, and bills are to be printed, and a print is to be 
 delivered to the defendant.(o) Bills are to contain a concise 
 narrative of the material circumstances divided into distinct 
 paragraphs, numbered consecutively, and to pray for specific as 
 well as general relief, but are not to contain interrogatories, but 
 interrogatories may be filed in the record office.(^) The defend- 
 ant's answers are placed under new regulations. (5) And under 
 certain restrictions, the proof on both sides may be by affidavit, 
 or otherwise orally, before the examiners, in the presence of the 
 parties ; and even in that case, affidavits may be partially used.(r) 
 The mode of examining and cross-examining witnesses before 
 the court' or in chambers is now regulated by the 15 & 16 Vict, 
 c. 86, and the 23 & 24 Vict. c. 128, and the consolidated general 
 orders, 1860, orders XVIIL, XIX., as varied by. the general 
 orders of the 5th February, 1861, and the 1st of January, 1862. 
 Many objections for want of parties are removed, and a mere 
 declaratory decree is authorized without any consequential re- 
 lief.(s) These acts were followed up by general orders of the 
 7th August, 1852, limiting the periods for appeals and rehearings 
 to five years, and enrolments to six months, unless with leave ; 
 and no enrolment is to be allowed after five j'ears, unless the 
 time is specially enlarged b.y the chancellor. This order operates 
 as a statute of limitations within the court ; and by other gen- 
 
 (m) 15 & 16 Vict. c. 80; 17 & 18 Vict. (0) IX. Con. Ord. 
 
 c. 100; 23 & 24 Vict. c. 149 ; [2 Dan. Ch. (p) IX., XI. Con. Ord. 
 
 Pr. (4th Am. ed.) 1168, & note (1).] (?) XV. Con. Ord. ; as to printing the 
 
 (n) 15 & 16 Vict. c. 86 ; as to the mode answer, order 6 Mar. 1860. 
 
 of examining orally on documents, see (r) See now XVIII., XIX. Con. Ord. 
 
 Lord V. Colvin, 2 Drew. 205 ; and see (s) XXIII. Con. Ord. 
 Wilkinson v. Stringer, 9 Hare App. xxiii. 
 
 [226] 
 
342 DIRECTIONS ON SPECIFIC PERFOEMANCE. [CH. V. § IV. 
 
 eral orders of the same date for regulating the practice, under 
 the 15 & 16 Vict. c. 86, and in the schedule forms are furnished 
 of a bill, interrogatories, answer, and surnmons.(<) General 
 orders of the 16th October, 1852, were likewise issued, for regu- 
 lating the proceedings under the 15 & 16 Vict. c. 80, particularly 
 in chambers, the schedule to which contains the formsof various 
 proceedings. (m) The fees and allowances to solicitors in respect 
 of the business before the equity judges at chambers and their 
 chief clerks are now regulated by the general orders of the court, 
 1860,(2;) which, with some exceptions abrogated the former 
 orders, and then consolidated and amended them. 
 
 5. On appeals from, in form, the judge's chief clerk, an order 
 may be made discharging his certificate, and sending the cause 
 back to him with special directions, and, where it may become 
 necessary, directing the cause again to be put in the judge's 
 paper, (y) 
 
 * 6. And now in all cases of breach of contract or other injury, 
 where the party injured is entitled to maintain and has brought 
 an action, he may claim a writ of injunction against the repeti- 
 tion or continuance of such breach of contract or other injury, 
 or the committal of any breach of contract or injury of a like 
 kind arising out of the same contract, or relating to the same 
 property or right ; and he may also in the same action include a 
 claim for damages or other redress.(2:) And the plaintiff may, 
 either before or after judgment, apply ex parte to the court or 
 judge for an injunction, and the court or judge may grant the 
 injunction upon such terms as to the duration of the writ, keep- 
 ing an account, giving security, or otherwise as shall seem rea- 
 sonable and just. But an appeal is given to the court against 
 the decision of a judge.(a) 
 
 7. Under the new law, the decree or order for a specific per- 
 formance directs generally an inquiry to be made as to title, and 
 that if a good title can be made, and if so when, a proper con- 
 veyance be settled ; and that upon the execution of it by parties 
 
 (t) See now XXIII. Com Ord. 2, 26; (y) Rhodes v. Ibbetson, 23 L. J. 459; 2 
 
 XXXI. Con. Ord. Eq. E. 76 ; 4 De G., M. & G. 787. 
 
 (m) Regularions by Order, 6 Aug. 1857; (z) 17 & 18 Vict. c. 125, s. 79-81. 
 
 Nos. 3, 4 ; XI. Con. Ord. (a) lb. s. 82. 
 
 {x) XL. Con. Ord. 
 
 [227] 
 
CH. IV. § IV.] DIEECTIONS ON SPECIFIC PERFORMANCE. 343 
 
 named in the certificate of approval, such execution to be veri- 
 fied by affidavit, the money is to be paid, with proper directions 
 as to costs, or further directions may be reserved.(6) Where the 
 contract is disputed, and not merely a dispute as to title, the 
 usual course is not to insert the inquiry as to when the title was 
 first shown. (c) It will be observed that the order is silent as to 
 the officer by whom the inquiry is to be made, or by whom the 
 conveyance is to be settled. Any general objection to the plain- 
 tiff's claim may of course be disposed of at the hearing. The 
 inquiry as to title takes place at chambers, as in other cases. 
 The objections are considered ; the conveyancing counsel con- 
 sulted where it is found necessary ; witnesses may be examined, 
 and the chief clerk certifies the result, and the case is then set 
 down upon the certificate in the paper for further directions, and 
 after the hearing a decree is made.(rf) The directions and pro- 
 ceedings after a decree for specific performance are similar to 
 those on sales under the direction of the court. Immediate dis- 
 covery and production of documents may be enforced by either 
 party, by an application to the judge's clerk in chambers. (e) 
 
 8. The case of Keyse v. Heydon,(/) furnishes a good exam- 
 ple of the mode of proceeding in cases of specific performance 
 under the new rules. A seller filed a bill against a purchaser 
 for a specific performance. The purchaser set up a defence on 
 the ground of misrepresentation, &c., and 2dly, if he were 
 bound, a want of title. At *the hearing the vice chancellor 
 decided that the plaintiff was entitled to a specific perform- 
 ance, and directed that a note should be taken by the registrar of 
 the decision of the court on that point, and that the cause should 
 stand over and be in the paper again to be spoken to on the ques- 
 tion of title. The purchaser claimed a right to go into the title 
 generally, and required a further abstract ; the seller insisted that 
 he was not bound by the contract to deliver any further abstract.' 
 If the parties had been prepared to go into that question the 
 vice chancellor would have determined it at once. But as they 
 
 (b) Form of an order, 10 Hare, 36, {d) Rogers u. Mort, 10 HareApp. 53; 
 App. ; infra. In re Jones's Estate, 1 Jur. N. S. 817. 
 
 (c) Potter V. Crossley, 28 L. T. 137 ; (c) 15 & 16 Vict. c. 86, s. 18; Barnard 
 Parr v. Loregrove, 4 Drew. 170; inf. v. Hunter, 1 Jur. N. S. 1065. 
 
 (/) 9 Hare App. 58. 
 [228] 
 
344 DIRECTIONS ON SPECIFIC PERFORMANCE. [CH. V. § IV. 
 
 were not, the purchaser was allowed a reasonable time to bring 
 in other objections, and if the court decided that the purchaser 
 was entitled to a further abstract, the case would of course stand 
 over again if he required it, in order that he might take any objec- 
 tions which arose upon the additional abstract. In this way, 
 therefore, without any references or decretal orders, the whole 
 matter would ultimately be decided ; the case standing over 
 from time to time, and the title, if necessary, being investigated 
 and debated in chamber and in court as the judge might see 
 fit. 
 
 9. An order of 1857, by rule 3, directs that whenever any 
 matter is adjourned from the court to chambers, or any directions 
 are given in court to be acted upon at chambers, whether upon 
 a matter adjourned into court from chambers, or upon any other 
 occasion, without an order being drawn up, a note signed by the 
 registrar stating for what purpose such matter is adjourned to 
 chambers, or the directions given is to be procured from the 
 registrar, and left at chambers, (g-) In a case (A) where there was 
 the chief clerk's certificate of a good title signed by the judge, 
 against which there was a motion by way of appeal, the vice 
 chancellor pointed out that in such cases the objection should be 
 brought before the judge before the chief clerk's certificate is 
 signed by the judge, instead of waiting for it to be signed and 
 then appealing. 
 
 10. And now a decree may be made upon motion under the 
 15 & 16 Vict. c. 86, although the suit was commenced by bill,(i) 
 and the same decree may be made upon motion as might be 
 made at the hearing.(A;) It is no longer necessary to make a 
 direction as to special circumstances, as the judge himself at 
 chambers may enter into the consideration of any special cir- 
 cumstances which he may deem material.(^) 
 
 11. If a bill be filed for a specific performance, the court will 
 enjoin either party not to do any act to the injury of the other. 
 Therefore, if the purchaser is in possession^ and has not paid the 
 
 {g) See XXXV. Con. Ord. {h) Norton v. Steinkopf, I Kay, 45 ; lb. 
 
 (A) Parr v. Lovegrove, 4 Drew. 170. App. 10 ; Warde v. Dixon, 28 L. J. N. S. 
 
 (t) Sect. 15; Gen. Otders, 7 Aug. 1852; 315. 
 
 XXXIII. Con. Ord. 2, 4 ; Cousing v. Va- (I) Williamson v. Jeffreys, 9 Hare App. 
 
 sey, 9 Hare App. 31. 56. 
 
CH. V. § IV.] MONEY TO BE PAID INTO COURT. 345 
 
 *money, the court will grant an injunction against his cutting 
 timber ; (m) so the vendor will be restrained from conveying 
 away the legal estate in the property ; («) and d fortiori, he will 
 be restrained from selling the estate to a third person.(o) But 
 the court will not take from a seller the disposition of his prop- 
 erty.(j9) So injunctions may be granted against the agents of 
 the parties.(l) Pending a suit by a purchaser for a specific per- 
 formance of an agreement to sell a presentation to a living, the 
 seller may be restrained by injunction from presenting, and the 
 bishop from instituting, or in the case of a lapse from collating 
 to the living any clerk not named by the purchaser.(^) But 
 where by the conveyance the relation of vendor and purchaser 
 has ceased, an injunction cannot, on the ground of that relation, 
 be granted against an illegal act by the vendor, e. g. a distress 
 for rent.(r) 
 
 12. In all cases where a bill in equity is filed for a specific 
 performance, either party may in general, if he please, have a 
 reference as to the title,(s) which, as we shall hereafter see, may, 
 in many cases, be made by motion before answer. 
 
 13. A purchaser in possession of the estate may, upon motion, 
 be ordered to pay the purchase money into court. This has 
 been done before answer ; (f) but the purchaser has, in some 
 cases, had the option to pay the money, or give up posses- 
 sion ; (m) in others, an occupation rent has been set, deducting 
 
 (m) Croekford v. Alexander, 15 Ves. (q) Nicholson v. Knapp, 9 Sim. 326, as 
 
 138 ; Marshall o. Watson, 25 Beav. 501 ; to injunctions against the bishop. 
 
 [Kerr Inj. (Am. ed.) 263, 288; Scott u. (r) Best w. Drake, 1 1 Hare, 369. 
 
 Wharton, 2 Hen. & M. 25.] (s) Posl, oh. 9, s. 2. 
 
 (n) Echliff V. Baldvrin, 16 Ves. 267; [2 («) Dixon v. Astley, 1 Mer. 133; Bur- 
 Dan. Ch. Pr. (4th Am. ed!) 1652.] roughs v. Oakley, lb. 52, 376; Blackburn 
 
 (0) Curtis V. Marquis of Buckingham, v. Stace, 6 Mad. 69 ; Fyke v. Northwood, 
 3 Ves. & Bea. 178; but see Turner «. 1 Beav. 152, tenant claiming option to 
 Wight, 4 Beav. 40. purchase. 
 
 {p) Spiller «. Spiller, MS. per Ld. El- (u) Clarke v. Wilson, 15 Ves. 317; 
 don ; 3 Swan. 556. Smith v. Lloyd, 1 Mad. 83 ; Morgan v. 
 
 (1) In a specific performance suit, an injunction against the purchaser's proceeding 
 at law to recover the deposit from the seller's attorney, who was not a party, was re- 
 fused with costs by Leach V. C. ; Brown «. Frost, E. T. 1818, MS. But in a later 
 case the vice chancellor granted an injunction to restrain the purchaser from proceed- 
 ing in an action against the auctioneer, who was not a party, the seller offering to 
 bring the deposit into court. MS. 
 
 [229] 
 
346 MONEY TO BE PAID INTO COURT. [CH. V. § IV. 
 
 interest on the deposit ; (x) and, in others, a receiver has been 
 appointed ; (y) and payment of the money will be ordered, al- 
 though by the agreement it is payable by instalments, and a 
 portion of it is to remain secured upon the estate.(z) This rule 
 has been adopted where the possession has been given under a 
 mutual apprehension that the title could be immediately * made 
 good ; (a) where the purchaser had a sort of mixed possession 
 with the vendor, and had paid part of the purchase money, was 
 insolvent, and had attempted without effect to sell the estate ; (b) 
 where the purchaser approved of the title and prepared a con- 
 veyance, and then raised objections ; (c) where the purchaser 
 had been guilty of laches, and cut underwood. (c?) Even in a 
 case where it appeared on the face of the abstract that the title 
 was bad, but the purchaser had sold and conveyed the estate to 
 another purchaser.(e) So where an acceptance of the title was 
 inferred ; (/) again, where the time was fixfed for payment of 
 the purchase money by instalments, and the property was a coal 
 mine.{g) If the estate be sold under a decree^ and the purchaser 
 enter into possession, he will be compelled to pay his purchase 
 money into court, unless he entered with the express consent of 
 the court.{h) 
 
 14. But where the sale is not by the court, and upon a parol 
 contract at so much an acre, there is a dispute as to the number, 
 and possession was given without any understanding when the 
 purchase money was to be paid, and the bill only seeks a per- 
 formance as to the larger quantity ; {i) or the seller has thought 
 
 Shaw, 2 Mer. 138; Wickham v. Everest, v. Edwards, T. T. 1819, V. C. MS. The 
 
 4 Mad. 53. deeds were executed but the purchaser 
 
 (a:) Smith v. Jackson, 1 Mad. 618 ; had not the money ready. The motion 
 
 Smith V. Lloyd, 1 Mad. 83. was on the answer by wliich compensation 
 
 (y) Hall V. Jenkinson, 2 Ves. & Bea. was claimed for some charges. 
 
 125 ; Clarke v. Elliott, 1 Mad. 606. (d) Burroughs v. Oakley, 1 Mer. 52, 
 
 (z) Younge v. Buncombe, Yo. 275 ; the 376 ; Dixon v. Astley, lb. 133, 378, n. ; 
 
 purchaser had been some years in posses- Bradshaw v. Bradshaw, 2 Mer. 492. 
 
 sion. (e) Brown v. Kelty, L. I. Hall, July, 
 
 (a) Gibson v. Clarke, 1 Ves. & Bea. 1816, MS. 
 
 600; 1 Mad. 607. (/) Boothby v. Walker, 1 Mad. 197; 
 
 (h) Hall V. Jenkinson, 2 "Ves. & Bea. Smith v. Lloyd, 1 Mad. 83. 
 
 125. (g) Buck V. Lodge, 18 Ves. 450. 
 
 (c) Watson w. Upton, Coo. 92; but see (A) Anon. L.I. Hall, 16 July, 1816,MS. 
 
 Bonner v. Johnston, 1 Mer. 366 ; Crutch- (i) Benson v. Glastonbury, C, Coo. 42 ; 
 
 ley V. Jerningham, 2 Mer. 502 ; Eournier 1 C. P. Coo. 350. 
 
 [230] 
 
CH. V. § IV.] MONEY TO BE PAID INTO COURT. 347 
 
 proper to put the purchaser into possession, with an understand- 
 ing between them that he shall not pay his money until he has 
 a title, the purchaser cannot be called upon to pay the money 
 into court in this summary way,(/i:) nor can the payment be 
 compelled where the vendor gives possession without stipula- 
 t\on,{l) or the purchaser was in possession under another title 
 before the contract ; (m) or the possession was given independ- 
 ently of the contract, and the seller has been guilty of laches,(m) 
 although in such cases the purchaser may make himself liable 
 to the demand, by dealing improperly with the estate, e. g. cut- 
 ting trees, or selling it to another person ; (o) or even ameliorat- 
 ing it, but changing the tenants.(p) But the purchaser after a 
 long period will not be permitted to keep possession of the 
 estate, and also withhold the purchase money ; if a title has riot 
 been made, he will *be put to his election within a reasonable 
 time, e. g. two months, to give up the possession or pay the 
 purchase money. (5) 
 
 15. Perhaps two simple general rules may be deduced from 
 the cases : 1st, Where the possession is taken under the con- 
 tract, or is consistent with -it, and the purchaser has not dealt 
 improperly with the estate, the cause must take its regular course. 
 But 2d. If the possession by the purchaser, without payment of 
 the money, is contrary to the intention of the parties, or is held 
 according to it, but the purchaser has exercised improper acts of 
 ownership, for example, cutting timber, by which the property is 
 lessened in value, or selling the estate, by which the first seller's 
 remedy is complicated without his assent; in such cases, the 
 court will interpose and compel the purchaser to pay the pur- 
 chase money into court. 
 
 16. Where the sum is large, the court has allowed a long day, 
 for instance, three months, for payment of the money ; (r) and 
 
 (h) Gibson ». Clarke, I Ves. &Bea. 500. (p) Bramley v. Teal, 3 Mad. 219. 
 
 (I) Clarke v. Elliott, 1 Mad. 606. {q) Tindal v. Cobham, 2 My. & Ke. 
 
 (m) Freebody v. Veticj, Coo. 91 ; Bon- 385 ; Fowler v. Ward, 6 Jur. 547 ; Adams 
 
 ner v. Johnston, 1 Mer. 366. v. Heathcote, 10 Jur. 301. 
 
 (n) Fox V. Birch, 1 Mer. 105. (r) Townshend v. Townshend, L. J. 
 
 (0) Cutler y. Simons, 2 Mer. 103; Bram- Hall, 3 Mar. 1817; Master of the Rolls 
 
 ley V. Teal, 3 Mad. 219; Gill w. Watson, for L. C. MS. 
 lb. 225. 
 
 [231] 
 
348 PARTIES TO A BILL. [CH. V. § IV. 
 
 under proper circumstances, the time will be enlarged. (5) Upon 
 a motion for this purpose, affidavits may, of course, be filed after 
 the purchaser has put in his answer, stating the collateral circum- 
 stances.(<) 
 
 17. Where a vendor files a bill for an injunction and a specific 
 performance, the court will, upon granting the injunction, in 
 most cases order him to pay the deposit into court. But even 
 where the seller is in possession, he will not be compelled to pay 
 the deposit into court, when it is the fault of the purchaser and 
 not of the seller that the latter retains both the deposit and the 
 estate. (m) 
 
 18. Where an estate is sold in lots to different persons, the 
 vendor cannot include them in one bill, there must be a distinct 
 bill upon each contract.(a;) In demurring to a bill against dis- 
 tinct purchasers as multifarious, the defendants need not deny 
 combination, (2^) although that was formerly deemed essential.(z) 
 But if several purchasers of distinct lots file one bill and no 
 objection is taken by the seller, the court will make a decree for 
 all.(fl) 
 
 19. And although by the conditions the purchaser of each lot 
 is to join in the assignment to the purchaser of the other, yet the 
 seller may file a bill against one for a specific performance with- 
 out making the other a party.(6) 
 
 20. A purchaser should not make the stewards or receivers of 
 the vendor parties to his bill for a specific performance ; for al- 
 though, as * we have already seen, the vendor is deemed a trustee 
 
 (s) Brown v. Kelty, M. T. 1816, MS.; [z) Ball v. Allen, Bun. 69. 
 
 V. C. for L. C. (a) Hargreaves v. Wright, 10 Hare App. 
 
 (t) Bradshaw v. Bradshaw, 2 Mer. 492 ; 2, 56. [Certain vendors of an estate, 
 
 Crutchley v. Jerningham, lb. 502. made a subpurchaser a defendant to their 
 
 (u) Bradshaw v. Bradshaw, 2 Mer. 492 ; bill against their purchaser for specific per- 
 
 Crutchley v. Jerningham, lb. 502 ; Wynne formance, or for rescinding the agreement ; 
 
 V. GrifSth, 1 Sim. & Stu. 147. and the subpurchaser afterwards filed a 
 
 (x) Eayner u. Julian, 2 Dick. 677 ; bill against his vendor for specific per- 
 Brookes v. Ld. Whitworth, 1 Mad. 86; formance and made the original vendors 
 [1 Dan. Ch. Pr. (4th Am. ed.) 335, 344. defendants. A demurrer by the original 
 But where an administrator has collusively vendors to the subpurchaser's biU was 
 sold separate lots to separate purchasers at overruled, on the ground that they had 
 the same sale, a bill against all the pur- made him a defendant to their bill. Fen- 
 chasers is not multifarious. Fomiqnet wick v. Bulman, L. E. 9 Eq. 165, V. C. 
 V. Forstall, 34 Miss. 87.] S.] 
 
 (y) Brookes v. Whitworth, 1 Mad. 86. (b) Paterson v. Long, 5 Beav. 186. 
 [232] 
 
CH. V. § IV.] PARTIES TO SUIT. SPECIFIO PEEFOEMANCE. 349 
 
 for the purchaser, yet this rule does not extend to the agents of 
 the vendor.(c) And, unless in a special case, the purchaser can- 
 not make the agent a party ; for his remedy against the agent, if 
 he acted without authority, is at law.(c?) 
 
 21. And, as a general rule, a purchaser ought not to make any 
 person a party to his suit, in whom he alleges any adverse 'right 
 to be vested ; the question should be litigated between the seller 
 and him alone, Can a good title be made?(e) Even where a 
 mortgagee claiming under the seller, is not willing to convey to 
 the purchaser without having competent authority for so doing, 
 he cannot be made a defendant to the purchaser's bill.(/) The 
 purchaser, of course, may, in a suit against the seller alone, if he 
 is entitled to the equity of redemption, compel him to redeem 
 and to obtain a conveyance from the mortgagee. 
 
 22. But in a suit by the personal representative of a vendor, 
 for specific performance, the real representative of the vendor is 
 a necessary party. (g-) If in a suit by a vendor the ref)ort be in 
 favor of the title, and then the purchaser die, his representatives 
 may obtain anorder that the plaintiff do revive the suit within 
 a short time, or that the bill may stand dismissed.(A) 
 
 23. Where the plaintiff, in a bill for a specific performance, can- 
 not prove his agreement as laid, but offers to perform the agree- 
 ment, ^which must be taken to mean what the court thinks is the 
 agreement, the court will execute the agreement as proved by 
 the defendant, without a cross-bill, if the court think the defend- 
 ant entitled to a specific performance.(i) But, if a plaintiff in- 
 
 (c) Macnamara v. "Williams, 6 Ves. 143. Mason v. Franklin, 1 Yo. & Col. C. C. 
 
 [Where the vendor in a, contract for the 239 ; Nelthorpe o. Holgate, 1 Col. 203 ; 
 
 sale of land enters into a new contract for Petre v. Duncombe, 7 Hare, 24 ; Peacock 
 
 the sale of the same land, the second ven- v. Pearson, 11 Beav. 355; Muston v. 
 
 dee is a necessary party defendant in an Bradshaw, 10 Jur. 402. 
 
 action to enforce specific performance of (/) Tasker v. Small, 3 My. & Cra. 63 ; 
 
 the first contract. Pullerton v. McCurdy, I Hare, 548. 
 
 4 Lansing, 132.J ' (jr) Roberts v. Marchant, 1 Phil. 370 ; 
 
 {d} Sainsbury t). Jones, 2 Beav. 462 ; 5 Fowler v. Lightburne, 11 Ir. Ch. Hep. 
 
 My. & Cra. 1 ; [Aberaman Iron Works v. 495, where the legal fee was held to be 
 
 Wickens, L. E. 5 Eq. 514 etseq.; S. C. outstanding; [Story Eq. PI. §§ 160, 177, 
 
 L. R. 4 Ch. Ap. 101.] 177 a; Morgan v. Morgan, 2 Wheat. 297, 
 
 (c) Lamplugh i>. Hebden, 1 Dick. 78; 298.] 
 
 Barnard, C. C. 371 ; 2 Eq. Ca. Ab. 170, (h) Norton v. White, 2 De G., M. & G. 
 
 pi. 29; Tasker v. Small, 6 Sim. 633; 678. 
 
 Wood V. White, 4 My. & Cra. 460; Rob- [i) Fife v. Clayton, 13 Ves. 546; Hig- 
 
 ertson </. G. W. Ry. Co. 10 Sim. 314; ginson v. Clowes, 15 Ves. 516; [1 Dan. 
 
350 
 
 DAMAGES IN EQUITY. 
 
 [CH. V. § IV. 
 
 sist upon a particular construction of a contract, and the court 
 decides against him, he will not be allowed a specific perform- 
 ance according to the construction against which he has con- 
 tended. (y) 
 
 24. The seller, of course, should not show on his bill a want 
 of title,(A;) but although he state that the consent of a third per- 
 son is necessary, and do not aver that he has obtained such con- 
 sent, yet a demurrer will not lie.(Z) 
 
 * 25. If a bill for a specific performance be dismissed, it would 
 require a clear and distinct case to be made out and prayed, to 
 entitle the plaintiff to an account of rents, or the like.(»») 
 
 26. Under the old law, if a purchaser had recourse to equity, 
 and it appeared that the vendor had, since the filing of the bill, 
 sold'the estate to another person, the court could not give him 
 damages.(w) But if pending a suit for specific performance, the 
 
 Ch. Pr. (4th Am. ed.) 385 ; Green v. Co- 
 villaud, 10 Cal.317 ; McKleroy u. Tulane, 
 34 Ala. 78; Bell v. Thompson, 34 Ala. 
 633; Oliver v. Palmer, 11 Gill & J. 426; 
 Hatcher v. Hatcher, 1 McMuUan Ch. 311.] 
 
 (j) Clowes V. Higg^nson, 1 Ves. & Bea. 
 524. 
 
 (h) Duke of Beaufort v. Glynn, 3 Sra. 
 & Gif. 213. 
 
 (I) Smith V. Capron, 7 Hare, 185 ; Davis 
 i>. Nisbett, 10 C. B. 752. 
 
 (m) Williams v. Shaw, 3 Eus. 178; 
 Stevens v. Guppy, 3 Rus. 171. 
 
 (n] Denton v. Stewart, 1 Cox, 258 ; 1 
 Ves. jr. 329 ; 17 Ves. 276 ; Greenaway ,j. 
 Adams, 12 Ves. 395, contra; Todd v. Gee, 
 17 Ves. 273; Blore v. Sutton, 3 Mer. 237 ; 
 Kendall v. Beckett, 2 Eus. & My. 88 ; Jen- 
 kins V. Parkinson, 2 My. & Kee. 5, sed qu. ; 
 Sainsbury v. Jones, 5 My. & Cra. 1 ; Tyler 
 V. Webb, 14 Beav. 14 ; Thornton v. Court, 
 17Jur. 154, ace; [Aberamau Iron Works 
 V. Wickens, L. R. 5 Eq. 485. See the re- 
 marks of Shepley J. in Woodman v. Free- 
 man, 25 Maine, 531, .W4, 550, 551, upon 
 Denton v. Stewart, and Greenaway v. Ad- 
 ams, above cited. /^ The principle of these 
 decisions was applied and acted upon by 
 Chancellor Kent in Phillips v. Thompson, 
 1 John. Ch. 131, 150, 151 ; see Warner v. 
 
 [233] 
 
 Daniels, 1 Wood. & M. 113, 114. Bnt in 
 Hatch V. Cobb, 4 John. Ch. 559, and in 
 Kempshall v. Stone, 5 John. Ch. 193, the 
 learned chancellor refused to act upon it, 
 in consequence, apparently, of the doubt 
 thrown over it by the suggestions of Lord 
 Eldon in the above cited case of Todd a. 
 Gee. In Hatch v. Cobb, there was a con- 
 tract for the sale of land, and the payment 
 of the purchase money was made a con- 
 dition precedent to the conveyance; and 
 after a default in payment by the vendee, 
 the vendor accepted a part of the pur- 
 chase money, but the vendee, though re- 
 peatedly called upon, refused to complete 
 the payment. The vendor after giving 
 notice of his intention to do so, sold and 
 conveyed the land to another ; and the ' 
 vendee, afterwards, tendered the money 
 due on the contract, and filed a bill for its 
 specific performance. The chancellor said : 
 "A specific performance cannot be de- 
 creed. The defendant had fairly disabled 
 himself before the suit brought, and this 
 was known to the plaintiff." " It is doubt- 
 ful how far the court has jurisdiction to 
 assess damages merely in such a case, in 
 which the plaintiff was aware, when he 
 filed his bill, that the contract could not be 
 specifically performed or decreed. It is 
 
CH. V. § IV.J 
 
 DAMAGES IN EQUITY. 
 
 351 
 
 seller disposed of part of the property, e. g. stone in a quarry, 
 the court would take care that the purchaser had full compensa- 
 
 properly a matter of legal cognizance." 
 Kempshall v. Stone was a case somewhat 
 similar to Hatch v. Cobb, and in it Chan- 
 cellor Kent said : " The more I have re- 
 flected on the subject, the more strongly 
 do I incline to the opinion expressed in 
 Hatch V. Cobb. Lord Eldon intimated in 
 Todd V. Gee, 17 Ves. 273, that the whole 
 course of previous authority was against 
 the decision of Lord Kenyon in Denton v. 
 Stewart, 1 Cox, 258 ; and in that case 
 Lord Eldon said, the defendant had dis- 
 abled himself, pendente lite, from perform- 
 ing the agreement; and that fact mate- 
 rially distinguishes that case from this. 
 When the defendant had disabled himself, 
 before the filing of the bill, and the plain- 
 tiff knew of that fact before he commenced 
 his suit (and I consider such knowledge 
 a material circumstance in the case), it is 
 then reduced to the case of a bill filed for 
 the sole purpose of assessing damages for 
 a breach of contract, which is a matter 
 strictly of legal, and not of equitable juris- 
 diction. The remedy is clear and perfect 
 at law by an action upon the covenant ; 
 and if this court is to sustain such a bill, 
 I do not see why it may not equally sus- 
 tain one in every other case sounding in 
 damages and cognizable at law." In 
 Andrews v. Brown, 3 Cush. 130, a bill was 
 brought for the specific performance of a 
 contract, or, in the alternative, for com- 
 pensation to the plaintiff in damages. 
 The question raised was, whether, if the 
 defendant had put it out of his power to 
 perform his contract specifically, the court 
 had the right to retain the bill, and to 
 award compensation in damages. The 
 decision affirmed the right. Wilde J. 
 said : " Judge Story, in his commentaries, 
 expresses the opinion, that the jurisdiction 
 for compensation or damages does not or- 
 dinarily attach in equity, except as ancil- 
 lary to a specific performance, or to some 
 other relief; and that if it does attach in 
 any other cases it must be under special 
 
 circumstances and peculiar equities ; as, for 
 instance, in cases of fraud, or where the 
 party has disabled himself by matter post 
 facto from a specific performance. 2 Story 
 Eq. Jur. § 799. And we are of the same 
 opinion, with this qualification, however, 
 that if the learned commentator intended 
 to express a doubt, whether a court of 
 equity had jurisdiction to decree compen- 
 sation in the cases last stated, we cannot 
 concur in that doubt ; for it is very cer- 
 tain that the case of Denton u. Stewart 
 has never been overruled, and the decision 
 in that case is in our opinion reasonable 
 and conformable to the principles of equity. 
 And we think the present case depends 
 upon the same principles. It diffei's from 
 that case only in one particular. In that 
 case, the sale by the defendant was made 
 after the suit for specific performance of 
 the contract had been commenced ; and in 
 this case, it is averred that the sale was 
 made before this suit was commenced. 
 We do not, however, consider this variance 
 as material." So in Jervis u. Smith, 1 
 Hoff. Ch. 470, it was decided that, al- 
 though the party contracting to convey 
 land to one, has since conveyed it to 
 another, and this is known to the former, 
 yet if it is a case of exclusive equity juris- 
 diction, a bill will lie to recover damages. 
 See Doan v. Mauzey, 33 111. 227. In 
 Woodman v. Freeman, 25 Maine, 531, it 
 was decided, that one, who has been in- 
 duced to purchase laud of another and to 
 pay him for it, by the fraudulent representa- 
 tions of a third person interested to effect 
 such sale, cannot, in a court of equity, re- 
 cover the amount so paid of such third 
 person and require him to receive a con- 
 veyance of the land. Mr. Justice Shepley, 
 giving the opinion of the court in the 
 above case, lays down the proposition, that 
 courts of equity can give relief by compen- 
 sation in damages in cases "where specific 
 performance ought to have been, and could 
 have been decreed upon the state of facts 
 
352 
 
 DAMAGES IN EQUITY. 
 
 [CH. V. § IV. 
 
 tion for the damage.(o) And where there are two purchasers, 
 the first purchaser will be entitled to a specific performance 
 against the seller and the second purchaser, the latter being con- 
 sidered to take subject to the equity of the first purchase r.(;?) 
 Equity could not give the purchaser any compensation where he 
 filed a bill to have the contract delivered up on account of the 
 defective title of the vendor. But he could obtain a decree for 
 the delivering up of the contract without prejudice to his remedy 
 at law for breach of it.{q) Neither could he require such inter- 
 
 existing when the bill was filed, but can- 
 not be decreed on a hearing of the <;ause, 
 because the defendant, pending the suit, 
 has voluntarily disenabled himself to make 
 a conveyance." To this point he cited 
 Denton v. Stewart, and Todd v. Gee. The 
 learned judge adds : " The court will not 
 permit itself to be ousted, by fraud or con- 
 trivance, of a jurisdiction rightfully and 
 legally acquired, but will proceed against 
 him, who thus attempts to injure another 
 and impose upon the court, and will, by 
 the assessment of damages, compel him to 
 make compensation for the injury. To do 
 this is not to assume a jurisdiction, which 
 does not legitimately belong to it, for the 
 jurisdiction has become rightfully vested 
 and fixed there." 
 
 A bill in equity cannot be sustained by 
 a vendee for the specific performance of a 
 contract, or for compensation in damages 
 by the vendor, for not making a convey- 
 ance when requested to do so, of a parcel 
 of land which had no real existence, but 
 which by mutual mistake of the parties 
 the vendor had agreed to sell and convey, 
 and the vendee had agreed to purchase and 
 pay for. Morss u. Elmendorf, 11 Paige, 
 277. In Person v. Sanger (Davies's Rep. 
 252, 261) Mr. Justice Ware said: " Upon 
 a review of all the cases, the rule practi- 
 cally established seems to be, that a court 
 of equity will not take jurisdiction of a 
 suit for damages, when that is the sole ob. 
 j ect of the bill, and when no other relief 
 can be given. But when other relief is 
 sought by the bill, which a court of equity 
 is alone competent to grant, and damages 
 are claimed as incidental to relief, which 
 
 cannot be obtained at law, then the court 
 being properly in possession of the cause 
 for the purpose of relief purely equitable, 
 will, to prevent multiplicity of suits, pro- 
 ceed to determine the whole cause." See, 
 also. Hill V. Fiske, 38 Maine, 520 ; 2 Story 
 Eq. Jnr. §§ 796-799 ; Scott v. Billgerry, 
 40 Miss. 119; Wiswall v. McGown, 2 
 Barb. 270 ; Bradley v. Basley, 1 Barb. Eq. 
 125 ; Woodcock v. Bennet, 1 Cowen, 711 ; 
 Gwillim V. Stone, 14 Ves. (Sumner's ed.) 
 128, & note; Pratt v. Law, 9 Cranch, 
 494 ; Hepburn v. Auld, 5 Cranch, 262, 
 275 ; Sims v. Lewis, 5 Munf. 29 ; McFer- 
 ran v. Taylor, 3 Cranch, 270 ; Russell v. 
 Clarke, 7 Cranch, 69 ; Berry v. Vanwinkle, 
 1 Green Ch. 269 ; Welsh v. Bayaud, 6 C. 
 E. Green (N. J.), 186; Doan v. Mauzey, 
 33 111. 227 ; Aday v. Echols, 18 Ala. 353 ; 
 Sain V. Dulin, 6 Jones Eq. 195; Bullock 
 V. Adams, 5 C. E. Green (N. J.), 367; 
 Aberaman Iron Works v. Wiekens, L. R. 
 5 Eq. 485, 515 et seq. If one who has 
 agreed to convey land is unable to give a 
 perfect title thereto, and the purchaser ■ 
 elects to take such title as the vendor can 
 give, with compensation for the deficiency, 
 he will be allowed as damages only the 
 fair market value of what cannot be con- 
 veyed. Woodbury v. Luddy, 14 Allen, 1 ; 
 Davis V. Parker, 14 Allen, 94.] 
 
 (o) Nelson v. Bridges, 2 Beav. 239; 
 Daniels v. Davison, 16 Ves. 249. 
 
 [p) 17 Ves. 433 ; Eewster v. Turner, 6 
 Jur. 144 ; [Stone v. Bucknor, 12 Sm. & M. 
 73.] 
 
 (q) Gwillim W.Stone, 14 Ves. 128, sed 
 qu. as to the latter branch. 
 
CH. V. § IV.] DAMAGES IN EQUITY. 853 
 
 est as the seller had in the estate and damages in respect of his 
 defect of title, (r) 
 
 27. But now courts of equity are authorized to give dam- 
 ages, (s) The statute which confers this power enacts, that in 
 all cases in which the court of chancery has jurisdiction to en- 
 tertain an application for an injunction against a breach of any 
 covenant, contract, or agreement, or against the commission or 
 continuance of any wrongful act, or for the specific performance 
 of any covenant, contract, or agreement, it shall be lawful for 
 the same court to award damages to the party injured, either in 
 addition to or in substitution for such injunction or specific per- 
 formance, and such damages may be assessed in such manner 
 as the court shall direct ; and the court may cause the amount 
 of such damages in any case to be assessed or any question of 
 fact arising in any suit or proceeding to be tried by a special or 
 common jury before the court itself; and provisions are made in 
 regard to juries ; but from any order made by the court on an 
 application for a new trial there is the same right of appeal as 
 from any * other order of the court. Any question of fact, and 
 any question as to the amount of damages whi&h shall be so 
 ordered to be tried by a jury before the court itself, is to be re- 
 duced into writing, in such form as the court shall direct. Power 
 is given to the court of chancery to cause the amount of such 
 damages in any case to be assessed, or, any question of fact 
 arising in any suit or proceeding to be tried before the court 
 itself without a jury, and to cause the evidence on the trial of 
 that question to be taken by the oral examination, of witnesses 
 
 (r) William v. Higden, 1 C. Coo. 500. Acraman v. Price, 18 W. R. 540, V. C. J. 
 
 (s) 21 & 22 Vict. c. 27 ; Tuck v. Silver, For cases where it -was held that damages 
 1 Johns. 218 ; Phelps v. Prothero, 7 De G., might be awarded instead of specific per- 
 M. & G. '722; Ormes v. Beadell, 2 Giff. formance, see Kay v. Johnson, 2, H. & M. 
 166; 2 De G., F. & J. 333; Sugd. Stat. 118, 124; Barlow v. Scott, 24 N.Y. 40; 
 2d edit. 325 ; [Hindley v. Emery, L. R. 1 Pingreeiu. Coffin, 12 Gray, 305 ; Peabody 
 Eq. 52; 1 1 Jur. N. S. 874 ; Schotsmansu. v. Tarbell, 2 Cush. 226; Andrews v. 
 Lancashire & Yorkshire Railway Co. L. Brown, 3 Cush. 130, 136 ; Belts v. Jfeil- 
 R. 1 Eq. 349 ; 12 Jur. N. S. 42 ; Thomlin^ son, L. R. 3 Ch. Ap. 429, L. C. ; Carne v. 
 son V. Dixon, 14^ W. R. 528; McRae v. Brancher, 17 W. R. 342; lb. 837; 2 Dan. 
 London, Brighton & South Coast Rail- Ch. Pr. (4th Am. ed.) 1080, 1081, &.in 
 way Co. W. N. (1868) 25 V. C. S.; Betts note; Pry Specif. Perf. (2d Am. ed.) 
 V. Neilson, L. R. 3 Ch. Ap. 429, L. C. ; 451 ; see Aberaman Iron Works v. Wick- 
 Corporation of London v. Southgate, W. ens, L. R. 5 Eq. 515 ; S. C. L. R. 4 Ch. 
 N. (1868) 297 ; 17 W. R. 197, V. C. M.; Ap. 101.] 
 
 VOL. I. 23 
 
 [234] 
 
354 ASSESSMENT OF DAMAGES. [CH. V. § IV. 
 
 and other proofs in open court ; and any question of fact, and 
 any question as to the amount of damages which shall be so 
 ordered to be tried before the court itself, is to be reduced into 
 writing, in such form as the court shall direct; and the verdict 
 of the judge will be of the same effect as the verdict of a jury 
 under the act ; and the proceedings upon and after such trial, as 
 to the power of the court, the evidence, and otherwise, are the 
 same as in the case of trial by jury under the act ; provided, thjit, 
 in the case of a trial under this power any person may apply for 
 a new trial, either to the judge before whom the trial was had, or 
 to the court of appeal in chancery, or the court of chancery may 
 cause the amount of such damages to be assessed by a jury be- 
 fore any judge of one of the superior courts of common law at 
 nisi priusj or at the assizes, or before the sheriff of any county or 
 city, and the court of chancery has power to set aside the verdict 
 or inquisition on such inquiry, and to direct a new inquiry, in 
 such manner and on such terms as the court shall think fit. 
 Provision is made for the admission of documents, and all the 
 foregoing powers are extended to the court of chanc6ry in Ireland, 
 and to the court of chancery of the county palatine of Lancaster. 
 28. The meaning of this act has been said to be that, where 
 the court has jurisdiction in the suit, it may award damages in 
 substitution for specific performance, and relief has been given 
 under it in part by damages in lieu of specific performance ; and 
 as to the residue by specific performance. (<) Damages, there- 
 fore, may be given in addition to or in substitution of specific 
 performance, but to authorize damages the case must be one 
 where the court has power to enforce specific performance.(M) 
 
 (t) Soames w. Edge, 1 Johns. 669; see S. C. nom. Darrell v. Pritchard, 12 Jur. 
 
 Norris v. Jackson, 1 J. & H. 319 ; Sugd. N. S. 16, L. JJ. ; Fi-anklinski v. Ball, 33 
 
 Stat. 327. Bear. 560 ; Lervers v. Earl of Shaftesbury, 
 
 (u) Kogers V. Challis, 27 Beav. 175 ; L. R. 2 Eq. 270; 12 Jur. N. S. 389, V. C. 
 
 Consolidated Orders, 1860, order 41, rule W. ; 16 L. T. N. S. 13.5, L. C; Ferguson 
 
 26; [Norrist!. Jackson, 1 J. & H. 319; v. Wilson, L. B. 2 Ch. Ap. 77, L. JJ. ; 
 
 Wicks V. Hunt, 1 Johns. 372 ; Howe v. Calcraft v. Thompson, 35 Beav. 559 ; W. 
 
 Hunt, 31 Bear. 420; 8 Jur. N. S. 834 ; N. (1867) 8; 15 W. R. 387, L. C; Leh- 
 
 Johnson v. Wyatt, 2 De G., J. & S. 18 ; mann v. McArthur, L. R. 3 Ch. Ap. 496, 
 
 9 Jur. N. S. 1333; Middleton v. Magnay, L. JJ. ; L. R. 3 Eq. 746, V. C. S. ; Scott 
 
 2 H. & M. 233, 236 ; Laurence v. Austin, v. Rayment, L. R. 7 Eq. 112, V. C. G. ; 
 
 11 Jur. N. S. 576 ; 13 W. R. 981, M. R. ; 2 Dan. Ch. Pr. (4th Am. ed.) 1082 ; Fry 
 
 Duvell V. Pritchard, L. R. 1 Ch. Ap. 244; Specif. Perf. (2d Am. ed.) 451, in note. 
 
CH. V. § IV.J 
 
 EIGHT TO AVOID PURCHASE. 
 
 355 
 
 Where the single object of a contract is for a purpose which the 
 court will not execute, e. g. an agreement to lend a sum of money 
 at interest, although damages may be recovered at law for a 
 breach of it, yet the act does not authorize equity to award dam- 
 ages.(.r) 
 
 *29. Where the contract has been executed, a bill cannot be 
 filed by the purchaser simply for compensation, e. g-. where the 
 jental of the estate was represented higher than its actual 
 araount.(a) 
 
 30. If a purchaser take a line of defence which fails, yet if he 
 have a good ground to avoid the contract, he may still avail him- 
 self of it as a bar to a specific performance.(6) 
 
 31. A purchaser may of course have a right to avoid a pur- 
 
 tJnless special damages can be shown to Ch. Ap. 429, L. C. ; Pingree v. Coffin, 12 
 have been caused by the delay, the court Gray, 305 ; in addition to an account, 
 will not, in addition to decreeing the spe- Betts v. Neilson, L. K. 3 Ch. Ap. 429. 
 cific performance of a contract, award But in Yost v. Devault, 9 Iowa, 60, it was 
 damage son account of its non-perform- held that the court will not proceed to 
 ance. Chinnock v. Marchioness of Ely, 2 assess the plaintiffs damages in case spe- 
 ll. & M. 220 ; U Jur. N. S, 32.] cific performance cannot be decreed, unless 
 (x) Rogers v. Challis, tiJi sup. ; Chin- the petition and prayer be adapted for 
 nock V. Sainsbury, 30 L. J. N. S. 409 ; [S. this, and evidence with a view to this issue 
 C. 6 Jur. N. S. 13X8; 9 W. R. 7, M. R. be given. The general prayer is not 
 Where the court is of opinion that the sufficient for the purpose. See Holt «. 
 plaintiff should have proceeded at law, no Thomas, 8 Peters, 420, 434. Where there 
 assessment of damages will be directed in will be extreme diflSculty in the court see- 
 eqnity; but the bill will be dismissed, ing its way to assess the damages, leave 
 without prejudice to the plaintiffs right to will, it seems, be given to the plaintiff to 
 proceed at law. Clarkson ». Edge, 10 Jur. proceed at law for the purpose of recover- 
 
 Sr. S. 871 ; 12 W. R. 318, M. R. ; Lau- 
 rence V. Austin, 11 Jur. N. S. 576 ; 13 W. 
 R. 981 ; Bauman v. Matthews, 4 L. T. N. 
 S. 783 ; Wycombe Railway Co. u. Don- 
 
 ing damages. Betts v. De Vitre, 1 1 Jur. 
 N. S. 9, V. C. W. ; 2 Dan. Ch. Pr. (4th 
 Am. ed.) 1081, and cases in notes.] 
 
 (a) Newham.i;. May, 10 Pri. 117 ; Lenty 
 
 nington Hospital, L. R. 1 Ch. Ap. 268, «. Hillas, 2 De G. & J. 110. [Where an 
 275; 12 Jur. N. S. 347, 349; Cooke u. agreement has been executed, a court of 
 
 Forbes, L. R. 5 Eq. 166 ; Avery v. Griffin, 
 L. R. 6 Eq. 606, 609 ; Scott v. Rayment, 
 
 equity will not decree a further specific per- 
 formance. Tucker v. Clarke, 2 Sandf. Ch. 
 
 L. R. 7 Eq. 112, 116. The plaintiff may, 96. So, where one without title conveys 
 
 by his conduct, forfeit his right to dam- land with covenant of seisin, he cannot 
 
 ages ; Collins v. Stuteley, 7 W. R. 710 ; afterwards maintain a bill to compel the 
 
 Lancaster v. De Trafford, 8 Jur. N. S. grantee to receive a good title, but the 
 
 873 ; 10 W. R. 474 ; and the damages may grantee will be entitled to his action for 
 
 be awarded, although not specifically the breach of covenant. Tucker v. Clarke, 
 
 prayed by the bill ; Wedmore v. Mayor of 2 Sandf. Ch. 96.] 
 
 Bristol, 11 W. R. 136 ; Catton o. Wylde, (6) Magennis v. Fallon, 2 Mol. 591. 
 32 Beav. 266 ; Betts v. Neilson, L. R. 3 
 
 [235] 
 
356 ACTION BY PURCHASER OK SELLER. [CH. V. § IV. 
 
 chase by matter ex post facto, — as where the subject of sale 
 was a gentleman's residence, and some of the ornamental timber 
 was cut pending an investigation of the title.(c) If a title can- 
 not be made to a portion of the timber sold, it will be inquired 
 whether it is essential to the enjoyment of the estate.(rf) 
 
 II. Of the remedy at law. 
 
 32. If a purchaser, upon a bill being filed for a specific per- 
 formance, pay the purchase money without putting in an answer, 
 and afterwards discover that a fraud was committed in the sale, 
 he is not precluded from bringing an action for damages if he 
 come recently after discovery of the deception. (e) A contract, 
 we may observe, induced by fraud is not void, but voidable at 
 the option of the party defrauded. If at law this party desire 
 to rescind the contract, he must be capable of putting the other 
 party into his original state before the contract ; if he cannot do 
 that, his remedy is by a special action for deceit.(/) 
 . 33. But if a defendant in a suit for a specific performance, 
 after a decree, bring an action at law against the plaintiff in 
 equity for damages, and the decree proceeded upon the ground 
 that he had waived the literal performance of the thing, for 
 breach of which the action is brought, e. g. the time appointed 
 for performance of the contract, equity will enjoin the action. (g") 
 
 34. So equity will restrain the seller from bringing an action 
 where the bill was dismissed because he had no title.(A) 
 
 35. But although a seller's bill for a specific performance be 
 dismissed, yet he may in general bring his action for breach of 
 the agreement; and there are instances of sellers recovering 
 damages in such cases. Where the court refuses its interference, 
 and yet thinks that the seller is entitled to enforce his contract 
 at law, it is usual to add a declaration to the decree, that it is 
 without prejudice to the plaintiff's * remedy at law.(A^) In like 
 
 (c) S. C. ; Stewart v. Marquis of Con- (/) Clarke v. Dickson, 1 EL, Bl. & EL 
 
 yngham, 1 Ir. Cha. R. 574. 148. 
 
 {d) Stewart «. Marquis of Conyngham, (y) Keynolds v. Nelson, 6 Mad. 290; 
 
 1 Ir. Cha. R. 575 ; 3 Ir. Ch. R. 104. This Nott v. Riccard, 2 Jur. N. S. 1038 ; Phelps 
 
 question can hardly arise in England, v. Prothero, 7 De G., M. & G. 722. 
 
 Upon the Ii-ish stat. see Ld. Mounteashell (A) M'Namara v. Arthur, 2 Bal. & 
 
 V. Ld. O'Neill, 5 H. L. Cas. 937. Beat. 349. 
 
 (e) Jendwine v. Slade, 2 Esp. 257. (Ai) [Robson u. Whittingham, L. R. 1 
 
 [236] 
 
« 
 
 CH. V. § IV.j ACTION BY PURCHASER. 357 
 
 manner, a purchaser, although he cannot prevail upon the court 
 to assist him, is frequently left at liberty to enforce his right to 
 damages at law.(i) 
 
 36. If the purchaser's bill be dismissed, for want of title in 
 the vendor, without costs, the purchaser cannot, in an action for 
 damages, recovei; as such the costs of the suit refused to him in 
 equity, (A;) nor can a purchaser in such an action recover his 
 extra costs of a suit by the seller for a specific performance 
 which was dismissed with costs.(Z) 
 
 37. If a purchaser recover damages in an action for breach of 
 the agreenient, he cannot bring a second action, or resort to any 
 other means to enforce the oontract.(m) 
 
 38. But where a purchaser failed in an action to recover his 
 deposit upon the ground that the vendor had not broken the 
 contract, and the vendor, after the issuing of the writ in that 
 action, resold the estate, it was held that the purchaser might 
 maintain a new action for the deposit.(«) 
 
 39. Where the purchaser has paid any part of the purchase 
 money, and the seller does not complete his engagement, so that 
 the contract is totally unexecuted, the purchaser may affirm the 
 agreement by bringing an action for the non-performance of it, 
 or he may disaffirm it, and bring an action for money had and 
 receivec^ to his use.(o) In this latter action, the plaintiff cannot 
 
 Ch. Ap. 442 ; S. C. 12 Jar. N. S. 40, L. inclose and improve the premises, is a bar 
 
 JJ. ; see, also, Jackson v. Duke of New- to a bill for the specific performance of 
 
 castle, 3 De G., J. & S. 275 ; 10 Jur. N. S. such covenant. Stuyvesant v. New York, 
 
 688,810.] 11 Paige, 414. But a, recovery for the 
 
 (i) Inf. s. 5 ; 1 Macq. H. of L. 267, 268 ; breach of a covenant to forever keep the 
 
 Duke of Beaufort v. Glynn, 1 Jur. N. S. premises open as a public square, is not a 
 
 888. bar to a subsequent bill for specific per- 
 
 {k) Maiden v. Fyron, 11 Q. B. 292, formance of the covenant, it being a con- 
 overruling on this point Jones v. Dyke, tinuing covenant. Stuyvesant «. New 
 App. Purch. No. 5 ; but consider the facts York, 11 Paige, 414. Ordinarily a party 
 of that case. who has once elected to rescind a con- 
 
 (/) Hodges V. Ld. Lichfield, 1 Bing. N. tract, and sought to repudiate it, and failed, 
 
 C. 492. -vriU not afterwards be heard when he calls 
 
 (m) 10 Bing. 537, 538, 540 ; [per Shep- on equity to decree specific perfonnance of 
 
 ley J. in Hill v. Hobart, 16 Maine, 169; the contract; Eastman o. Plumer, 46 N. 
 
 Hopkins v. Lee, 6 Wheat. 109 ; Buckmas- H. 464.] 
 
 ter V. Grundy, 3 Gilman, 626. A recovery (re) Palmer v. Temple, 9 Ad., & El. 508. 
 
 of damages in an action for the breach of (o) 2 Burr. 1011 ; Farrer v. Nightingale, 
 
 a covenant, by the grantee of land for the 2 Esp. 639 ; Hunt v. Silk, 5 East, 449 ; 
 
 purpose of a public square, to grade, Squire v. Tod, 1 Camp. 293 ; Levy v. Haw, 
 
358 
 
 ACTION BY PURCHASER. 
 
 [CH. V. § IV. 
 
 recover more than the money paid, although the estate has risen 
 in value, while it should seem that, if the estate has experienced 
 a diminution in value, he can only recover the damages he sus- 
 tained by the estate not having been conveyed ; that being the 
 
 1 Taunt. 65 ; Moses v. M'Farlan, 2 Burr. 
 1005 ;■ [Chitty Contr. {10th Am. ed.) 329, 
 note (P), 689, note (rO-) ; Dill v. "Ware- 
 ham, 7 Met. 438 ; Shaw C. J. in Hill o. 
 Rewee, 11 Met. 271, 272 ; Brown v. Harris, 
 
 2 Gray, 359; Wheeler «. Board, 12 John. 
 363 ; Briggs v. Vanderbilt, 19 Barb. 222; 
 Weaver v. Bentley, 1 Caines Hep. 47 ; 
 Gillet V. Maynard, 5 John. 85 ; Williams 
 V. Reed, 5 Pick. 480 ; Goddard v. Mitchell, 
 
 17 Maine, 366. It was broadly stated as u, 
 rule by Chief Justice Parker in Griggs v. 
 Austin, 3 Pick. 20, that, " where money is 
 paid by one party in contemplation of 
 some act lo be done by the other, which is 
 the sole consideration of the payment, and 
 the thing stipulated to be done is not per- 
 formed, the money may be recovered back." 
 See Carter v. Carter, 14 Pick. 424 ; Harri- 
 son V. Chilton, 5 Yerger, 293 ; Lyon v. An- 
 nable, 4 Conn. 350 ; Appleton v. Chase, 19 
 Maine, 74 ; Brown v. Harris, 2 Gray, 359. 
 Money paid upon an agreement, void by 
 the statute of frauds, which the party re- 
 ceiving the money cannot or will not com- 
 plete, may be recovered back. Buck v. 
 Waddle, 1 Ham. 363 ; Gillett v. Maynard, 
 5 John. 85 ; Rice v. Peet, 15 John. 503 ; 
 Thompson v. Gould, 20 Pick. 134; Lane 
 V. Shackford, 5 N. H. 133 ; Geer v. Geer, 
 
 18 Maine, 16; Kidder v. Hunt, 1 Pick. 
 328 ; Grant v. Craigmiles, 1 Bibb, 206 ; 
 Lyon V. Annable, 4 Conn. 350 ; Eames v. 
 Savage, 14 Mass. 425 ; Hunt v. Sanders, 1 
 Marsh. 552 ; Allen v. Barker, 2 Stewart, 
 21; Maddera u. Smith, 3 Stewart, 112; 
 Beaman v. Buck, 9 Sm. & M. 207 ; Sims 
 V. Hutchins, 8 Sm. & M. 528 ; Abbott v. 
 Draper, 4 Denio, 51 ; Cook u. Doggett, 2 
 Allen, 439, 440. One who has paid a por- 
 tion of the price for a parcel of land, 
 under an oral agreement for the purchase 
 thereof, and is ready and able to pay the 
 
 residue upon delivery to him of a deed of 
 the land, according- to the terms of the 
 agreement, may recover back the money so 
 paid by him without proving a formal 
 tender of the residue of the money, if the 
 vendor, upon request by the vendee and 
 knowledge of his readiness has refiised to 
 perform his part of the contract. Cook v. 
 Doggett, 2 Allen, 439 ; Smith v. Lewis, 26 
 Conn. 110 ; Crabtree v. Welles, 19 111. 55. 
 If the seller conveys the land to a third 
 person, and thus by his own act deprives 
 himself of the power of fulfilment of the 
 contract, it excuses the purchaser from the 
 necessity of making a tender of the re- 
 maining purchase money, and demanding 
 a deed. Richards v. Allen, 17 Maine, 296. 
 In an action for money had and received, 
 it was held, that the cases ' in which a 
 vendee is allowed to recover back money 
 paid on a contract for the purchase of real 
 estate, where the contract has been re- 
 scinded are: 1st, where the rescission is 
 voluntary and with the mutual consent of 
 the parties, and without default on either 
 side ; 2d, where the vendor cannot or will 
 not perform the contract on his part ; 3d, 
 where the vendor has been guilty of fraud 
 in making the contract. Wells J. in Battle 
 V. Rochester City Bank, 5 Barb. 414. 
 But where the vendor is in no default and 
 is ready and able to fulfill the contract on 
 his part, the vendee cannot recover back 
 money paid by him on the contract. Battle 
 V. Rochester City Bank, 5 Barb. 414 ; 
 Green v. Green, 9 Cowen, 46 ; Ketchum v. 
 Evertson, 13 John. 365 ; Sims v. Boaz, H 
 Sm. & M. 318; Congdon v. Perry-, 13 
 Gray, 3 ; Coughlin v. Knowles, 7 Met. 57 ; 
 Duncan u. Baird, 8 Dana, 101; Oldham 
 V. Sale, 1 B. Mon. 78 ; Collier v. Coates, 
 17 Barb. 471 ; Cobb v. Hall, 29 Vt. 510; 
 ante, 153, note (s^).] 
 
CH. V. § IV.j ACTION BY PUECHASER. 359 
 
 only money retained by the defendant against eonscience.(j!>) 
 But where, for example, the purchasers have had possession of 
 the property, so that the parties cannot be placed in statu quo, 
 the count for money had and received cannot be maintained. (g-) 
 The right to disaffirm the agreement is, in some cases, of great 
 importance. If an agent enter into an agreement on behalf of 
 his principal, but on the face of the agreement the agent appear 
 to be the real purchaser, and is so considered by the vendor, yet 
 if the purchaser actually pay the deposit, although through the 
 medium of his agent, and the vendor do not complete his en- 
 gagement, so that the contract is rescindable, the purchaser him- 
 self may maintain an action for recovery of the deposit, which 
 will be considered as money * received by the vendor to the use 
 of the real purchaser. (r) Where the purchase money is paid to 
 the seller's agent, he is not, like an auctioneer, a mere stake- 
 holder, and consequently the action to recover the money must 
 be against the seller himself, (s) 
 
 40. But if a man enter into a contract expressly as agent for 
 a third person, altliough really for his own benefit, and the other 
 party has no notice that the supposed agent is the principal, the 
 latter cannot maintain an action upon the contract without first 
 disclosing to the other party that he is the principal. (<) 
 
 41. Although the contract is under seal, yet the purchaser 
 may, if he have a right to rescind the contract, bring an action 
 for money had and received, to recover back his purchase 
 money.(M) 
 
 42. We shall elsewhere see that, generally speaking, a pur- 
 chaser, where a title cannot be made, is not entitled to damages 
 for the fancied loss of his bargain.(a;) In a case (y) where an 
 
 ( p) Dutch V. Warren, 2 Burr. 1010 ; 1 (t) Bickerton v. Burrell, 5 Mau. & Sel. 
 
 Str. 406 ; Dale ». Sollet, 4 Burr. 2133, sed 383. 
 
 ?«■ (u) Greville v. Da Costa, Peak. Ad. Cas. 
 
 (g) Blackburn t). Smith, 2 Ex. 783. 113. [But see Goddard v. Mitchell, 17 
 
 (r) Duke of Norfolk v. Worthy, 1 Camp. Maine, 366.] 
 
 337 ; Edden v. Eead, 3 Camp. 338 ; Be- (a;) Infra, ch. 9, s. 2. 
 
 thnne v. Earebrother, 5 Mau. & Sel. 385, (y) Bratt v. Ellis, MS. Purch. App. No. 
 
 391. 7 ; Jones v. Dyke, MS. ; lb. App. No. 8 ; 
 
 («) Bamford v. Shuttleworth, 11 Ad. & Sainsbury v. Jones, 5 My. & Cra. 1 ; see 
 
 El. 926; 6 Ad. & El. 1, 281 ; Rayner v. Simons i;. Patchett, 7 E. & B. .568, which 
 
 Grote, 1.5 M. & W. 359. confines the doctrine to a want of title 
 
 [23T] 
 
360 ACTION. INTEREST ON DEPOSIT. DAMAGES. [CH. V. § IV. 
 
 auctioneer, who had advanced some money on an estate, sold it 
 by auction after the authority from his principal had expired, 
 and the principal refused to confirm the sale, the court, in an 
 action brought by the purchaser, in which he declared on the 
 agreement, and for money had and received, &c., would not 
 allow him damages for the loss of his bargain, although it was 
 proved that the estate was worth nearly twice the sum which he 
 gave for it. 
 
 43. Nor in a case of this nature is a purchaser entitled to any 
 compensation, although he may be a loser by having sold out of 
 the funds, which may have risen in the mean time, because he 
 had a chance of gaining as well as losing by a fluctuation of 
 the price. (jsr) 
 
 44. But a purchaser is entitled to interest on his deposit ; (a) 
 and if the residue of the purchase money has been lying ready 
 without interest being made by it, he is entitled to interest on 
 that,(6) and also to interest on money borrowed by him and kept 
 idle to answer the purehase.(c) 
 
 45. Where the agreement is a binding one, the purchaser may 
 also, as we shall hereafter see, recover the expenses of investi- 
 gating the title. (d) ^ 
 
 *46. Where a vendee brings an action,,he will be compelled 
 to give the vendor a particular of every matter of fact which he 
 means to rely upon at the trial ; but not of any of the objections 
 in point of law.(e) But although the purchaser assign by way of 
 special damage, that he has incurred certain expenses, he will not 
 be compelled to furnish particulars of such special damage.(/) 
 Where in a single count there were several allegations of dam- 
 age, the vendor, the defendant, was not allowed to select some 
 
 upon the sale of an estate. [See Aberamau & Pul. 472 ; Fruhling v. Schroeder, 2 Bing. 
 
 Iron Works v. Wilkens, L. R. 5 Eq. 514 N. C. 77 ; Dobel u. Hutchinson, 3 Ad, & 
 
 et seq. ; S. C. L. R. 4 Ch. Ap. 101.] El. 355 ; 3 & 4 Will. 4, c. 42, s. 28. 
 
 (s) Flureau v. Thornhill, 2 Black. 1078. (^) Sherry v. Oke, 3 Dowl. P. C. 349 ; 
 
 [See Thayer v. Clemence, 22 Pick. 490 ; [Chitty Contr. (10th Am.ed.) 337, 714, in 
 
 King V. Pyle, 8 Serg. & R. 166.] note.] 
 
 (a) Ch.n, infra. {dj Post, ch. 9. 
 
 (b) Elureaa v. Thornhill, ubi sup. ; (e) CoUett v. Thomson, 3 Bos. & Pul. 
 Hodgesi>.Ld.Licbfield, IBing. ST. S.492; 246; Roberts v. Rowlands, 3 M. & W. 
 Walker v. Constable, 1 Bos. & Pul. 306 ; 543 ; post, ch. 9. 
 
 Gtosbell V. Archer, 2 Ad.& El. 500 ; 4 Nev. (/) Retallick «. Hawkes, 1 M. & W. 
 & Man. 485 ; Tappenden v. Randall, 2 Bos. 573. 
 
 [238] 
 
CH. V. § IV.]' ACTION. DAMAGES. STAMPS. 361 
 
 of the items and pay the money into court ; the whole count 
 taken together was in substance of a demand of unliquidated 
 damages. As the seller had broken his contract with the plain- 
 tiflF, the court would not help him to pare down the demand so 
 as to compel the plaintiff to go to trial at his own risk.(o-) But 
 where no particular has been obtained, the plaintiff is not con- 
 fined to the objections which he may have stated to the defend- 
 ant, but may take advantage of any other, which may entitle 
 him to recover as for breach of the agreement.(A) 
 
 47. The seller, where the contract is not completed, may recover 
 the whole of the purchase money, but he cannot keep the estate 
 too ; (A^) he is only to have made good his loss by the diminution 
 in the value of the land, or the loss of the purchase money in 
 consequence of the non-performance of the contract.(i) 
 
 48. If the purchaser die, his heir cannot sue at law for a breach 
 upon a mere agreement to sell, but where there has been a breach 
 in the purchaser's lifetime, and a loss to his personal property, 
 his personal representative may maintain an action, e. g. for 
 damage incurred by the loss of interest on the, deposit, and the 
 expenses of investigating the title.(A;) 
 
 49. If the agreement is in the hands of one of the parties, or 
 his attorney, equity, in case a bill is filed, will compel it to be de- 
 livered up to the other party, in order that it may be stamped. (/) 
 So, in case of an action, if only one part of the agreement has been 
 executed, the party in whose possession it is will be compelled 
 to produce it to the other party,(m) and it is not important that 
 the contract was made with the auctioneer, and not with the 
 seller, who is the defendant.(w) And if there are even two parts, 
 but one only is stamped, the party having the unstamped part 
 may give secondary evidence of the contents of the agreement, 
 
 (g) Hodges v. Ld. Lichfield, 9 Bing. (k) Orme v. Broughton, 10 Bing. 533 
 
 713. [misprinted in report]. [See Shaw v. 
 
 (h) Squire v. Tod, 1 Ca. 293 ; post, ch. Wilkins, 8 Humph. 647.] 
 
 9, 10, 11, as to title, &c. ; Todd v. Hoggart, (I) See now as to stamps, ch. 14, s. 2, 
 
 Moo. & Mai. 128, infra. infra, and supra, 130, 131. 
 
 (h^) [Nor after such recovery can the (m) Blakey v. Porter, 1 Taunt. 386; 
 
 seller claim to have the contract set aside ; Bateman v. Philips, 4 Taunt. 157 ; King 
 
 Nelson v. Carrington, 4 Munf. 332.] r,. King, lb. 666 ; Street v. Brown, 1 Mar. 
 
 (i) Laird v. Pim, 7 M. & W. 474 ; Moor 610. 
 
 V. Roberts, 3 C. B. N. S. 842. (n) Ginger v. Bayly, 5 Mo. 71. 
 
362 
 
 DEPENDENT COVENANTS. 
 
 [CH. V. § IV. 
 
 if the other, after notice, refuse to * produce the stamped part.(o) 
 Where one party produces the agreement, under a notice from 
 the other, the latter need not call the subscribing witness to prove 
 the execution of the agreement, as the defendant takes an inter- 
 est under it.(;?) Where the purchaser has signed an agreement, 
 he cannot, in an action for the deposit, avoid producing the 
 agreement by merely producing the conditions of sale and the 
 auctioneer's catalogue of sale.(^). 
 
 50. Where several letters form the agreement, one stamp only 
 is required, as constituting one agreement.(»*) Where letters 
 amount only to a proposal, no stamp is necessary.(s) - 
 
 51. Before quitting this subject, it must be remarked, that in 
 agreements for purchase, the covenants are construed accord- 
 ing to the intent of the parties, and they are therefore alv^ays 
 considered dependent where a contrary intention does not ap- 
 pear.(^) The true rule is, that it is not the employment of any 
 particular word which determines a condition to be precedent, 
 but the manifest intention of the parties.(M) Accordingly, where 
 
 (o) Garnons v. Swift, 1 Taunt. 507; 
 Waller ». Horsfall, 1 Camp. 501. 
 
 (p) Bradshaw v. Bennett, 5 C. & P.48 ; 
 see 17 & 18 Vict. u. 125, b. 26. [This rule 
 has been recognized and acted upon in the 
 American courts. Ehoades u. Selin, 4 
 Wash. C. C. 715, 719 ; Betts v. Badger, 
 12 John. 223; Jackson v. Kingsley, 17 
 John. 158 ; see, also, Jones v. Cooprider, 1 
 Blackf. 49 ; M'Pherson v. Eathbone, 7 
 Wend. 216, 219, per Savage Ch. J. ; 
 Stephenson v. Dunlap, 7 Monroe, 134, 
 137.] 
 
 (q) Curtis v. Created, 2 Ney. & Man. 
 449. 
 
 (r) Stead K. Liddard, 1 Bing. 196 ; Ather- 
 stone V. Bostock, 2 Man. & Gra. 511. 
 
 (s) Hudspeth v. Yarnold, 9 C. B. 625. 
 
 (t) Duke of St. Alban's ». Shore, 1 H. 
 Bla. 270 ; Goodtitle v. Nunn, 4 T. E. 761 ; 
 Glazebrook v. Woodrow, 8 T. E. 366; 
 Heard v. Wadham, 1 East, 619 ; see Am- 
 court V. Elever, 2 Kel. B. E. 159 ; Car- 
 penter V. Cresswell, 4 Bing. 409 ; 1 Mo. & 
 Pa. 66 ; Hunter v. Daniel, 4 Hare, 420 ; 
 [Taylor 1). Gallup, 8 Vt. 340 ; Siddell v. 
 
 [239] 
 
 Sims, 9 Sra. & M. 596 ; Peques v. Mosby, 
 7 Sm. & M. 340.] 
 
 (m) Smith V. Woodhouse, 2 NewE. 233 ; 
 Havilock v. Geddes, 10 East, 555. As to 
 where covenants are precedent or depend- 
 ent, Serj. Williams's n. to 1 Saund. 520; 
 Dawson v. Dyer, 5 B. & Ad. 584 ; Eoberts 
 u. Brett, 18 C. B. 561 ; White v. Beeton, 
 7 H. & N. 42. [The intention of the parties 
 as collected from the language of their 
 contract, is the true guide in such cases. 
 Howland w. Leach, 11 Pick. 154 ; Manning 
 V. Brown, 1 Eairf. 51 ; Brokenbrough v. 
 Ward, 4 Eand. 352 ; Bean v. Atwater, 4 
 Conn. 3 ; Johnson v. Eeed, 9 Mass. 78 ; 
 Gardiner v. Corson, 15 Mass. 500; Knight 
 u. New England Worsted Co. 2 Cush. 285, 
 286; Cadwell v. Blake, 6 Gray, 402; 
 Leonard v. Dyer, 26 Conn. 176, 177 ; 
 Chitty Contr. (10th Am. ed.) 807-812, & 
 notes ; Barruso v. Madan, 2 John. 145, 148 ; 
 Balch V. Smith, 12 N. H. 444 ; Todd v. 
 Summers, 2 Grattan, 167; D wiggins v. 
 Shaw, 6 Ired. 46; Wright v. Smyth, 4 
 Watts & S. 527 ; Adams v. Williams, 2 
 Watts & S. 227; Low v. Marshall, 17 
 
CH. V. § IV,] 
 
 DEPENDENT COVENANTS. 
 
 363 
 
 the contract by deed was dated the 22d April, 1841, and the 
 seller covenanted to deduce a good title (not saying when), and 
 on or before the 2oth March, 1844, on payment by the purchasers 
 of the purchase money to execute, at the cost of the purchasers, 
 a proper conveyance, and the purchasers covenanted on or before 
 the same 25th March, and on the execution of such conveyance, 
 to pay the money ; the court considered it plain that the execu- 
 tion of the conveyance and the payment of the money were 
 intended to be concurrent acts. The day for payment could not 
 happen before the thing which was the consideration for it, viz., 
 the execution of the conveyance, was to be performed. The 
 conveyance was to be prepared by the purchasers, as they were 
 to pay for it. But the purchasers were not bound to prepare the 
 conveyance until a good title had been produced, for that was a 
 condition precedent. The recitals to be introduced into the con- 
 veyance, and even the names of the persons who were to be 
 parties to it, could not be known to the purchasers with any 
 certainty until the title had been deduced. (a;) 
 
 Maine, 232 ; Lawrence v. Dole, U Vt. 
 549. The intention of the parties is to be 
 discoTered rather from the order of time in 
 which the acts are to be done, than from 
 the structure of the instrument or the 
 arrangement of the covenants. Goodwin 
 V. Lynn, 4 Wash. C. C. 714 ; Spcake v. 
 Sheppard, 6 Harr. & J. 85; Gardiner v. 
 Corson, IS^ass. 504.] 
 
 (x) Brymer v. Thames H. D. Co. 2 Ex. 
 549 ; 5 Ex. 696. [In the case of concurrent 
 considerations, that is, where the acts to be 
 done by each party are to occur at the 
 same period, neither party can sue on the 
 contract, without showing that he was 
 ready and willing to perform his part 
 thereof; Smith v. Lewis, 26 Conn. 110; 
 Howland v. Leach, 11 Pick. 151 ; Swan 
 V. brury, 22 Pick. 485 ; Lord v. Belknap, 
 1 Cush. 279; Howe v. Huntington, 15 
 Maine, 350 ; Warren v. Wheeler, 21 Maine, 
 484; Cook a. Doggett, 2 Allen, 439; 
 Jones V. Marsh, 22 Vt. 144 ; Cornwall v. 
 Haight, 8 Barb. 327 ; Williams u. Healy, 
 3 Denio, 363; Gazley v. Price, 16 John. 
 267 ; Shaw v. Turnpike Co. 2 Penn. 454 ; 
 Granby.u. McCleese, 2 Jones (Law), N. 
 
 Car. 142 ; Campbell v, Gittings, 19 Ohio, 
 347 ; Hough v. Rawson, 1 7 HI. 588 ; 
 Chitty Contr. (10th Am. ed.) 809, 810; 
 Shirley v. Shirley, 7 Blackf 542 ; Eamsay 
 V. Brailsford, 2 Desaus. 582 ; Tinney v. 
 Ashley, 15 Pick. 546; Ledyard v. Man- 
 ning, 1 Ala. 153; Sims v. Boaz, 11 Sm. & 
 M. 31 8 ; Morrison v. Ives, 4 Sm. & M. 
 652; Johnson v. Wygant, 11 Wend. 48, 
 49; Low V. Marshall, 17 Maine, 232; 
 Headley v. Shaw, 39 111. 354 ; Perry v. 
 Wheeler, 24 Vt. 286 ; Kane v. Hood, 13 
 Pick. 281, 283 ; or a discharge or preven- 
 tion of such performance by the other 
 party; see Chitty Contr. (10th Am. ed.) 
 809, 810; Giles v. Giles, 9 Q. B. 164; 
 Smith V. Lipscomb, 13 Texas, 532 ; Shaw 
 V. Turnpike Co. 3 Penn. 454; Smith v. 
 Lewis, 24 Conn. 624; S.C. 26 Conn. 110; 
 and where there has been such discharge, 
 the plaintiff must show notice to the other 
 side, of his readiness and willingness to 
 perform the contract. Chitty Contr. (10th 
 Am. ed.) 810; Doogood v. Rose, 9 C. B. 
 132; Smith v. Lewis, 26 Conn. 110; S. 
 C. 24 Conn. 624 ; see Cook v. Doggett, 2 
 Allen, 439.] 
 
364 ACTION. TENDERING OF CONVEYANCE. [CH. V. § IV. 
 
 52. In conformity with this rule a vendor cannot bring an 
 action *for the purchase money, without having executed the 
 conveyance, or offered to do so, or been ready and willing to do 
 so, where the purchaser is bound to prepare and tender the con- 
 veyance,(j^) unless the purchaser has discharged him from so 
 doing ; (2) but if the purchaser give a bill of exchange,, or other 
 security, for the purchase money, payable at a certain day, he 
 must pay it when due.(z^) But he will have his remedy upon 
 the agreement for the non-execution of the conveyance, (a) And 
 if the purchaser, had he actually paid the money secured by the 
 note as a deposit, would have been entitled to recover it back — 
 as where the' agreement could not be performed by the seller — 
 it is not clear that he might not resist the payment of the note 
 on the ground of want of consideration, but whilst the contract 
 remains open, he cannot resist the payment of the note.(&) 
 Where a purchaser of a lease was to pay 501. deposit, but gave 
 an I O U for 45Z., part of it, and a bad title was showil to the 
 lease, it was held that the seller could not recover the 45/., for 
 the I O U was only evidence of an account stated, and the 
 purchaser was in fact not indebted. (c) On the other hand,((i) 
 
 (y) Poole V. Hill, 6 M. & W. 835 ; of the deed. School District v. Rogers, 8 
 
 [Chitty Contr. (10th Am. ed.) 330-332, & Clarke (Iowa), 316.] 
 
 notes ; cases cited ante, 239, n. {x).] (a) Moggridget7. Jones, 14 East, 486 ; 3 
 
 (z) Jones w. Barkley, Doug. 684 ; Phil- Camp. 38; Swan o. Cox, 1 Mar. 176; 
 
 lips V. Fielding, 2 H. Bl. 123; 3 East, Spilleru. Westlake,2 B.& Ad. 155; Wilks 
 
 443 ; Laird v. Pim, 7 M. & W. 477 ; the v. Smith, 10 M. & W. 355 ; Burke v. Eyre, 
 
 passage in the text was not intended to 10 Ir. C. L. Rep. 104. ' 
 
 refer to the amount to be recovered ; 2 Ex. (6) 2 B. & Ad. 157, 158. 
 
 549 ; 19 L. J. N. S. 321, Ex. Ch. (c) Wilson v. Wilson, 14 C. B. 616 ; 2 
 
 («!) [See Manning u. Brown, } Fairf. Com. L. R. 818; Berry v. Storey, lb. 815. 
 
 49; Brashier u. Gratz, 6 Wheat. 528; (rf) Mattock u. Kinglake, lo' Ad. & El. 
 
 Bank of Columbia, v. Hagner, 1 Peters (U. 50. Qu. if it was incumbent on the seller 
 
 S.), 455; Hepburn B. Auld, 5 Cranch, 262; to tender a conveyance; see the case; 3 
 
 Winter u. Livingston, 13 John. 54. If, C.B.N. S. 836; Wilks v. Smith, 10 M. 
 
 however, it appears that the conveyance & W. 355 ; Sibthorp v. Brunei, 3 Ex. 826 ; 
 
 was to be made upon the payment of the Baggallay v. Pettit, 5 Ex. 637 ; [Robinson 
 
 purchase money, though secured by the v. Heard, 15 Maine, 296 ; Eveleth v. Scrib- 
 
 promissory note of the vendee, the two acts ner, 3 Fairf. 24; Babcock v. Wilson, 17 
 
 of conveyance and payment are so far de- Maine, 372 ; Chitty Contr. (10th Am. ed.) 
 
 pendent, that the vendor in an action upon 330; Anderson v. White, 27 111. 57; 
 
 the note, must show a performance, or an Younger v. Welch, 22 Texas, 417 ; Gale v. 
 
 offer to perform the contract on his part. Best, 20 Wise. 44 ; Barksdale v. Toomer, 
 
 unless the defendant has waived a tender 2 Bailey, 180; Ackley v. Elwell, 5 Halst. 
 
 [240] 
 
CH. V. § IV.] ACTION. TENDERING OF CONVEYANCE. 365 
 
 although the purchase money is to be paid as the consideration 
 of such sale and purchase, with interest to the time of the comple- 
 tion of the purchase, yet if a time is fixed for payment and none 
 for the conveyance, an action for not executing a conveyance 
 might be maintained by the purchaser before the day of pay- 
 ment, and an action by the seller for the money could be sus- 
 tained, although he had not tendered a conveyance.(e) 
 
 53. Where the price of a share of a patent was to be paid in 
 such manner as should be mutually agreed upon, the seller was 
 held entitled to maintain an action, because the purchaser refused 
 after the lapse of a reasonable time to make any agreement as 
 to the manner in which the price was to be paid.(/) Where the 
 purchaser covenanted to pay to the seller a sum as and for the 
 purchase money, part in money down and the remainder by four 
 promissory notes, bearing even date with the deed, payable to 
 the seller and his order on the 1st July in every year until the 
 purchase money should be paid, *with interest, the covenant 
 was held to be a covenant to pay the money which was not 
 satisfied by giving promissory notes which were not paid.(g-) 
 But an agreement to buy an estate and pay for it on a certain 
 day, implies that the seller is to convey the estate at the same 
 time to the purchaser ; the one thing is to be exchanged for the 
 other.(g-i) And the mere postponement of the time for perform- 
 ance will not alter the eflect of the prior stipulation, which is 
 that the money Shall be paid upon the execution of the convey- 
 ance.(A) 
 
 304; Bradford v. Gray, 3 Yerger, 463; (/) Hall u. Conder, 3 Jur. N. S. 366. 
 
 Morris v. Sliter, 1 Denio, 59; Sayre v. (g) Dixon v. Holdroyd, 3 Jur. N. S. 
 
 Craig, 4 Pike, 10.] 1147. 
 
 (e) Wilks V. Smith, 10 M. & W. 355; (jri) [See Hardy v. McKesson, 6 Jones 
 
 Dickers. Jackson, 6 C. B. 103, as to goods; (Law), 554. A promise to pay a certain 
 
 Spartati v. Benecke, 19 L. J. N. S. C. P. sum as the price of a lot of laud "upon 
 
 293 ; Yates v. Gardiner, 20 L. J. N. S. the presentation of the deed," implies 
 
 Ex. 327, where the purchaser was bound tender cf the deed as a condition precedent 
 
 to pay on a day fixed. [See Taylor w. John- to the payment. Welch v. Matthews, 98 
 
 ston, 19 Texas, 351. A yendor who has Mass. 131.] 
 
 agreed to make title upon payment need (h) Marsdenti. Moore, 4 Exch. N. S. 500. 
 
 not give the deed until payment in full, [See Irvin v. Bleakley, 67 Penn. St. 24, 28. 
 
 and therefore can sue for instalments, ex- If an extension of the time originally 
 
 cept the last, without tendering a deed, agreed upon for payment is given, at the 
 
 Terry v. George, 37 Miss. 539 ; Sharp v. request and for the accommodation of the 
 
 Baker, 22 Texas, 306.] purchaser, with notice that the contract 
 
 [241] 
 
366 
 
 ACTION. TENDERIXG OF CONVEYANCE. [CH. V. § IV. 
 
 54. On the other hand, a purchaser cannot maintain an action 
 for breach of contract, without having tendered a conveyance, 
 and the purchase money.(t) It was always clear that the vendor 
 need not tender a conveyance where the purchaser was required 
 to prepare it,(A') or to bear the expense of it ; (l) and it may now 
 be considered clear that the purchaser, and not the vendor, ought 
 to prepare and tender the conveyance.(m)(l) 
 
 must be closed at the expiration of that 
 time and that no longer extension will be 
 given, upon payment being then made a 
 tender of the deed is still necessary to put 
 the vendee in default. Laird v. Smith, 44 
 N. Y. 618; see Cythe v. La Fontain, 51 
 Barb. 186.] 
 
 (i) 1 Esp. 191; Ex parte Hylliard, 1 
 Atk. 147 ; Gibson v. Goldsmid, 5 De G., 
 M. & G. 757 ; 1 Jur. N. S. 1 . [The vendee 
 must tender the unpaid purchase money, 
 as a general thing, whether he wishes to 
 rescind or enforce the agreement. Irvin v. 
 Bleakley, 67 Penn. St. 28. But so long 
 as neither party makes any tender, of the 
 deed on the one hand, or of payment on 
 the other, neither party is in default and 
 the contract subsists. Either party may 
 make the proper tender and insist upon 
 specific performance at any time, until 
 barred by a statute of limitations. Laird 
 t;. Smith, 44N. Y. 618 ; Sargent v. Adams, 
 3 Gray, 80 ; Irvin v. Bleakley, 67 Penn. St. 
 24 ; Lawrence v. Dole, 1 1 Vt. 549 ; Low v. 
 Marshall, 17 Maine, 232 ; Swan v. Drury, 
 22 Pick. 485 ; Guthrie v. Thompson, 1 
 Oregon, 353. But see St. Paul Division v. 
 Brown, 9 Minn. 157. But it was held In 
 Welch V. Matthews, 98 Mass. 131, that no 
 action will lie on a promise to pay a cer- 
 tain price for a lot of land " upon the pres- 
 entation of the deed," if, after the date of 
 the promise, the promisee fails for more 
 than five years to tender a good deed, and 
 there is nothing to show that so long a 
 delay was intended or assented to by the 
 promisor. Welch v. Matthews, 98 Mass. 
 131.] 
 
 [k] Hawkins v. Kemp, 3 East, 40. 
 
 {I) Seward v. Willock, 5 East, 198. 
 
 (m) Baxter v. Lewis, For. Ex. 61 ; Mar- 
 tin V. Smith, 6 East, 553 ; 2 Smith, 543 ; 
 Hallewell v. Morrell, 1 Scott, N. R. 309 ; 
 Standley v. Hemington, 6 Taunt. 561 ; 
 Price V. Williams, 1 M. & W. 6 ; Mattock 
 V. Kinglake, 10 Ad. & El. 50; Laird v. 
 Pim, 7 M. & W. 474 ; 2 Atk. 208 ; 1 T. 
 R. 772; Wilmot,218; Stephens w. Medina, 
 3 Gale & Da. 110 ; 4 Q. B. 422 ; Poole v. 
 Hill, 6 M. & W. 835; Bowlby v. Bell, 3 
 C. B. 284 ; 2 Ex. 549 ; Tennent v. Eobin- 
 son, 2 Ir. C. L. E. 152; [2 Dart V. & P. 
 (4th Eng. ed.) 877; Chitty Contr. (10th 
 Am. ed.) 330, 331 ; Taylor v. Longworth, 
 14 Peters (U. S.), 175. But in most of the 
 American States, under a contract to con- 
 vey real estate, the vendor is generally 
 bound to prepare the deed of conveyance 
 at his own expense, unless there is some 
 stipulation to the contrary. In Massachu- 
 setts, a party who contracts to execute and 
 deliver a deed is bound to prepare the 
 deed, if there be no stipulation that it 
 shall be prepared by the intended grantee. 
 Tinney v. Ashley, 15 Pick. 546 ; see Swan 
 u. Drury, 22 Pick. 485. The rule is the 
 same in Maine. Hill v. Hobart, 16 Maine, 
 164. In New York the vendor who has 
 bound himself to convey land by a certain 
 day, must be at the expense of having the 
 instrument of conveyance drawn, and 
 must have it prepared and ready for de- 
 liveiy. Connelly v. Pierce, 7 Wend. 129 ; 
 Carpenter v. Brown, 6 BarB.yyft; see 
 Hackett v. Huson, 3 Wend. 250; Fuller v. 
 Hubbard, 6 Cowen, 13, 18, note; Hudson 
 
 (1) The dicta the other way are in Pincke v. Cartels, 4 Bro. C. C. 332 ; Grousook v. 
 Smith, 3 Ans. 877 ; Heard v. Wadham, 1 East, 627 ; Seton v. Slade, 7 Ves. 278. 
 
CH. V. § IV.] ACTION. TENDERING OF CONVEYANCE. 
 
 367 
 
 55. But although a purchaser is expressly required to prepare 
 a conveyance, yet if a bad title be produced, he may maintain 
 
 V. Swift, 20 John. 23, 27. In Pennsylvania 
 the vendor must prepare the deed. Sweit- 
 zer V. Hummell, 3 Serg. & E. 228 ; but see 
 Poulson V. Ellis, 60 Penn. St. 134. So in 
 Illinois ; Headley v. Shaw, 39 111. 354. So 
 in Mississippi; Standifer v. Davis, 13 Sm. 
 & M. 48 ; Johnston v. Beard, 7 Sm. & M. 
 217; see Smith v. Henry, 2 Eng. 207; 
 Buckmaster v. Grundy, 1 Scam. 310 ; so 
 in Texas ; Walling v. Kinnard, 10 Texas, 
 .^08 ; so in Iowa ; "Winton v. Sherman, 20 
 Iowa, 295. The rule is the same in Min- 
 nesota ; Paul &c. V. Brown, 9 Minn. 157 ; 
 so in Wisconsin and Oregon ; Seeley v. 
 Howard, 13 Wise. 336 ; Guthne v. Thomp- 
 son, 1 Oregon, 353; so in Arkansas ; Ar- 
 ledge V. Rooks, 22 Ark. 427 ; see Byers v. 
 Aiken, 5 Pike, 419; Dennere v. Boyer, 5 
 Pike, 497; so in Ohio; Taylor v. Long- 
 worth, 14 Peters (U. S.), 175. This being 
 the general rule, the vendor, in an action 
 against the vendee for the purchase money, 
 must show that he has prepared and ten- 
 dered a deed of conveyance, or has offered 
 to prepare and tender such deed, and has 
 been discharged or excused from preparing 
 and tendering it by the acts or conduct of 
 the vendee. See Green v. Reynolds, 2 
 John. 207 ; Parker v. Parmlee, 20 John. 
 130; Johnson a. Wygant, 11 Wend. 48; 
 Hunt V, Livermore, 5 Pick. 395 ; Kane u. 
 Hood, 13 Pick. 281 ; Warner v. Hatfield, 4 
 Blackf. 392 ; Taylor v. Perry, 5 Blackf. 
 599 ; Hardy v. McKesson, 6 Jones (Law), 
 554 ; S. C. Jones (Law) N. Car. 567 ; Smith 
 V. Henry, 2 Eng. 207 ; Jackson v. Speed, 
 2 Duvall (Ky.), 426 ; Adams v. Will- 
 iams, 2 W. & Serg. 227 ; Tharin v. 
 Eicklin, 2 Rich. 361 ; Thomas v. Lanier, 
 23 Ark. 639 ; Davidson v. Van Pelt, 15 
 Wis. 341. In Tinney v. Ashley, 15 
 Pick. 546, Wilde J. said : " When one 
 party demands of the other performance 
 of a mutual agreement, by which concur- 
 rent acts are to be performed by each 
 party, an offer on the part of the party 
 mnking the dem.ind, to perform his part of 
 
 the agreement, is implied and understood ; 
 and when the other party refuses to com- 
 ply, he thereby dispenses with any other 
 offir. And when he neglects to comply 
 without offering any reason for his non- 
 compliance, the legal effect is the same." 
 Where the vendee has given notice to the 
 vendor of his refusal to perform the con- 
 tract, no tender of a deed by the vendor is 
 necessary to sustain a bill for specific per- 
 formance. Crary v. Smith, 2 Comst. 60 ; 
 North V. Pepper, 21 Wend. 636. As to 
 the efifect of an offer by the vendor of a 
 deed not capable of being recorded in 
 consequence of there being no proper evi- 
 dence of acknowledgment, see Smith v. 
 Smeltzer, 1 Hilton (N. Y.), 287. On the 
 other hand, the vendee, in proceedings 
 against the vendor, must tender payment 
 of the purchase money and demand a deed, 
 which the vendor must prepare and ex- 
 ecute at his own expense. See Hudson v. 
 Swift, 20 John. 24 ; Fuller o. Williams, 7 
 Cowen, 53 ; Carpenter v. Brown, 6 Barb. 
 147 ; Smith v.^ Smith, 25 Wend, 405 ; Ish- 
 mael v. Parker, 13 111. 324; Clarke v. 
 Locke, U Humph. 300; Western R. R. 
 Corp. V. Babcock, 6 Met. 358 ; Dye v. 
 Montague, 10 Wise. 18 ; Baum v. Dubois, 
 43 Penn. St. 260. Where the vendor 
 bound himself to convey, on or before a 
 certain day, and the vendee .agreed to pay 
 on the deed being executed, the vendee is 
 not in fault in not tendering payment, if 
 the deed has not been executed or tendered. 
 Huffman v. Hummer, 3 Green (N. J.), 83 ; 
 Welch !/. Matthews, 98 Mass. 131. To 
 entitle a vendee to demand a deed, it is 
 sufficient that he is ready and offers to 
 comply with the contract on his part, and 
 has the ability to perform it. Smoot v. 
 Rea, 19 Md. 398 ; see Smith v. Lewis, 24 
 Conn. 624 ; S. O. 26 Conn. 110; Cook v 
 Doggett, 2 Allen, 439 ; Parker v. Perkins, 
 8 Cush. 318; Irvin v. Gregory, 13 Gray, 
 215. Where in a contract for the sale of 
 land it was provided that " the vendee 
 
368 
 
 CONVEYANCE. NE EXEAT REGNO. 
 
 [CH. 
 
 IV. 
 
 an action for recovery of his deposit, without tenderirig a con- 
 veyance.(w) So where a vendor has, by selling the estate, in- 
 capacitated himself from executing a conveyance to the first 
 purchaser, that renders further expense and trouble on his part 
 unnecessary; and he may accordingly sustain an action without 
 tendering a conveyance, or the purchase money.(o) 
 
 56. We have already seen what are the liabilities of both 
 purchaser and seller, in respect of occupation where the contract 
 is rescinded.(/») 
 
 57. A writ of ne exeat regno lies against the purchaser who 
 has not paid the purchase money, upon his threatening to go 
 abroad, if the vendor's title has been accepted,(g') or there has 
 been a decree for a specific performance after the title has been 
 investigated.(»-) 
 
 should cause the title to be examined, and, 
 upon receiving a deed properly executed," 
 " should pay the purchase money," it was 
 held that the vendor was liable to pay for 
 the requisite stamp. Callaghan v. Mc- 
 Credy, 48 Penn. St. 463. By the practice 
 in Massachusetts the vendor provides the 
 stamp, and this is undoubtedly the rule in 
 all those States where the vendor is bound 
 to prep.ire the deed.] 
 
 (n) Seward w. Willock, Mftt" sup.-; Lown- 
 des V. Bray ; S. P. ruled by Lord Ellen- 
 borough, Sitt. after T. T. 1810; 11 Ad. & 
 El. 933. • 
 
 (o) Knight V. Crockford, 1 Esp. 189; 
 Duke of St. Alban's v. Shore, 1 H. Black. 
 270 ; Jackson v. Jacob, 3 Bing. N. C. 869 ; 
 Eranklyn v. Lamond, 4 C. B. 637. [If the 
 vendor has agreed to convey on the per- 
 formance of certain conditions by the 
 vendee, and has purposely incapacitated 
 himself to make a conveyance, the vendee 
 is exonerated from the performance of the 
 conditions on his part. Miller v. Whittier, 
 32 Maine, 203; Newcomb v. Brackett, 16 
 Mass. 161 ; Eames v. Savage, 14 Mass. 
 425; Thurston v. Franklin College, 16 
 Penn. St. 154; Nichols v. Freeman, 11 
 Ired. 99 ; Turner v. Parry, 27 Ind. 163 ; 
 White V. Dobson, 17 Grattan, 262. So a 
 vendee may, before demanding a deed, 
 sustain an action for failure to convey, if 
 the vendor shows that he does not intend 
 
 to convey; Gray v. Dougherty, 25 Cal. 
 266 ; see Runkle v. Johnson, 30 111. 328 ; 
 Canada v. Canada, 6 Gush. 15 ; Hurd v. 
 Denny, 16 HI. 492; White v. Dobson, 17 
 Grattan, 262 ; Karker v. Haverly, 50 Barb. 
 89. So where a tender wonlS be nuga- 
 tory ; Kerr v. Purdy, 50 Barb. 24 ; Bedell 
 K. Smith, 37 Ala. 619. A provision in an 
 agreement for the sale and purchase of 
 land, that the purchaser shall pay the con- 
 sideration, " as soon as it can be ascer- 
 tained that the title to the premises is good 
 and unincumbered," imposes upon the 
 purchaser the duty to examine the title 
 before accepting the conveyance. Carr v. 
 Roach, 2 Duer (N. Y.), 20. No action 
 will lie on a promise to pay a certain sum 
 as the price of a lot of land " upon the 
 presentation of the deed," if the deed ten- 
 dered conveys no title to the land. Welch 
 1/. Matthews, 98 Mass. 131 ; see Abendroth 
 V. Greenwich, 29 Conn. 356 ; Jonghaus v. 
 McCormick, 18 Cal. 660.] 
 
 ip) Sup. p. 179, 180. 
 
 (?) Goodwin v. Clarke, 2 Dick. 497 ; 
 Anon. lb. ; Jackson v. Petrie, 10 Ves. 164. 
 
 (r) Bochm v. Wood, Tur. & Ens. 332 ; 
 Morris v. M'Neil, 2 Bus. 604 ; [2 Dan. Ch. 
 Pr. (4th Am. ed.) 1700; Cowdiu v. Cram, 
 
 3 Edw.Ch. 231 ; De Rivafinola v. Corsette, 
 
 4 Paige, 264 ; Brown v. Half, 5 Paige, 
 235.1 
 
CH. V. § v.] 
 
 COMMON LAW POWERS, 
 
 369 
 
 *58. Thus the law stood upon the authorities, but now, as we 
 have seen, courts of law may by mcmdamus enforce specific per- 
 formance as well as a court of equity. The plaintiff in any 
 action, except replevin and ejectment, may claim either together 
 with any other demand which may be enforced in such action, 
 or separately, a writ of mandamus commanding the defendant 
 to fulfil any duty, in the fulfilment of which the plaintiff is 
 interested. And if judgment be given to the plaintiff that a 
 mandamus do issue, the court may, besides issuing execution in 
 the ordinary way for costs and damages, issue a peremptory 
 mandamus to the defendant, commanding him forthwith to per- 
 form the duty to be enforced. And, as we have seen, the court, 
 in case of default, may direct that the act required to be done, 
 may be done by the plaintiff, or some other person appointed by 
 the court, at the defendant's expense, and the expenses and costs 
 may be enforced by execution. (5) Equitable defences, besides, 
 are available at law. We have seen that courts of law have 
 found themselves embarrassed in attempting to carry these pow- 
 ers into execution. 
 
 SECTION V. 
 
 or RESCINDING AND OF CONFIRMING A CONTRACT. 
 
 Notice of rescinding. 
 
 Doctrine of rescinding a contract. 
 
 ;l 
 
 Misrepresentations. 
 
 4. Concealment of a fact by a purchaser. 
 
 5. Dealing unduly witli purchaser. 
 
 6. Fraud necessary. 
 
 7. Seller believing his own misrepresenta- 
 , tion. 
 
 9. Eescinding a conveyance for unreason- 
 ableness of price. 
 
 10. For inadequacy. 
 
 11. Because trustee sold to himself. 
 
 12. Where by mistake a man bought hia 
 
 own estate. i 
 
 14. Effect of improperly charging fraud. 
 
 15. Because defect in title concealed. 
 
 16. Where a purchaser by mistake gets a 
 
 larger interest. 
 
 17. Eviction not necessary to relief. 
 
 18. Because remainder sold had been barred. 
 
 19. Action of deceit. 
 
 20. Dobell V. Stevens. 
 
 21. Action for money had and received. 
 
 22. Fuller v. Wilson. 
 
 23. Comfooto. Fowke. 
 
 24. After sale completed, the principal not 
 
 liable for the fraud of his agent. 
 
 25. Eule in equity. 
 
 26. Purchaser's general remedy. 
 
 27. Acquiescence bars right. 
 
 28. Time enlarged for payment of interest. 
 
 29. Limited time to take objection. 
 
 30. Confirmation releases right. 
 
 (s) 17 Vict. t. 125, s. 68-77 ; sup. s. 3, pi. 60. 
 24 [242] 
 
370 
 
 OF EESCINDING A CONTRACT. 
 
 [CH. V. § V. 
 
 31. Although new circumstance of fraud dis- 
 
 covered. 
 
 32. Acquiescence where fraud and oppres- 
 
 sion. 
 
 33. Confirmation where fraud ; whether 
 
 fraudulent transaction can be pui'ged. 
 
 34. Relief against subpurchaser. 
 
 35. Requisites to valid confirmation. 
 
 36. Time a bar to relief. 
 
 ■ 37. Concealed fault in mine. 
 * 38. Statutory bar ; equitable bar. 
 
 39. ) 
 
 . e !• Profit and loss by stock ; interest. 
 
 40. PuSrchaser, how charged. 
 
 41. Occupation rent ; improvements. 
 
 42. Not interest upon interest. 
 
 43. Repairs after notice of defect in title. 
 
 44. Conversion of shop into private house. 
 
 46. Power of court where bill is dismissed. 
 
 47. After an injunction : interest. 
 
 48. Retransfer of sums after reversal of de- 
 
 cree. — No interest upon costs. — Power 
 of court after reversal, and cause re- 
 mitted. 
 
 49. Bill dismissed after decree, upon defend- 
 
 ant's default. 
 
 50. ■ffTiether purchase money can be fol- 
 
 lowed. 
 
 1. Where one party fails in performing the contract, the 
 other, if he mean to rescind it, should give a clear notice of his 
 intention. (a) 
 
 2. The right to rescind a contract arises either before the com- 
 pletion of it (as for the want of title, for example) or after the 
 contract is completed. The first class of cases we have already 
 considered generally,(6) and we have now only to inquire in 
 what cases a party may require a contract to be delivered up ; 
 and, 2dly, under what circumstances a party may rescind the con- 
 tract after the execution of the conveyance.(6i) And, first, as to 
 the delivering up of a contract. Few cases, Lord Eldon observed, 
 turn on greater niceties than those which involve the question 
 whether a contract ought to be delivered up to be cancelled, or 
 -whether the parties should be left to their legal remedy. (c) 
 
 3. Where representations are made with respect to the nature 
 and character of the property which is to become the subject of 
 purchase, affecting the value of that property, and those repre- 
 sentations afterwards turn out to be incorrect and false to the 
 knowledge of the party making them, a foundation is laid for 
 maintaining an action to recover damages for the deceit so 
 practised ; and in a court of equity a foundation is laid fqr 
 setting aside the contract which was founded upon a fraudulent 
 basis, ((i) 
 
 (a) Reynolds'^. Nelson, 6 Mad. 18. changed by part execution, that the par- 
 
 (6) Sup. s. 4. ties cannot be put in statu quo. Bellows v. 
 
 (i)i) [See Taylor u. Meet, 4 Barb. 95; Cheek, 20 .^rk. 424; McKeen u. Beau- 
 
 Bartlett v. Drake, 100 Mass. 174. A con- pland, 35 Penn. St. 488.] 
 
 tract cannot be rescinded without mutual (c) Jac. 172. 
 
 consent, when circumstances have been so (d) Attwood v. Small, 6 CI. & Fin. 
 
 [243] 
 
CH. V. § V.J 
 
 OF RESCINDING A CONTRACT. 
 
 371 
 
 4. Where a man, knowing of the death of a person, by whose 
 death the value of the property in the hands of assignees of a 
 bankrupt was improved, purchased the property, and did not 
 disclose the fact, and they were unaware of it, although it was 
 publicly known, Lord Eldon ordered the contract to be deliv- 
 ered up.(e) 
 
 5. And(/) where, pending the investigation of a point upon 
 the title, the seller and his solicitor induced the purchaser to pay 
 the purchase money, and to execute deeds of covenant for the 
 production of title deeds, the transaction amounting to a fraud, 
 the contract was rescinded without reference to the validity of 
 the objection to the * title, and the seller was ordered to repay the 
 
 395, 444, 445, 466, 478, 502; Sugd. H. of 
 L. 596 ; Clarke v. Dickson, 1 Ell., Bl. & 
 Ell. 148; [1 Dart V. & P. (4th Eng. 
 ed.) 95. A bargain, founded upon a ma- 
 terial misrepresentation of matters of fact, 
 even though they are inadvertently made 
 through the mutual mistake of the parties, 
 or by mistake of the grantors alone, will 
 be annulled in equity. Mistake, as well 
 as fraud, in any representation of a fact 
 material to the contract, furnishes a suffi- 
 cient ground, in equity, to set it aside and 
 declare it a nullity. Daniel v. Mitchell, 1 
 Story, 172; Doggctt v. Emerson, 3 Story, 
 700 ; Hough v. Richardson, 3 Story, 659 
 Warner v. Daniels, 1 Wood. & M. 90 
 Smith V. Babcock, 2 Wood. & M. 246 
 Tuthill «. Babcock, 2 Wood. & M. 299 
 Masen v. Crosby, 1 Wood. & M. 342 
 Ferson v. Sanger, 1 Wood. & M. 138 ; 1 
 Story Eq. Jur. § 140 et seq.; Pearson w. 
 Morgan, 3 Bro. C. C. 388; Kosevelt i<. 
 Fulton, 2 Cowen, 134 ; S. C. 5 John. Ch. 
 174; Champliu v. Lay tin, 6 Paige, 189; 
 S. C. 13 Wend. 407 ; Lewis v, M'Lemore, 
 10 Yerger, 206 ; Parham v. Randolph, 4 
 How. (Miss.) 435; Brooks v. StoUey, 3 
 McLean, 523; Sherwood v. Salmon, 5 
 Day, 439 ; Coe v. Turner, 5 Conn. 86 ; 
 ante,.lntT. §§ 1-22 ; Spun- v. Benedict, 99 
 Mass. 463 ; Jennings v. Broughton, 5 De 
 G., M. & G. (Am. ed.) 126, note (2). 
 " The whole doctrine turns upon this, that 
 
 he who misleads the confidence of another 
 by false statements in the substance of a 
 purchase shall be the suflferer, and not his 
 victim." Story J. in Doggett v. Emerson, 
 3 Story, 733. If the truth of the false 
 representations can be ascertained with 
 ordinary vigilance, they are not actionable. 
 Brown v. Castles, 11 Cush. 348; Mooney 
 V. Miller, 102 Mass. 220; Jennings u. 
 Broughton, 5 De G., M. & G. (Am. ed.) 
 126, and cases in note (1); 1 Story Eq. 
 Jur. § 200 a. False representations made 
 by the seller to the buyer of a lot of land, 
 upon the land before the sale, and as an 
 inducement thereto, as to the quantity of 
 the wood and hay that could be cut from 
 it, are not actionable ; nor his like repre- 
 sentations as to the possibility of acquiring 
 adjoining land with buildings thereon, be- 
 longing to a third person, although there 
 were no buildings on the lot sold ; nor his 
 like representations as to the number of 
 acres in the lot, if he pointed out its 
 boundaries truly. Mooney v. Miller, 102 
 Mass. 217 ; see Gordon v. Parmelee, 2 
 Allen, 212. So as to representations of 
 the vendor as to the price he paid for the 
 land. Hemmer v. Cooper, 8 Allen, 334.] 
 
 (e) Turner v. Harvey, Jac. 169, post ; 
 Jones V. Keene, 2 Moo. & Ro. 348 ; [ante, 
 5, note {k).] 
 
 (/) Berry v. Armistead, 2 Ke. 221. 
 
 [244] 
 
372 OP RESCINDING A CONTRACT. [CH. V. § V. 
 
 purchase money with interest, cost, charges, and expenses, and 
 costs of suit.(g') 
 
 6. Unless a clear fraud be established, there ought to be no 
 relief in equity, for there is a great difference between establish- 
 ing and rescinding an agreeiiient.(g"^) The judgment in the. 
 Lords in Small v. Attwood, lays down a clear rule, requiring 
 fraud to be distinctly proved in the representations by the seller, 
 and further establishing that where the purchaser had the means , 
 of ascertaining the truth of the representations, and did inquire, 
 but did not use due diligence in the inquiry, he will find it diffi- 
 cult to obtain any equitable relief, more especially if he is guilty 
 of delay in his application.(/t) In that case, for example, it was 
 not too much to expect that if, iti a purchase of such magnitude, 
 in which of course there was previous inquiry, the purchasers 
 bought on the representations of the seller as to the costs of pro- 
 ducing pig iron, they should have required him to bind himself 
 by the contract _ to those representations, and to agree to reduce 
 the purchase money if they proved to be incorrect. Such a sim- 
 ple precaution would have prevented the vast litigation in that 
 case ; but it is clear that if such a demand had been made, it 
 would not have been acceded to, and that if it had been refused, 
 the purchasers would have executed the contract without it. 
 And it was still more reasonable to expect in that case, where, 
 after a new examination of the property and of the accounts, a 
 very large abatement was made in the purchase money, and a 
 new contract was executed, the purchasers would have stipu- 
 lated by that contract that the seller should be bound by his 
 further or renewed representations, if they intended to impeach 
 the renewed contract, should the representations turn out to be 
 incorreet.(i) In a case depending upon alleged misrepresenta- 
 tions as to the nature and value of the thing purchased, the 
 
 (g) Edwards D.M'Leay, Coo. 318; Lot- Eng. 68 ; KnuckoUs o. Lea, 10 Humph, 
 
 ell V. Hicks, 2 Yo. & Col. 51. 577 ; Pratt v. Philbrook, 33 Maine,' 17.] 
 
 (gl) [See 1 Story Eq. Jur. §§ 191 et seq. ; ' (h) Yo. 407 ; 6 Ch & Fin. 332 ; Sugd. 
 
 New Brunswick & Canada Railway & H. of L. 596 ; Jennings v. Broughton, 1 7 
 
 Land Co. u. Conybeare, 6 L. T. N. S. 109 ; Beav. 234 ; 5 De G., M. & G. 126 ; [( Am. 
 
 S. C. 9 H. L. Cas. 711; Buck v. Sher- ed.) note (2); Aberaman Iron Works v. 
 
 man, 2 Douglass, 176 ; Beebe v. Swart- Wickens, L. R. 5 Eq. 485, 505, 506 ; S. 
 
 wout, 3 Gilman, 162 ; Y^ates v. Prior, 6 C. L. R. 4 Ch. Ap. 101.] 
 
 (i) Sugd. H. ofL. C. 606. 
 
CH, V. § v.] OF RESCINDING A CONTRACT. 373 
 
 defendant cannot adduce more conclusive evidence or raise a 
 more effectual bar to the plaintiff's case, than by showing that 
 the plaintiff was from the beginning cognizant of all the matters 
 complained of, or after full information concerning them con- 
 tinued to deal with the property, and even to exhaust it in the 
 enjoyment, as by working mines. (A) 
 
 7. At law, upon a sale of chattels, — pictures, for example, — 
 • where there is no express warranty, but only a representation, the 
 
 seller will not be answerable, although the representation prove 
 to be untrue, if he believed it to be true.(Z) 
 
 8. In Cadman v. Horner,(TO) Sir W. Grant refused a purchaser 
 *a specific performance on account of a slight misrepresentation 
 by him, but observed, that this was not a case where the court 
 was called upon to rescind an agreement, and to decree the con- 
 veyance executed in pursuance of it to be delivered up to be 
 cancelled. (m^) 
 
 9. Secondly. We shall elsewhere show that there are few 
 cases in which a purchaser can rescind a contract after the con- 
 veyance is executed, and the purchase completed, on account of 
 the price being unreasonable,(w) 
 
 10. Nor, on the other hand, can the vendor easily obtain relief 
 on account of the inadequacy of the consideration after the con- 
 veyance is executed. (o) 
 
 11. A cestui que trust, whose trustee has sold the estate to 
 
 {k) Vigers i;. Pike, 8 CI. & Fin. 562, (n) Ch. 7. 
 
 per L. C. ; [1 Story Eq. Jur. §§ 202, 203 a.] (o) Ch. 7. [Warner v. Daniels, 1 Wood. 
 
 {I) De Sewhanberg u. Buchanan, 5 C. & M. 90. But where the vendee of land 
 
 & P. 343. [But where the vendor makes made representations respecting the value 
 
 an untrue representation as of his own of what was taken for the consideration, 
 
 knowledge, not knowing whether it is true which were false in material points, and 
 
 or false, he will be answerable. Stone v. which influenced the vendor to sell, 
 
 Denny, 4 Met. 151 ; Hammatt v. Emerson, whether the vendee knew them to be false 
 
 27 Maine, 308 ; Hazard v. Irwin, 18 Pick, or not, it was held that they would vitiate 
 
 95; Chitty Contr. (10th Am. ed.) 755, the sale, though a conveyance thereof had 
 
 and note; ante, 5 note (/), and cases been made. Warner u. Daniels, 1 Wood, 
 
 cited.] & M. 90. Woodbury J. said : " Often an 
 
 (m) 18 Ves. 10; Mortlock u. Buller, TO entire failure of consideration in the re- 
 
 Ves. 308 ; Day ». Newman, 2 Cox, 77. ceipt of what is mere moonshine, is suffi- 
 
 (mi) [Taylor v. Fleet, 4 Barb. 102 ; 2 cient to rescind a contract." 1 Wood. & 
 
 Kent (11th ed.), 487 ; Seymour v. Delan- M. 110 ; Hardeman v. Burge, 10 Yerger, 
 
 cey, 6 John. Ch. 222 ; Osgood v. Franklin, 202 ; Fripp v. Fripp, Rice Eq. 84.] 
 2 John. Ch. 23, 24; ante, 4, note; East- 
 man V. Plumor, 46 N. H. 464.] 
 
 [245] 
 
374 OF EES.CINDIXG A CONTEACT. [CH. V. § V. 
 
 himself, may rescind the sale; but this subject is fully discussed 
 in a subsequent part of this work.(;?) 
 
 12. Where a man having a right to an estate, purchased it of 
 another person, being ignorant of his own title, the vendor was 
 compelled to repay the purchase money, with interest from the 
 time of filing the bill, and costs ; for though no fraud appeared, 
 yet there was a plain mistake.(^) And this is clearly so in 
 a case of fraud ; (q^) in a case of mere ignorance the point is ■" 
 doubtful, (r) 
 
 13. A purchase rnay not be impeachable for fraud and impo- 
 sition, yet the conveyance may be set aside as improvidently 
 entered into where there is knowledge on the one side and pov- 
 erty and ignorance on the other.(s) 
 
 14. A seller may have a title to relief on the ground of under- 
 value, improvidence, and haste in the execution of the contract 
 or the like, and yet if he file his bill on the ground of fraud 
 where none exists, the bill may be dismissed ; (t) but if a proper 
 
 (p) Ch. 20. [See Fox v. Mackreth, 2 968 ; Saunders v. Ld. Annesley, 2 Sch. & 
 
 Bro. C. C. (Perkins's ed.) 400, 425, note Lef. 101 ; Lansdown </. Lansdown, Mos. 
 
 (e), and cases cited ; S. C. 1 Lead. Cas. in 364 ; Leonard u. Leonard, 2 Bal. & Beat. 
 
 Eq. (3d Am. ed.) [92,] 172 cf seq. & notes.] 171 ; 2 Mer. 233. [See Smith v. Mackin, 
 
 ig) Binghamw. Bingham, 1 Ves. 126.(1) 4 Lansing (N. Y.), 41, 46.] 
 
 (5I) [If a grantor, in fulfilling an agree- (s) Evans v. Llewellyn, 2 Bro. C. C. 
 
 ment to conrey a parcel of land for a cer- 150 ; Curson v. Belworthy, 3 H. L. Cas. 
 
 tain price, is induced by fi-aud or misrep- 742 ; [Kerr F. & M. (1st Am. ed.) 143, 
 
 resentation, upon receipt of that price, to 144, 187, 190 ; Segur v. Tingley, 11 Conn, 
 
 execute a deed conveying another parcel 134; 1 Story Eq. Jur. § 251 ; Smith v. 
 
 also, he may recover the second parcel on a Mackin, 4 Lansing (N. Y.), 41, 46.] 
 
 writ of entry without paying or tendering (*) Curson v. Belworthy, 3 H. L. Cas. 
 
 back the consideration, or any part of it. 742 ; Marq. of Donegal v. Greg, 13 Ir. 
 
 Bartlett v. Bartlett, 100 Mass. 174.] Eq. R. 12; [Kerr F. & M. (1st Am. ed.) 
 
 (r) Stewart v. Stewart, 6 CI. & Fin. 382.] 
 
 (1) The facts, as they appear in Reg. Lib. 1748 A. fol. 154, are shortly these : John 
 Bingham devised an estate tail in certain lands to Daniel, his eldest son and heir, with 
 the reversion in fee to his (the testator's) own right heirs. Daniel left no issue, but 
 devised the estate to the plaintiff in fee. The bill stated that the latter being ignorant 
 of the law, and persuaded by the defendant and his scrivener and conveyancer that 
 Daniel had no power to make such devise, and being also subjected to the action of 
 ejectment, purchased the estate of the defendant for 8OZ., and it was conveyed to him 
 by lease and release. The bill was to have the money repaid with interest. The 
 defendant, by his answer, insisted that Daniel had no power to make such devise, but 
 if he had, then he insisted that the plaintiff should have been better advised before he 
 parted with his money, for that all purchases are to be at the peril of the purchaser. 
 
CH. V. § v.] OF RESCINDING s A CONTRACT. 375 
 
 case for relief is made out, the mere superaddition of an allega- 
 tion of fraud not 'proved wiU not prevent the plaintiff from 
 succeeding. (m) If fraud is charged as the ground of relief 
 claimed by a purchaser, and is not proved, it is not sufficient to 
 establish a fact charged as evidence of the fraud, which might 
 have entitled the purchaser to relief independently of fraud. (w) 
 
 15. In a case, where the sellers knew of a defect in the title to 
 a part of the estate, whicH was material to the enjoyment of the 
 rest, and did not disclose the fact to the purchaser, and it could 
 not be collected from the abstract, the purchaser was relieved 
 against the purchase in equity. The sellers were decreed to 
 repay the purchase money, with costs, and likewise all expenses 
 which the purchaser had been put to relative to the sale, together 
 with an allowance for any money he laid out in repairs during 
 the time he was in possession. (x) It was in this case laid down 
 that if one party makes a representation which he knows to be 
 false, but the falsehood of which the other party had no means 
 of knowing, the court will rescind the contract, (j/) It was ob- 
 served by Sir W. Grant, that whether it would be a fraud to 
 offer as good a title which the vendor knew to be defective, it 
 was not necessary to determine, but if he knows and conceals a 
 fact material to the validity of the title, he was not aware of any 
 principle on which relief could be refused to a purchaser. 
 
 16. Where a man sold and assigned a leasehold estate, believ- 
 ing and representing that there was only eight years to run, and 
 it afterwards appeared that a life was still in being, which did 
 not drop for some years, so that the purchaser obtained a longer 
 
 (m) E^pej-w. Lake, 10 Hare, 264 ; [Kerr title itself, et qu. ; Green v. Jenkins, 6 Jur. 
 
 F. & M. (1st Am. ed.) 383 ; Parr v. Jew- N. S. 515 ; Conybeare v. New Brunswick 
 
 ell, 1 K. & J. 671 ; Baker v. Bradley, 7 &c. Co. 1 De G., F. & J. 578. 
 
 De G., M. & G. 597 ; Traill v. Baring, 33 {y) 2 Swa. 287. [In Conybeare v. New 
 
 L. J. Ch. 521.] Brunswick &c. Co. 1 De G., F. & J. 596, 
 
 (t>) See and con.sider Price v. Berring- Turner L. J. referring to tbe statement in 
 
 ton, 3 Mac. & G. 486. the text said: "Now I tbink it is not 
 
 {x) Edwards v. M'Leay, Coo. 308 ; 2 going too far to say that when it is said, 
 Swa. 287 ; Pike v. Vigors, 2 Dm. & Wal. ' which the other party had no means of 
 258 ; Attwood v. Small, 6 CI. & Fin. 332 ; knowing,' it is meant ' had no sufficient 
 Gibson v. D'Este, 2 Yo. & Col. C. C. 542 ; means of knowing.' That I think, is the 
 1 H. L. Cas. 605; Sugd. H. of L. 614; sense in which the words ' means of know- 
 Price V. Berrington, 3 Mac. & G. 486; ing' are used in the passage to which I 
 Perkins u. Ede, 16 Bear. 193, as to the have referred."] 
 
 [246] 
 
376 OF RESCINDING A CONTRACT. [CH. V. § V. 
 
 term than he bargained for, yet the seller's bill for relief was dis- 
 missed with costs, (z) 
 
 17. Where a purchaser is entitled to be relieved on the ground 
 of concealment of a fact establishing the invalidity of the title, 
 it is not important that he has not been evicted ; if the rightful 
 owner is not barred by adverse possession, though he may never 
 assert his right, the purchaser cannot be compelled to remain 
 during the time to run in a state of uncertainty whether, on any 
 day during that period, he may not have his title im peached. (z^) 
 A court of equity is bound to relieve a purchaser from that state 
 of hazard into which the misrepresentation of the seller has 
 brought him. (a) And where the purchaser is entitled to be 
 relieved on account of misrepresentation, * he may elect not to 
 accept compensation, but to require the contract to be set aside 
 as void.(b) But this rule, of course, would not extend to the 
 common cases of compensation under contracts for sale. 
 
 18. Where a person sold a remainder expectant upon an estate 
 tail, and both parties considered that the remainder was unbarred, 
 and it afterwards appeared that a recovery had been suffered 
 before the contract, the purchaser was relieved against a bond 
 which he had given for the purchase money, and the seller was 
 compelled to repay the interest which he had received. (c) This 
 was a strong decision. The purchaser might have ascertained 
 the fact by search. The chief baron laid down some very gen- 
 eral propositions ; he said, " that if a person sell an estate, hav- 
 ing no interest in it at the time, and takes a bond for securing 
 the payment of the purchase money, that is certainly a fraud, 
 although both parties should be ignorant of it at the time. Sup- 
 pose I sell an estate innocently, which at the time is actually 
 swept away by a flood, without my knowledge of the fact, am 
 I to be allowed to receive 5,000Z. and interest, because the con- 
 veyance is executed, and a bond given for that sum as the pvix- 
 
 {z) Okill V. Wiitaker, 2 Phil. 338 ; 1 (b) Rawlins v. Wickham, 3 De G. & J- 
 
 De G. & Sm. 83. 304. 
 
 (2I) [See 2 Kent (Ilth ed.), 471 et seq. ; (c) Hitchcock u. Giddings, 4 Pri. 135 ; 
 
 Feemster v. May, 13 Sm. & M. 275 ; Wig- [see the remarks upon this case in Bates 
 
 gins V. McGimpsey, 13 Sm. & M. 532; v. Delavan, 5 Paige, 307 ;] see Strickland 
 
 Sage V. Ranney, 2 Wend. 534 ; Garvin v. v. Turner, 8 Ex. 208 ; but see 2 Cro. 196 ; 
 
 Cohen, 13 Rich. (S. C.) L. 153.] 2 Ld. Ray. 1118 ; 1 T. Rep. 755; 2 Free. 
 
 (a) Edwards v. M'Leay, Coo. 308. 106; post, ch. 13; ch. 7, post. 
 
 [247] 
 
CH. V. § v.] OF RESCINDING A CONTRACT. 377 
 
 chase money, when, in point of fact, I had not an inch of the 
 land so sold to sell?" Both these cases, when they arise, will, 
 it is apprehended, deserve great consideration before they are 
 decided in the purchaser's favor. (c^) The decision must be the 
 same, whether the money is actually paid or only secured. Lord 
 Eldon, in a later case, expressed considerable doubts as to the 
 doctrine in this case. In a case (d) of considerable difficulty a 
 creditor of one of several partners who was separately insolvent, 
 and non compos, and the firm was also insolvent, in order to 
 procure a title to the separate interest of such partner in a lease- 
 hold property, issued an execution against him, and sold by the 
 sheriff, by auction, the property, described as "the chattel inter- 
 est, if any, of F. N, in the leasehold premises at York Place." 
 The particulars also stated that the sheriff was informed that F. 
 N., with his son, was a partner in the firm of Frost and Norton 
 until the bankruptcy, and that the partners possessed the lease 
 of the business premises ; and that the sheriff was informed there 
 was a lien on the lease for 100/., and a condition was added that 
 the sheriff should not be liable even if it should turn out that 
 there was no interest at all to sell. The creditor intended him- 
 self to buy the lot, and did bid by his clerk up to 150Z., but it 
 was knocked down to a stranger at 151/. As, however, the pur- 
 chaser was not told that the accounts of the firm had been taken, 
 by which it appeared that the thing offered for sale could by no 
 possibility be worth one farthing, he was relieved *from the pur- 
 
 (ci) [If the subject matter of a sale be and she, in point of fact, be foundered, or 
 
 actually destroyed at the time, neither destroyed by wrecking, at that rery time, 
 
 party is bound thereby, although the fact the sale is void. Allen v. Hammond, 11 
 
 was unknown when the sale was made. Peters (TJ. S.), 63. So, also, if a person 
 
 Hitchcock V. Giddings,4 Price, 135 ; Allen should sell a house, proceeding upon the 
 
 V. Hammond, 11 Peters (U. S.), 63 ; Eice belief that it existed, when it was, in fact, 
 
 V. Dwight Manuf. Co. 2 Cush. 80, 86 ; 2 consumed by fire ; or should sell a horse 
 
 Kent (11th ed.), 468, 469; 1 Story Eq. Jur. believing him to be alive, when he was 
 
 §§ 143,143a,- Wilde J. in Thompson v. dead, no binding contract would arise. 
 
 Gould, 20 Pick. 139 ; Wood & Foster's Wilde J. in Thompson </. Gould, 20 Pick, 
 
 case, 1 Leon. 49 ; Grantham v. Hawley, 139 ; 2 Kent (11th ed.), 468, 469 ; 1 Story 
 
 Hob. 132; Hastie u. Couturier, 9 Exeh. Eq. Jur. § 143 a; Chitty Contr. (10th 
 
 102, overruling S. C. in 8 Exch. 40 ; Barr Am. ed.) 318, n. (e^) ; Morss v. Elmen- 
 
 V. Gibson, 3 M. & W. 390; Strickland v. dorf, 11 Paige, 277; Ridgway ..-. Sneyd, 
 
 Turner, 7 Exch. 208 ; Franklin v. Long, Kay, 635 ; Chapman u. Speller, 14 Q. B. 
 
 7 Gill & J. 407. As, if a ship at sea be 621 ; Basford v. Pearson, 9 Allen, 392.] 
 
 sold upon the supposition of her existence, {d) Smith v. Harrison, 26 L. J. N. S. 412- 
 
 i:248] 
 
378 ACTION OF DECEIT. ' [CH. V. § V. 
 
 chase with costs. The learned judge said that in such a case 
 as the sale of a mine which has been entirely worked out, the 
 purchaser may inform himself in some degree, but this purchaser 
 could not have any means of ascertaining the partnership ac- 
 counts. 
 
 19. Although, as we have seen, the treaty for a contract is 
 considered to be concluded by the terms of the contract itself, 
 and they cannot be added to at all at law by parol evidence, nor 
 even in equity, except as a defence, yet it is laid down that, 
 where a misrepresentation of a material fact not within the ob- 
 servation of the opposite party is made, the person making the 
 representation, knowing at the time that his statements are un- 
 true, under such circumstance an action may be maintained at 
 law for the purpose of recovering a compensation in damages 
 for the injury the party has sustained, notwithstanding-the con- 
 tract was in writing, and notwithstanding those particulars may 
 be no part of the terms of the written contract.(e) 
 
 20. Dobell V. Stevens (/) is an instance where a purchaser 
 was allowed to recover upon an action on the case for a deceit- 
 ful representation of the trade and income of a public-house, 
 although the purchase had. been concluded by the payment of 
 the purchase money and the assignment of the property. There 
 was negligence, too, on the part of the purchaser, for the seller's 
 books were in the house at the time of the treaty, and might 
 have been inspected by the purchaser, and they would have 
 shoWn the real state of the concern, but the purchaser did not 
 examine them. The court observed, that the purchaser relied 
 upon the assertion of the seller, and that was his inducement to 
 make the purchase. The representation was not of any matter 
 or quality pertaining to the thing sold, and therefore likely to be 
 mentioned in the conveyance, but was altogether collateral to 
 
 (e) To. 461, 462. of action. Attwood v. Small, 6 Cla. & 
 (/) 3 B. & C. 623 ; Pilmore v. Hood, Fin. 232 ; Gibson v. D'Este, 1 H. L. Cas. 
 5 Bin. N. C. 97 ; 6 Sco. 827; Mummery 605; [Pilmore w. Hood, uii s«/)ra ; Crocker 
 u. Paul, 1 Q. B. 316 ; Price v. Macaulay, v. Lewis, 3 Sumner, 1.] 
 2 De G., M. & G. 339. A false and fraud- (/i) [One who has been induced to pur- 
 ulent statement by the seller, communi- chase and take a conveyance of real estate 
 cated by an intended purchaser to a sub- described as " lot No. 66," in &c. by the 
 stituted purchaser; gives the latter a right false and fraudulent representations of the 
 
CH. V. § v.] ACTION OF DECEIT. 379 
 
 21. Where the purchaser has a right to rescind the contract, 
 he may bring an action for money had and received to recover 
 the purchase money.(g') 
 
 22. So he may bring an action for a fraudulent misrepresenta- 
 tion of the value by an agent. In Fuller v. ■Wilson,(A) the facts 
 were considered to be that the seller being the owner of a house 
 in the city, employed her attorney to put it in the course of being 
 sold by auction. He described it to the auctioneer as being- free 
 from rates and taxes, and it was bought by the plaintiff on that 
 representation for * more than its value. The action by the pur- 
 chaser was on the case for a fraudulent misrepresentation of the 
 value. But the seller had made no representation at all, and her 
 attorney who made it did not know it to be false. The king's 
 bench held that the action would lie, for whether there was moral 
 fraud or not, if the purchaser was actually deceived in his bar- 
 gain, the law will relieve him from it. The principal and his 
 agent are for this purpose identified; and the question is not 
 what was passing in the mind of either, but whether the pur- 
 chaser was in fact deceived by them or either of them. The 
 agent was not indeed instructed to make any representation 
 specifically on the subject of rates and taxes, but he could not 
 sell the house without describing it, and he described it untruly 
 in an essential point. By this false statement the plaintiff was 
 induced to part with his money to the defendant, who could not 
 be allowed to retain it. This decision wholly depended upon 
 
 vendor that the boundaries of that lot intentional fraud on the part of the vendor 
 
 were certain specified lines, including two or grantor ; and it is by no means limited 
 
 parcels, which in fact were not parcels of to cases, in which an action for deceit 
 
 the lot, may maintain an action on the would lie at common law. Spurr v. Bene- 
 
 case against the vendor for the damages diet, 99 Mass. 463. It was remarked in 
 
 accruing in consequence of such false this case that the mistake did not relate to 
 
 and fi-audulent representations. Newell v. the title obtained, but to the very subject 
 
 Horn, 45 N. H. 421. So a conveyance of matter of the contract ; and the fact that 
 
 land may be set aside on the ground of only a quitclaim deed was given was no 
 
 mistake where the vendor has undertaken bar to the plaintiffs equity. The plaintiff 
 
 to sell something which he did not own, and executed and tendered a reconveyance of 
 
 the estate embraced in the deed, although the estate before suit. See Kyle v. Kav- 
 
 owned by him, is not that which the ven- anagh, 103 Mass. 356.] 
 
 dee intended to buy and supposed that he (g) Greville v. Da Costa, Peak. Add. Ca. 
 
 was obtaining, by the conveyance. In 113; sup. a. i. 
 
 such a case the equity for a rescission of (h) 3 Ad. & El. N. S. 58. 
 the ti'ansaction does not depend upon any 
 
 [249] 
 
380 ACTION OF DECEIT. [CH. V. § V. 
 
 the false statement by the agent. But upon error in the ex- 
 chequer chamber upon a special verdict by consent, it appeared 
 that the purchaser was the auctioneer employed to sell the prop- 
 erty, that the seller referred her attorney for information to a 
 person who had a lien on the property, and who told him that 
 the rent was 1001. a year. The attorney made no inquiry about 
 rates and taxes, assuming that the tenant paid them, and he did 
 not know that they were paid by the seller. The seller herself 
 did not further interfere. The attorney stated to the auctioneer 
 that " the house was let at 100?. a year." The auctioneer in his 
 particulars stated the rent to be clear of rates and taxes. The 
 attorney did not correct this statement, as he thought it true ; 
 indeed it did not appear on the verdict when he saw the partic- 
 ulars. Upon these facts, therefore, it appeared, 1st, That the 
 purchaser himself was an agent, and inserted the false statement 
 without sufficient authority ; 2d, That the seller, the principal, 
 made no representations ; 3d, That the attorney made no mis- 
 representation, and believed the statement in the particulars to 
 be correct — yet it was held that the action would not lie.(t) It 
 was not doubted in the exchequer chamber that the representa- 
 tion made by the agent, if fraudulent, would have bound the 
 seller, and that a fraudulent concealment by him would have 
 equally bound her. (A) It was not found that the seller knowing 
 a material fact, kept it back.(Z) If she had knowingly referred 
 to an ignorant agent, that would have been fraud. (m) The court 
 considered the immediate cause of the injury sustained by the 
 purchaser to have arisen from his own misapprehension of the 
 *fact, and not from any misrepresentation or concealment on the 
 part of the defendant.(w) 
 
 23. Where the owner of a house which was not fit for a resi- 
 dence, in consequence of a nuisance in the one adjoining it, sold 
 by an agent who was ignorant of the nuisance, and upon inquiry 
 by an intended lessee told him that there was no objection to 
 
 (t) 3 Ad. & El. N. S. 68 ; Sugd. H. of (I) 3 Q. B. 74 ; M'Liire v. Ripley, 2 
 
 L. 644. Mac, & 6. 274. 
 
 [k] lb. p. 77 ; Early v. Garrett, 4 Man. (m) lb. p. 75 ; [ante, 2, & note.] 
 & Ey. 687 ; Stainbank v. Fernley, 9 Sim. («) 5 Q. B. 1009 ; [see ante,2, and cases 
 
 556 ; Watson v. Ld. Charlemont, 12 Q. B. in note (g).] 
 856. 
 
 [250] 
 
CH. V. § V.J ACTION OF DECEIT. 381 
 
 the house ; it was held that the lessee was bound, as there was 
 no misrepresentation by the owner, and the agent did not know 
 that his statement was false.(o) But this was strongly opposed 
 by Lord Abinger C. B., and is open to much observation. (o^) 
 It has been said that this case turned upon the plea that the de- 
 fendant was induced to enter into the agreement by means of 
 the fraud of the plaintiff, and the fraud was not made out, for 
 the plaintiff did not authorize the statement, and the agent made 
 it innocently. (jo) It is admitted, that if the principal instruct 
 his agent to make the false statement, this would be a fraud on 
 his part, although the agent might be ignorant of any deceit. 
 So it would be a fraud for a person conscious of objections to 
 his property to appoint an 'agent w^ho unconsciously may make 
 misrepresentations to the injury of third persons. But, it may 
 be asked, how is the motive to be proved? If an agent, in 
 such a case, although the principal be perfectly guiltless, know- 
 ingly commit a fraud in making a contract, the contract is 
 void.(9) (1) 
 
 (0) Cornfoot v. Fowke, 6 M. & W. 358 ; fraud of the agent, and relief will be given 
 Fuet V. Hill, 15 C. B. 207. to the other party to the transaction. The 
 
 (o^) [Bartlett v. Salmon, 6 De G., M. & principle is that fraud by an agent is 
 
 G. 40, note; 11 Am. Law Eeg. (N. S.) fraud by the principal ; that the principal 
 
 149, 150.] should be bound by the wrong or miscon- 
 
 (p) Per L. C. Cranworth in National duct of his own agent, rather than that-an- ■ 
 
 Exchange Co. v. Drew, D. P.,2 Macq. 108, sgast. should suffer ; that the principal 
 
 see p. 144; 6 De G., M. & G. 39, 40 ; Re cannot take the benefits of a trade by his 
 
 Eoyal British Bank, Brockwell's case, 4 agent without taking the burdens; and 
 
 Drew. 205; Nicol's case, 3 De G. & J. finally, that the principal cannot adopt 
 
 387 ; In re North Shields &c. Co. 4 K. & part and repudiate the rest, where the 
 
 J. 688 ; Ee Nat. &c. Fuel Co. 4 Drew, transaction is a unit, and he claims the 
 
 529; Barry ti. Croskey, 2 J. & H. 1. benefit of the whole. Woodbury J. in 
 
 [q) Cornfoot ». Fowke, 6 M. & W. 358. Ferson v. Sanger, 1 Wood. & M. 147 ; 
 
 [Where an agent makes a false representa- Warner v. Daniels, 1 Wood. & M. 90 ; 
 
 tion, or in any other manner commits a Brooke v. Berry, 2 Gill, 83 ; Fitzsimmons 
 
 fraud, in a purchase or sale, "with or with- v. Joslin, 21 Vt. 129 ; Kibbe v. Hamilton 
 
 out the privity or knowledge or assent of Ins. Co. 11 Gray, 163; 1 Story Eq. Jur. 
 
 his principal, and the principal adopts the § 193 a; Veazie v. Williams, 8 How. (U. 
 
 bargain and attempts to reap an adv^n- S.) 134; 11 Am. Law Keg. (N. S.) 149, 
 
 tage from it, he will be held bound by the 1 50.] 
 
 (1) It was observed by one of the law lords in The National Exchange Co. v. Drew, 
 2 Macq. 145, that if there had been no allegation of fraud, but it had been put simply 
 upon misrepresentatioQ, the judgment admits that if a principal, with knowledge of a 
 fact which was material to the value of the property, employed an agent whom he knew 
 to be ignorant of the fact for the purpose of concealment, he could not avail himself of 
 
382 WHERE EIGHT TO RESCIND IS LOST. [CH. V. § V. 
 
 24. In a recent case in the exchequer,(r) the simple question 
 was whether a principal who had had the benefit of a contract 
 * obtained by the fraud of his agent, was liable in an action of 
 deceit which charged him with the fraud, although be himself 
 was innocent of all fraud, and upon this questjon the judges 
 were equally divided. The agent had made false representations 
 upon the sale of a log of wood. For the liability of the princi- 
 pal it was said that he could not sue upon a contract in itself 
 valid, but preceded by, and brought about by, fraudulent repre- 
 sentations of the agent ; and it was considered to be contrary to 
 principle that the liability should cease by the execution of the 
 contract when the principal had adopted his agent's contract, 
 and derived the full benefit of it. T^he statements of the agent, 
 which are involved in the contract as its foundation or induce- 
 ment, are in law the statements of the principal. On the other , 
 hand, it was held that the purchaser's remedy was against the 
 agent, and not against the principal, for the latter committed no 
 actual fraud, nor gave any authority for its commission, and did 
 not ratify or adopt it. It was said to be a mistake that the prin- 
 cipal was availing himself of the agent's fraud ; he merely took 
 the money for which he had authorized the property to be sold. 
 The authorities against this view were treated as mere dicta. 
 
 25. Although in equity a party may be entitled to get rid of a 
 contract founded on fraudulent representations, (s) still cases may 
 occur where a purchaser might recover damages at law for a 
 false representation, and yet be prevented by his own conduct 
 from rescinding the contract in equity, and the relief in equity 
 can only be to rescind the contract. Damages or compensation 
 
 (r) Udell V. Atherton, 7 H. & N. 172. (s) Yo. 402, sup. 
 
 that concealment. But further he shonld say, that if misrepresentation only and not 
 fraud had been alleged, and the fact that a man knowing the serious nuisance affecting 
 his house takes care himself not to make the contract, but leaves it to an agent whom 
 he has no reason to suppose was aware of the fact, and if in the course of the treaty the 
 agent being asked if such a fact existed, answers positively, no, and the contract is 
 therefore executed in silence upon this point, he should himself decide that, although 
 the representation was not fraudulent — the agent not knowing that it was false — yet 
 that as it in fact was false, and false to the knowledge of the principal, it ought to 
 vitiate the contract. When upon a matter so material to the value of the property he 
 left it to his agent to make the representation, without infonning him of so important 
 a fact within his own/ knowledge, the agent making a false representation of that fact 
 would bind the principal, and thus impeach the validitv of the contract. 
 
 [251] 
 
CH. V. § v.] WHEEE EIGHT TO RESCIND IS LOST. 
 
 383 
 
 must be sought at law. In equity, after the contract is executed 
 by payment of the money and a conveyance, a bill cannot be 
 filed for a compensation. (i) Thus the jurisdiction stood before 
 the recent legislation, which, as we have seen, has authorized 
 courts of equity to give damages in certain cases, and courts of 
 law to some extent to enToice equitable rights, and to admit 
 equitable defences. (m) 
 
 26. Generally speaking, a purchaser after a conveyance has no 
 remedy, except upon the covenants he has obtained, although 
 evicted for want of title ; and however fatal the defect of title 
 may be, if there is no fraudulent concealment on the part of the 
 seller, the purchaser's only remedy is under the covenants. (a;) 
 
 (t) Lenham v. May, 13 Pri. 749 ; Leuty 
 V. Hillas, 2 De G. & J. HO ; Monypenny 
 u. Monypenny, 4 K. & J. 174. 
 (m) Supra ; [ante, 233, & note.] 
 (x) Ch. 13, post; [post, 549, & note; 
 Earle v. De Witt, 6 Allen, 520 ; Joyce v. 
 Ryan, 4 Greenl. 101 ; Emerson v. County 
 of Washington, 9 Greenl. 88; Soper v. 
 Stevens, 14 Maine, 133; Gates v. Win- 
 slow, 1 Mass. 65 ; Kerr v. Kitclien, 7 Barr, 
 486 ; Higby v. Smith, 1 D. Chip. 409. 
 But where in an action to recorer the 
 price of land sold and conveyed to the de- 
 fendant, it appeared that the land con- 
 veyed by the deed was not the land which 
 the defendant bargained ibr and agreed to 
 purchase, it was ruled that, if the defend- 
 ant was negotiating for one thing and the 
 plaintiff was selling another, and their 
 minds did not agree as to the subject mat- 
 ter of the sale, there would be no contract 
 by which the defendant would be bound, 
 though there was no fraud on the part 
 of the plaintiff. Mistake alone in such a 
 case was held to be a good defence. Kyle 
 V. Kavanagh, 103 Mass. 356. So where 
 land was conveyed by a quitclaim deed 
 without covenants of title or warranty, 
 and the land proved to be a different par- 
 cel from that bargained for, and supposed 
 by both parties to be embraced in the 
 deed, the vendee having executed and ten- 
 dered a reconveyance ' of .the estate, was 
 held entitled to a perpetual injunction on 
 
 the vendor against prosecuting an action 
 at law pending upon the njte given for 
 the purchase money. Spurr v. Benedict, 
 99 Mass. 463. There are also cases in 
 which the purchase money has been recov- 
 ered back where it was given for the pur- 
 chase of land that had no existence, though 
 the deed was one of quitclaim. Gardner 
 V. Mayor &c. of Troy, 26 Barb. 423 ; Mar- 
 tin V. McCormick, 4 Selden, 331. So 
 where the title fails for want of author- 
 ity in the person who makes the deed to 
 act in the capacity in which he professes 
 to act, the consideration may be recovered 
 back. See Shearer v. Fowler, 7 Mass. 31 ; 
 Williams v. Eeed, 5 Pick. 480; Dill v. 
 Wareham, 7 Met. 438; Holden v. Curtis, 
 2 N. H. 61 ; Earle v. Bickford, 6 Allen, 
 549, 550. In Pennsylvania, in the case of 
 Cross V. Noble, 67 Penn. St. 74, it was 
 held thaj;, in an action to recover payment 
 of the price agreed to be paid on a sale of 
 land, the purchaser may show that the 
 consideration has failed in whole or in 
 part. Sharswood J. said : " In the lead- 
 ing case of Steinhauer v. Witman, 1 Serg. 
 & E. 438, there was only a covenant of 
 special warranty, and the defence set up to 
 the recovery of the purchase money was 
 eviction under a paramount title not within 
 the terms of the covenant, and therefore 
 the case was the same as if there had been 
 no covenant at all ; and Mr. Justice Ken- 
 nedy, in Roland v. Miller, 3 Watts & S. 
 
384 RIGHT TO RESCIND LOST BY CONFIRMATION, ETC. [CH. V. § V. 
 
 Where by mistake a part of one lot was conveyed to the pur- 
 chaser of another, and the latter was held to be a trustee for the 
 other party, but he asserted that he had himself bought the part 
 in dispute, and after the decree against him brought an action 
 against the vendor on the covenant in the conveyance to which 
 the equitable defence was made, the* court refused to stop the 
 action. (y) 
 
 *27. A right to rescind a contract may, like most other rights, 
 be lost by acquiescence or relinquished by confirmation. (2^) A 
 party may, of course, by his conduct abandon or reject an agree- 
 ment into which he has entered, and so prevent his claiming the 
 benefit of it.(fl) 
 
 88. And a seller, having a right to rescind a contract if inter- 
 est on the purchase money be not duly paid, may of course bind 
 
 390, has stated the rule as it has always 
 been undei-stood and acted upon in this 
 State : ' The doctrine of Steinhaner v. 
 Witman is, that if the consideration 
 money has not been paid, the purchaser, 
 unless it plainly appear that he has 
 agreed to run the risk of the title, may de- 
 fend himself in an action for the purchase 
 money, by showing that the title was de- 
 fective, either in whole or in part, whether 
 there was a covenant of general warranty 
 or of right to convey or quiet enjoyment 
 by the vendor, or not, and whether the ven- 
 dor has executed a deed of conveyance for 
 the premises or not.' " See Lloyd v. Far- 
 rell, 48 Penn. St. 73 ; Weakland v. Hoff- 
 man, 50 Penn. St. 513 ; Herrod o. Black- 
 bum, 56 Penn. St. 103 ; Dunkel v. Hunter, 
 61 Penn. St. 382.] 
 
 (y) Leuty v. Hillas, 2 De G. & J. 113. 
 
 (2) Attwood 0. Small, 6 CI. & Fin. 
 232, 424, 432; Skottowe V. "Williams, 7 
 Jur. N. S. 665 ; [see Fonbl. Eq. b. 1, ch. 
 2, § 13, & notes; 1 Story Eq. Jur. § 345; 
 Gwynne v. Heaton, 1 Bro. C. C. (Per- 
 kins's ed.) 3, and cases in note (t) ; Sadler 
 V. Robinson, 2 Stewart, 520; Wright v. 
 Vanderplank, 8 De G., M. & G. 133 ; Jar- 
 ratt V. Aldam, L. R. 9 Eq. 463 ; Crosier 
 V. Acer, 7 Paige, 137 ; Ayres v. Mitch- 
 ell, 3 Sm. & M. 383 ; KnuckoUs v. Lea, 
 10 Humph. 577 ; McNaughton v. Par- 
 
 tridge, 11 Ohio, 223 ; Kerr P. & M. (1st 
 Am. ed.), 299. Where a party intends to 
 abandon or rescind a contract on the 
 ground of a violation of it by the other 
 party, he must do it promptly and de- 
 cidedly, on the first information of such 
 breach. If he negotiates with the other 
 party after knowledge of the breach, it is 
 a waiver of his right to rescind the con- 
 tract. Lawrence v. Dale, 3 John. Ch. 23 ; 
 M'Neven v. Livingston, 17 John. 437 ; 
 Dill V. Camp, 22 Ala. 249 ; Taymon v. 
 Mitchell, 1 Md. -Ch. 496; Clement v. 
 Smith, 9 Gill, 156 ; McCulloch v. Scott, 
 13 B. Mon. 172. A party cannot claim a 
 rescission of a contract for fraud, after en- 
 tering into new stipulations concerning it, 
 with a full knowledge of the fraudulent 
 circumstances. Sadler v. Robinson, 2 
 Stewart, 520 ; see, also, Royster v. Shack- 
 elford, 5 Litt. 229; Vail v. Nelson, 4 
 Rand. 478; Mayo v. Purcell, 3 Munf. 
 243; Stockton u. Cook, 3 Munf. 68; 
 Orraes v. Beadel, 2 De G., F. & J. 336 ; 
 Kerr F. & M. (1st Am. ed.) 299 ; Pearsall 
 V. Chapin, 44 Penn. St. 9; Negley v. 
 Lindsay, 67 Penn. St. 227, 228; Jones 
 V. fimery, 40 N. H. 348 ; Mason v. Bovet, 
 I Denio, 69 ; Wheaton v. Baker, 14 Barb. 
 594.] 
 
 (a) Morris v. Timmins, 1 Beav. 411. 
 
 [252] 
 
CH. V. § V.J EIGHT TO EESCIND LOST BY* CONFIRMATION, ETC. 385 
 
 his right by enlarging the time, upon an advance of the interest 
 by a third party (6) 
 
 29. So if there be a condition that the purchaser shall state 
 his objections to the title within a limited period, and that, if the 
 seller shall not be able or willing to remove them, the seller may 
 rescind the contract ; (1) if the seller expresses a willingness to 
 remove the objections, he makes his option, and is bound not to 
 take advantage of the condition.(c) 
 
 30. If a party with full information freely confirms a contract, 
 which he was at liberty to rescind, he will be bound by it, and 
 no new consideration is requisite to give validity to the confirma- 
 tion. (c2) 
 
 31. If a purchaser, instead of repudiating the transaction, deal 
 with the property as his own, he is bound, although he after- 
 wards discover a new circumstance of fraud, for that can be con- 
 sidered only as strengthening the evidence of the original fraud, 
 and it cannot revive the right of repudiation which has been 
 once waived, (e) 
 
 32. But where the contract itself is founded in fraud or op- 
 pression, with which the party is from the first aware, acquies- 
 cence whilst he is under the same difficulty and embarrassment 
 will not of itself bar his right to relief. (/) Acquiescence imports 
 
 (6) See Dawson v. Yates, 1 Be'av. 301. as against the grantor's prior deed exe- 
 
 (c) Tanner v. Smith, 10 Sim. 410; cuted while he was sane, and recorded 
 
 Cutts V. Thodey, 13 Sim. 206. after the formal execution but before the 
 
 {d) Chesterfield v. Janssen, 2 Ves. 146, ratification of the second deed. Bond v. 
 
 149, 152, 158, 159; Eoche v. O'Brien, 1 Bond, 7 Allen, 1.] 
 
 Bal. & Beat. 355 ; Cole v. Oibbons, 3 P. (e) Campbell v. Fleming, 1 Ad. & El. 
 
 Wms. 290 ; Morse v. Royal, 12 Vcs. 355 ; 40. 
 
 Sandeman v. Mackensie, 1 J. &H. 613; (/) Wood v. Downes, 18 Ves. 130; 
 
 [Negley v. Xindsay, 67 Penn. St. 217. D'Arcy v. D'Arcy, 1 Hay. & Jo. 115; 
 
 But the ratification of a deed executed 12 Ves. 373, 374; [1 Story Eq. Jur. § 
 
 during insanity will not make it effectual 345 ; Savery v. King, 5 H. L. Cas. 627 
 
 (1) Upon an appeal in Tanner v. Smith, where the point was not decided. Lord 
 Cottenham observed upon this condition, " Whether this objection is to be understood 
 to mean an objection to the original abstract, or whether to a subsequent abstract, the 
 vendor has reserved to himself the power to construe it as he pleases ; whether he is 
 unwilling or unable to remove the objections, he shall be able to annul the contract, 
 and the purchaser shall not have the deposit. Anything more unjust there coiUfi not be. 
 The vice chancellor says the objections must be considered as the objections to the first 
 abstract." The lord chancellor allowed the purchaser to proceed with an action to 
 recover the deposit. 4 Jur. 310. 
 
 VOL. I. 25 
 
386 
 
 WHAT IS NECESSARY TO A VALID CONFIRMATION. [CH. V. § V. 
 
 full knowledge ; for a person cannot be bound by acquiescence 
 unless he has been fully informed of his rights, and of all the 
 material facts and circumstances of the case.(g-) 
 
 33. Where a purchase was deemed fraudulent, and the seller 
 was * considered to have never been fully apprised of his rights, 
 the stopping a suit in chancery and a release thereupon given 
 were considered a double hatching the fraud, and the purchase, 
 notwithstanding the acts of confirmation, was set aside even 
 after the seller's death.(A) The judges said there was no instance 
 where the original contract was fraudulent, that any subsequent 
 act could purge it. But this carries the rule too far, although a 
 contract not affected by fraud may be held to be confirmed by 
 an act which might not be deemed a confirmation of a really 
 fraudulent transaction. (i) 
 
 34. And even where a third person (who was tenant for life of 
 the estate) bought a remainder subject to a contingency at its 
 full value, of a purchaser who had obtained it fraudulently at a 
 gross undervalue, to the knowledge of the last purchaser, the 
 original seller, who was a pauper and unprotected, was relieved, 
 although he improvidently joined in the second saIe.(A;) 
 
 35. To give validity to a confirmation of a voidable convey- 
 ance, the party confirming must not be ignorant of bis right, nor 
 of course must his right be concealed from him by the person to 
 
 Kerr F. & M. (1st Am. ed.) 297, and cases Cockerel!, 10 H. L. Cas. 229 ; Bullock v. 
 
 cited.] Downes, 9 H. L. Cas. 1 ; Kerr F. & M. 
 
 (j) Life Association of Scotland v. (1st Am. ed.) 297, and cases cited; Cum- 
 
 Siddall, 7 Jur. N. S. 785, [3 De G., berland Coal Co. u. Sherman, 30 Barb. 
 
 F. & J. 73 ; Kerr F. & M. (1st Am. ed.) 533. The proof of knowledge lies on the 
 
 300 ; Kandall v. Errington, 10 Ves. 428 ; party who alleges acquiescence, and sets 
 
 Spackman's case, 34 L. J. Ch. 321, 326 ; it up as a defence. Bennett v. CoUey, 2 
 
 Stanhope's case, L. E. 1 Ch. Ap. 161 ; M. & K. 225 ; Burrows v. Walls, 5 De G., 
 
 Stewart's case, L. E. 1 Ch. Ap. 414; Ju- M. & 6. 233 ; Life Association of Scot- 
 
 niata Bank v. Brown, 5 Serg. & R. 234. land v. Siddall, 3 De G., F. & J. 58 ; Wall 
 
 The court will not hold the contract to be v. Cockerell, 10 H. L. Cas. 229 ; Spack- 
 
 ratified where the delusion has been kept man's case, 34 L. J. Ch. 329.] 
 
 up. Savery v. King, 5 H. L. Cas. 627 ; (A) Baugh v. Price, 1 Wils. 320; [Neg- 
 
 see Salmon v. Cutts, 4 De G. & Sm. 132 ; ley v. Lindsay, 67 Penn. St. 217.] 
 
 Hoffman Steam Coal Co. v. Cumberland [i) See De Montmorency v. Devereux, 
 
 Coal Co. 16 Md. 456; Wright v. Vander- 7 CI. & Fin. 225; [Negley v. Lindsay, 67 
 
 plank, 8 De G., M. & G. 133 ; Cumber- Penn. St. 217.] 
 
 land Coal Co. t. Sherman, 20 Md. 117; {k) Consider Addis u. Campbell, 4 Beav. 
 
 Eyre v. M'Donnell, 15 Ir. Ch. 534 ; Ber- 401. 
 doe V. Dawson, 34 Beav. 603 ; Wall v. 
 
 [253] 
 
CH. V. § v.] 
 
 EEMEDY BARKED BY TIME, ETC. 
 
 -387 
 
 whom the confirmation is made.(/) He must know the transac- 
 tion to be impeachable that he is about to confirm, and with this 
 knowledge and under no influence he must spontaneously exe- 
 cute the deed.(m) And he must be fully aware, not only of the 
 fact upon which the defect of title depends, but of the conse- 
 quences in point of law ; («) and he must in fact be a free agent, 
 not under 'the influence of the previous transaction. (o) 
 
 36. Time might of itself bar the remedy,(/>) even where the 
 old statutes of limitation afforded no ha.r.(p^) 
 
 [I) Cann v. Cann, 1 P. Wms. 723 ; Sa- 
 very u. King, 5 H. L. Cas. 627 ; [Kerr 
 F. & M. (1st Am. ed.) 297, and cases 
 cited ; Smith v. Kay, 8 H. L. Cas. 750 ; 
 Wall u. Cockerell, 10 H. L. Cas. 529; 
 Potts V. Surr, 34 Beav. 543; Bond v. 
 Bond, 7 Allen, 1.] 
 
 (m) Dunbar u. Tredennick, 2 Bal. & 
 Beat. 317. Perhaps relief ought to have 
 been given in Roche v, O'Brien, 1 Bal. & 
 Beat. 330; Murray v. Palmer, 2 Sch. & 
 Lef. 486. 
 
 (m) Cockerell v. Cholmcley, 1 Rus. & 
 My. 425. [In order to make a valid 
 confirmation a person must be aware that 
 the act he is doing will have the effect of 
 confirming an impeachable transaction. 
 Montmorency v. Devereux, 7 CI. & Fin. 
 188 ; Salmon v. Cutts, 4 Dp G. & S. 129 ; 
 Waters v. Thorn, 22 Beav. 547 ; Mussel- 
 man V. Eshleman, 10 Barr, 394 ; Painter 
 V. Henderson, 7 Barr, 48 ; Moore v. Hil- 
 ton, 12 Leigh, 2 ; Williams v. Marshall, 
 4 Gill & J. 377 ; Scott v. Freeland, 7 Sm. 
 & M. 410; Harrington v. Brown, 5 Pick. 
 519 ; Baker v. Bradley, 7 De 6., M. & G. 
 626 ; 1 Lead. Cas. in Bq. (3d Am. ed.) 
 [141,1 [142,] 207, 208, and cases cited; 
 Wright V. Vanderplank, 8 De G., M. & 
 G. 133 ; Stump v. Gaby, 2 De G., M. & G. 
 623, n. (1), and cases ; Cherry v. Newsom, 
 3 Yerger, 369 ; Cumberland Coal Co. v. 
 Sherman, 20 Md. 117.] 
 
 (o) Crowe v. Ballard, 3 Bro. C. C. 117 ; 
 see Scott v. Davis, 4 My. & Cr. 91 ; Wood 
 V. Downes, 18 Ves. 120; King ;;. Savery, 
 1 Sm. & Gif. 271 ; affd in D..P. 1856; 5 
 
 H. L. Cas. 627 ; Brereton v. Barry, 11 Ir. 
 Ch. Rep. 109. 
 
 (p) Medlicot v. O'Donel, 1 Bal. & Beat. 
 156 ; Morse v. Royal, 12 Ves. 374. 
 
 (pi) [Length of time, short of the stat- 
 ute of limitations, is sometimes a bar ; but 
 not if fraud exists, nor if the delay is ac- 
 counted for, nor if such a course would 
 work injustice. Warner v. Daniels, 1 
 Wood. & M. 90 ; see Person v. Sanger, 
 Davies's Rep. 252. A man who seeks the 
 aid of a court of equity must assert his 
 claim with reasonable diligence. Smith 
 V. Clay, cited 3 Bro. C. C. 639 ; Jones v. 
 Tuberville, 2 Ves. jr. 11; Underwood v. 
 Lord Courtown, 2 Sch. & Lef 71 ; Hickes 
 u. Cooke, 4 Dow, 16 ; Chalmer v. Bradley, 
 1 J. & W. 59 ; Walford v. Adie, 5 Hare, 
 112; Piatt v. Vattier, 9 Peters (U. S.), 
 405 ; S. C. 1 McLean, 40 ; Lupton v. Jan- 
 ney, 13 Peters (U. S.), 381 ; Wade v. Pet- 
 tiboue, 11 Ohio, 557 ; Johnson v. Johnson, 
 
 5 Ala. 90 ; Graham v. Davidson, 2 Dev. 
 
 6 Bat. Eq. 155 ; Badger u. Badger, 2 Wal- 
 lace, 87 ; Coleman v. Lyne, 4 Rand. 454 ; 
 Eastman v. Plumer, 46 N. H. 464 ; Walker 
 V. Emerson, 20 Texas, 706. It is a rule of 
 equity not to encourage stale demands, or 
 give relief to parties who sleep on their 
 rights. The rule is founded on the diffi- 
 culty of procuring full evidence of the 
 character and particulars of remote trans- 
 actions, and is independent of the statute 
 of limitations. Hovenden o. Annesley, 2 
 Sch. & Lef 630 ; Beckford u. Wade, 17 
 Ves. 87 ; Chalmer v. Bradley, 1 J. & W. 
 63 ; Prevost v. Gratz, 6 Wheat. 481 ; Ran- 
 dolph V. Ware, 3 Cranch, 503 ; Ludlow v , 
 
388 
 
 EIGHT TO EESCIND BAERED BY TIME. [CH, V. § V, 
 
 37. If a purchaser of a mine in which there is a fault which 
 has been concealed, is let into possession, and must immediately 
 
 Cooper, 13 Ohio, 552 ; Shearin v. Eaton, 
 2 Ired. Bq. 282 ; Weatherford v. Tate, 2 
 Stroth. Eq. 27 ; Rancliffe v. Parkins, 6 
 Dow, U9, 232 ; Whalley v. Whalley, 3 
 Bligh, 17 ; Browne v. Cross, 14 Bear. 105 ; 
 Hartwell v. Colvin, 16 Bear. 140; Beaden 
 V. King, 9 Hare, 552 ; Knight v. Bowyer, 
 2 De 6. & J. 421, 443 ; Gresley v. Mous- 
 ley, 4 De G. & J. 78 ; Skottowe v. Will- 
 iams, 3 De G., F. & J. 535. In the case 
 of legal titles and legal demands, courts 
 of equity act in obedience to the statute 
 of limitations. Hovenden v. Annesley, 
 2 Sch. & Lef. 631 ; Poley v. Hill, 1 
 Ph. 399; Peyton v. Stith, 5 Peters (U. 
 S.), 485 ; Humbert o. Trinity Church, 7 
 Paige, 195; Hawley v. Cramer, 4 Cowen, 
 717. Where a bar exists by statute, 
 equity will in analogous cases, consider 
 the equitable rights as bound by the same 
 limitations. Smith w. Clay, cited 3 Bro. 
 C. C. 639 ; HoTcnden v. Annesley, 2 Sch. 
 & Lef. 607, 632 ; Whalley v. Whalley, 3 
 Bligh, 17; Duke of Leeds v. Lord Am- 
 herst, 2 Ph. 117 ; Michaud v. Girod, 4 
 How. (U. S.) 503 ; Miller v. Mclntyre, 6 
 Peters ("U. S.), 61 ; Perkins v. Cartwell, 4 
 Harring. 270 ; but in cases where the 
 analogies do not apply, a court of equity 
 is governed by its own inherent doctrine 
 not to encourage stale demands. Parties 
 who would have had the clearest title to 
 relief, had they come in reasonable time, 
 may deprive themselves of their equity by 
 a delay which falls short of the period 
 fixed by the statutes. Oliver v. Court, 8 
 Price, 167, 168; Gregory v. Gregory, 
 Coop. 201 ; Hickes v. Cooke, 4 Dow, 16 ; 
 Champion o. Bigby, 9 L. J. Ch. N. S. 
 211 ; Roberts «. Tunstall, 4 Hare, 257 ; 
 Browne v. Cross, 14 Beav. 106 ; Hartwell 
 V. Colvin, 16 Beav. 140; Wright v. Van- 
 derplank, 8 De G., M. & G. 133; Gresley 
 o. Mousley, 4 De G. & J. 78 ; Lyddon v. 
 Moss, 4 De G. & J. 104; Clegg v. Ed- 
 mondson, 8 De G., M. & G. 810 ; Went- 
 worth V. Lloyd, 32 Beav. 467. Lapse of 
 
 time, when it does not operate as a posi- 
 tive or statutory bar, operates in equity as 
 an evidence of assent, acquiescence, or 
 waiver. Pickering v. Lord Stamford, 2 
 Ves. jr. 583 ; Gregory v. Gregory, Coop. 
 201 ; Whalley v. Whalley, 3 Bhgh, 1, 13 ; 
 Roberts v. Tunstall, 4 Hare, 257 ; Life 
 Association of Scotland v. Liddall, 3 De 
 G., F. & J. 73 ; 1 Dan. Ch. Pr. (4th Am. 
 ed.) 560. The two propositions of bar by 
 length of time, and bar by acquiescence, 
 are not distinct propositions. They con- 
 stitute but one proposition. Life Associa- 
 tion of Scotland v. Liddall, 3 De G., F. 
 & J. 73. Acquiescence, however, as dis- 
 tinguished from delay, imports conduct. 
 Lyddon v. Moss, 4 De G. & J. 104. What 
 is a reasonable time, during which a trans- 
 action may be allowed to stand, cannot 
 well be defined so as to establish any gen- 
 eral rule, and must in a great measure de- 
 pend upon the exercise of the sound dis- 
 cretion of the court under all the circum- 
 stances of each case. Gresley v. Mousley, 
 4 De G. & J. 78 ; Hawley v. Cramer, 4 
 Cowen, 717; Banks v. Judah, 8 Conn. 
 145; Hallett v. Collins, 10 How. (U. S.) 
 174; Michaud a. Girod, 4 How. (U. S.) 
 503; Boon v. Chiles, 10 Peters (U. S.), 
 177 ; Aylett v. King, 11 Leigh, 486; Obert 
 V. Obert, 1 Beasley (N. J.), 423. The 
 question of delay may be much affected 
 by reference to the nature of the property 
 (Hatch t. Hatch, 9 Ves. 292; Wright t. 
 Vanderplank, 8 De G., M. & G. 133; 
 CJegg c. Edmondson, 8 De G., M. & G. 
 807 ; Ernest v. Vivian, 33 L. J. Ch. 513), 
 or to a change of circumstances as to the 
 character or value of the property, or the 
 right* and liabilities of others in the inter- 
 mediate period. Hickes v. Cooke, 4 Dow, 
 1 6 ; Wentworth u. Lloyd, 32 Beav. 467 ; 
 Ridgway v. Newstead, 3 De G., F. & J. 
 474; Wagner v. Baird, 7 How. (U. S.) 
 234 ; Smith v. Thompson, 7 B. Mon. 304 ; 
 Carroll v. Rice, 1 Walk. Ch. 373 ; McDon- 
 ald V. Neilson, 2 Cowen, 139; Fersou i;. 
 
CH. V. § v.] EIGHT TO RESCIND BAERED BY TIME. 
 
 389 
 
 have known of the circumstances connected with the fault, it 
 would be too late, at the expiration of six months, on that 
 ground, to file a bill for the purpose of setting aside the con- 
 tract. (9) 
 
 38. And now suits in equity are expressly confined to the 
 period allowed for actions at law,(r) although in the case of a 
 concealed *fraud the right to relief is deemed to first accrue at 
 the time when the fraud shall, or, with reasonable diligence. 
 
 Sanger, Davies's Eep. 252. If there be 
 laches on both sides, the ordinary rules as 
 to delay and acquiescence may not apply. 
 Hicks V. Morant, 2 Dow & CI. 414. Time 
 does not begin to run against a party so 
 as to bar his remedy until he has full in- 
 formation of his rights and injuries (Salk- 
 eld V. Vernon, 1 Eden, 64 ; Blennerhasset 
 V. Day, 2 Bal. &Beat. 104, 119 ; Whalley v. 
 Whalley, 3 Bligh, 1 ; Trerelyan v. Char- 
 ter, 4 L. J. Ch. N. S. 209; Charter v. 
 Trevelyan, 11 CI. & Fin. 714; Browne v. 
 Cross, 14 Beav. 106 ; Parker v. Bloxam, 
 20 Beav. 295; Savery v. King, 5 H. L. 
 Cas. 627 ; Munson v. Hallowell, 27 Texas, 
 457 ; Tate v. Tate, 1 Dev. & Bat. Eq. 22 ; 
 Croft V. Arthur, 3 Desaus. 223), or has in 
 his possession the means of knowledge 
 (Baker v. Read, 3 W. E. 118J, or, at least, 
 has sufficient notice to put him on inquiry 
 (Clani-icard v. Henning, 30 Beav. 175; 
 Spackman's case, 34 L. J. Ch. 321, 326 ; 
 Stanhope's case, L. E. 1 Ch. Ap. 161; 
 Doggett V. Emerson, 3 Story, 733 ; Shan- 
 non V. White, 6 Rich. Eq. 96 ; Baekner v. 
 Calcote, 28 Miss. 432 ; Smith v. Talbot, 
 18 Texas, 774; Smith v. Fly, 24 Texas, 
 345; Edmonds i). Goodwin, 28 Geo. 38), 
 and, in cases where the transaction . has 
 taken place under pressure, or the exercise 
 of undue influence, is emancipated from 
 the dominion under which he acted at the 
 date of the transaction. Gregory v. Greg- 
 ory, Coop. 201 ; Dawson v. Massey, 1 Bal. 
 & Beat. 209 ; Addis u. Campbell, 4 Beav. 
 401 ; Champion u. Eigby, 9 L. J. N. S. 
 211 ; Bellamy v. Sabine, 2 Ph. 425; Sharp 
 V. Leach, 31 Beav. 491.] 
 
 (5) Small V. Attwood, Yo. 503 ; 6 CI. 
 & Fin. 232, 357 ; Lovell v. Hicks, 2 Yo. & 
 Col. 46 ; Haywood v. Cope, 25 Beav. 140. 
 [Where a bill in equity was brought to set 
 aside a sale of certain timber lands seven 
 years after the purchase thereof, during 
 which time the agents of the purchasers 
 had made two explorations of the land, 
 and had caused a large quantity of timber 
 to be cut therefi'om ; it was held that 
 the purchasers had full knowledge or the 
 means of knowledge, of the condition of 
 the lands, through their agent, which they 
 were bound to exercise, before cutting 
 down the timber, and locating the prop- 
 erty as their own ; and that the bill was 
 not maintainable after so great a lapse of 
 time, particularly as it set forth no new 
 discoveries in relation to the quantity and 
 value of the timber, which might not have 
 been obtained within a single year, and as 
 the evidence was obscure as to material 
 points. Hough v. Richardson, 3 Story, 
 660 ; see Veazie v. Williams, 3 Story, 611 ; 
 S. C. 8 How. (U. S.) 134 ; Sanborn v. Stet- 
 son, 2 Story, 481 ; Ferson v. Sanger, 1 
 Wood. & M. 138; Pratt 0. Carroll, 8 
 Cranch, 47.] 
 
 (r) 3 & 4 Will. 4, c. 27, s. 24 ; post, ch. 
 12. [The rule of courts of equity, aside 
 from any statute expressly applied to them, 
 has generally been, in proper cases, to act 
 either in obedience to, or upon, the anal- 
 ogy of the general statute of limitations of 
 actions at law. 2 Story Eq. Jur. §§ 1521, 
 I52I0; 1 Dan. Ch. Pr. (4th Am. ed.) 560, 
 &note{l); Person v. Sanger, Davies's 
 Eep. 252.] 
 
 [254] 
 
390 EIGHT TO RESCIND BARRED BY TIME. [CH. V. § V. 
 
 might have been known or discovered ; (r^) but such relief is not 
 given against a bond fide purchaser for valuable consideration 
 Avithout notice.(s) But though this is the limit, yet the act does 
 not interfere with any rule or jurisdiction of courts of equity in 
 refusing relief, on the ground of acquiescence or otherwise, to 
 any person whose right to bring a suit may not be barred by the 
 act.(^) The time may be shortened, it cannot be lengthened. 
 
 39. In a case where a conveyance was set aside upon inade- 
 quacy of price and fraud, and the purchase money had been 
 secured at interest, which had been paid thereon, the court, be- 
 yond the repayment of the principal, considered the payments 
 
 (>■') [Equity has always interfered to 
 prevent the bar of the statute of limita- 
 tions in such cases. 2 Story Eq. Jur. § 
 1521 ; Deloraine v. Brown, 3 Bro. C. C. 
 (Perkins's ed.) 646, in note (a), and eases 
 cited; Phalen !>. Clark, 19 Conn. 421; 
 Blair v. Bromley, 5 Hare, 559 ; Allfrey v. 
 AUfrey, 1 Mac. & G. 99 ; 1 Dan. Oh. Pr. 
 {4th Am. ed.) 645, and cases in note (-3) 
 and note (6); Kerr P. & M. (1st Am. 
 ed.) 309, and cases cited ; Stocks v. Van 
 Leonard, 8 Geo. 511; Gibson v, Fifer, 
 21 Texas, 260 ; Smith v. Fly, 24 Texas, 
 345 ; Martin v. Martin, 35 Ala. 560 ; 
 Sherwood v. Sutton, 5 Mason, 143 ; Par- 
 nam v. Brooks, 9 Pick. 244. Where a 
 sale of timber lands was made in 1835, 
 and a bill in equity was brought in 1841 
 to set it aside, for mistake and fraud, and 
 it appeared that false statements had been 
 made by the seller, going to the essence of 
 the bargain, on which the buyer had re- 
 lied, and that the existence of the fraud 
 had not before come to the knowledge of 
 the plaintiff, the lapse of time was held, 
 under the circumstances, not to be a bar 
 to the suit. Doggett v. Emerson, 3 Stoiy, 
 700. It is no answer to a plea of the stat- 
 ute of limitations at law that the plaintiff 
 was prevented by the fraud of the defend- 
 ant from knowing of the cause of action 
 until after the time of limitation had ex- 
 pired. The Imperial Gas Light & Coke 
 Co. V. The London Gas Light Co. 10 
 Exeh, 39 ; Troup v. Smith, 20 John. 43 ; 
 Smith 'v. Bishop, 9 Vt. 110; Franklin v. 
 
 Waters, 8 Gill, 322 ; Lewis v. Houston, 1 1 
 Texas, 642; Callis v. Waddy, 2 Munf 
 511 ; Rice v. White, 4 Leigh, 474; Baines 
 V. Williams, 3 Ired. 481 ; Campbell v. Vin- 
 ing, 23 111. 525 ; Pee v. Fee, 10 Ohio, 469 ; 
 Allen V. Mille, 17 Wend. 202. But in 
 Pennsylvania and some other States it has 
 been held that a plea of the statute of lim- 
 itations may be successfully met by proof 
 of 1 fraudulent concealment of the cause 
 of action. The Harrisburg Bank v. Pos- 
 ter, 8 Watts, 12; Harrell v. Kelly, 2 Mc- 
 Cord, 426 ; Way v. Cutting, 20 N. H. 187 ; 
 Sherwood v. Sutton, 5 Mason, 143 ; Cole 
 V. McGlathry, 9 Greenl. 131 ; Bricker v. 
 Lightner, 40 Penn. 139 ; Persons v. Jones, 
 12 Geo. 371 ; Conyers v. Renans, 4 Geo. 
 308 ; Livermore v. Johnson, 27 Miss. 284 ; 
 Kerr F. & M. (1st Am. ed.) 310, note; 
 10 Exch. (Am. ed.) 44, not« ; First Mass. 
 Tump. Corp. v. Field, 3 Mass. 201 ; Ho- 
 mer V. Pisk, 1 Pick. 435 ; Wells v. Fish, 
 3 Pick. 74. This is secured by statute in 
 Massachusetts. Gen. Sts. c. 155, § 12; 
 Rice V. Burt, 4 Cush. 208. The bar is 
 not avoided by a fraud which the party 
 has full means of discovering. Farnam v. 
 Brooks, 9 Pick. 244 ; Cole v. McGlathry, 
 9 Greenl. 131 ; Dodge v. Essex Ins. Co. 
 12 Gray, 65, 71 ; Nudd v. Hamblin, 8 
 Allen, 130; McKown v. Whitmore, 31 
 Maine, 448 ; Rouse v. Southard, 39 Maine, 
 404. But see and consider Way v. Cut- 
 ting, 20 N. H. 187.] 
 
 (s) 3 & 4 Will. 4, c. 27, s. 26. 
 
 (t) S. 27. 
 
CH. V. § v.] RENT AND INTEREST. 391 
 
 of interest as made, not as interest, but as principal, making the 
 seller chargeable with interest on all the sums received by her, 
 whether received as interest or as principal.(M) And the interest 
 has been ordered to be paid at five per cent.(a;) 
 
 40. But a purchaser, where the contract is rescinded, is not to 
 be charged with what, without wilful default, he might have 
 made; it is not like the case of mortgagees. (.y) 
 
 41. In a case where a sale of leasehold houses was set aside, 
 and the purchaser had been in possession, an occupation rent 
 was set upon the houses, the purchaser being allowed for lasting 
 repairs and substantial improvements, and he was to be repaid 
 the purchase money with interest, and there was to be a set-ofF; 
 and ultimately, annual rests were directed, so as to apply the 
 excess of the rent above the interest in reduction of the prin- 
 cipal, (sr) 
 
 42. But the purchaser in such a case is not to pay interest 
 upon interest after the annual rent has liquidated the whole of 
 the principal ; after that it becomes merely an account ef the 
 occupation rent, which is to be taken without interest. (2) 
 
 43. A purchaser, after he knows of the defect of the title, can- 
 not claim an allowance for subsequent repairs.(a) But this 
 would hardly be extended to such repairs as, during the litiga- 
 tion or preparatory to it, were necessary to the upholding of 
 the premises in common condition. Although a purchaser is 
 allowed for lasting repairs, &c., with interest, the relief will not 
 go beyond the prayer of the bill.(6) 
 
 44. If a purchaser of a house, the contract for which is re- 
 scinded, * have converted it from a private house into a shop, he 
 may be compelled at his own expense to reinstate it as a private 
 house.(c) 
 
 45. We may now consider questions regarding interest and 
 other allowances and costs where a suit is instituted ; and the 
 effect of a reversal of the decree below upon those questions. 
 
 (a) Murray v. Palmer, 2 Sch. & Lef. {z) Donovan u. Fricker, Jac. 165; Nee- 
 
 489. som V. Clarkson, 4 Hare, 104. 
 
 (t) Donovan t>. Fricker, Jac. 165 ; Tnr- (a) S. C. [See Barlow v. Bell, 1 A. 
 
 ner v. Harvey, Jac. 169 ; Edwards v. K. Marsh. 246 ; M'Kim v. Moody, I 
 
 M'Leay, 2 Swan. 287. Band. 58.] 
 
 ly] Murray v. Palmer, 2 Sell. & Lef. (6) Edwards v. M'Leay, 2 Swan. 287. 
 
 489, (c) Donovan v. Fricker, Jac. 165. 
 
 [255] 
 
392 INTEREST. COSTS. [CH. V. § V. 
 
 i46. If pending a suit by a purchaser to rescind a contract, 
 interest on the purchase money, which by the contract he was 
 to pay, is ordered to be paid into court, the seller, if the bill is 
 dismissed, will be entitled to the stock in which the money may 
 have been invested, and the accumulations of it.{d) If the in- 
 vestment and the accumulations fall short of the amount" due 
 to the seller, the seller may perhaps be allowed to pursue any 
 remedy he has at law to recover the balance.(e) 
 
 47. A plaintiff in equity cannot, if his bill be dismissed, be 
 compelled by a subsequent order to give relief to the defendant 
 for some matter not in the jurisdiction of the court.(/) But if, 
 in a suit by a purchaser to rescind a contract, an order be made 
 postponing the payment of interest stipulated for by the contract 
 till the hearing of the cause, and the bill ultimately be dismissed, 
 the court will then order the plaintiff to pay the instalments of 
 interest due at the time of (but not those becoming due after) 
 the decree to the purchaser instead of leaving him to recover 
 them«at law. But interest cannot be given for the delay, for the 
 court allowed the party to retain the money. (§•) The court, 
 therefore, ought not to make such an order, except upon terms 
 which may ultimately enable justice to be done to the de- 
 fendant. 
 
 48. If in such a suit, where the purchaser has a decree to 
 resdind the contract, he obtains a transfer of a fund paid into 
 court by himself, as instalments payable under the contract to 
 the seller, and the decree be afterwards reversed, the seller is 
 entitled to the fund and the dividends ; but if the purchaser 
 have in the mean time sold the fund, the court cannot compel 
 him to pay interest upon it. Nor will interest be given on costs 
 paid under the original decree. Nor will a decree of reversal in 
 the Lords enable the court below to order the payment of instal- 
 
 {d) Small V. Attwood, 3 To. & Col. 105. course, give interest on interest. Doggett 
 
 [Where a sale or conveyance is set aside v. Emerson, 1 Wood. & M. 195 ; see the 
 
 on the ground of fraud in the vendor, in- decree in Daniel v. Mitchell, 1 Story, 172, 
 
 terest is to be allowed on the money re- 197.] 
 
 funded, without reference to any demand, (e) S. C. 
 
 and from the time it was received, and (/) Brown v. Newall, 3 My. & Cra. 
 
 whether such money was received as prin- 558 ; 3 Yo. & Col. 1 24. 
 
 cipal, or as interest on instalments not paid {g) Small v. Attwood, 3 Yo. & Col. 
 
 as they became due by the original con- 105. 
 tract. This, in the latter case would, of 
 
CH. V. § v.] OF FOLLOWING THE PURCHASK MONEY. 393 
 
 ments, then actually payable,(/t) for if the decree had properly 
 dismissed the bill such an order could not have been made. 
 
 49. If after a decree for a specific performance against a pur- 
 chaser, he disobey the decree and withholds the purchase money, 
 the court, upon the seller's motion, will dismiss the bill, unless 
 the purchaser within a short day pay the purchase money, in- 
 stead of compelling the seller to prosecute the decree.(i) 
 
 *50. In Small v. Attwood {k) the purchase was rescinded by 
 decree; 200,000/. had been paid, and possession given to the 
 purchasers of the estate, which they still retained, and claimed 
 a lien for the purchase money paid.(/) After the decree they 
 filed a supplemental bill, stating the payment of the 200,000/., 
 and tracing its investment in stock and the transfer of the stock 
 to a third person without consideration, as it was alleged, and 
 praying that they might, without prejudice to their lien on the 
 estate, be decreed to be entitled to the specific stock, and Lord 
 Lyndhurst C. B. so decided, and accordingly granted an injunc- 
 tion. This is the only case in which equity has followed the 
 purchase money, and ordered it to be specifically restored. 
 There was an appeal against the order to the House of Lords, 
 which it became unnecessary to prosecute, as the decree in the 
 original suit was reversed, on the ground that no fraud was 
 practised by the seller.(»i) But the decree could hardly have 
 been maintained. It was a considerable argument against the 
 relief, that it had never been administered, and the inconvenience 
 is obvious. In the case of a mere naked fraud, which altogether 
 vitiates a contract both at law and in equity, there is not much 
 difficulty in attaching the money if it can be traced, as it never 
 of right belonged to the seller. But in a case like Small and 
 Attwood, the relief, although granted, and upon the ground of 
 a fraudulent concealment, proceeds rather upon equitable rules 
 
 (h) S. C. &c. Eailway Co. 35 Beav. 52 ; L. E. 1 Eq. 
 
 (i) Foligno v. Martin, 16 Beav. 586; 195; Bishop of Winchester v. Mid-Hants 
 
 [Sweet V. Meredith, 4 Giff. 207 ; 9 Jur. N. Eailway Co. L. E. 5 Eq. 17, V. C. S. ; 
 
 S. 569. But if the plaintiff is unwilling Wing v. Tottenham & Hampstead Junc- 
 
 to rescind, he may obtain a declaration tion Eailway Co. L. E. 3 Ch. Ap. 740.] 
 
 that he has a lien on the property for his (k) To. 407. 
 
 unpaid purchase money and costs, and an (I) 6 CI. & Fin. 232 ; see 16 Beav. 202. 
 
 order for the sale of the property for the (m) lb. ; Ernest v. Croysdill, 2 De G., 
 
 purpose of paying them. Walker v. Ware F. & J. 188. 
 
 [256] 
 
394 OF FOLLOWING THE PURCHASE MONEY. [CH. V. § V. 
 
 than upon absolute legal nullity. Much arrangement is required 
 to do justice between the parties in such a case, and the follow- 
 ing of the money does not seem to be justified by the practice 
 of the court, nor can it perhaps be supported upon principle. 
 In the case in question, the purchaser had had possession of the 
 seller's estate for a long time, and dealt with it as owner, and he 
 insisted upon his right to retain it, and to enjoy it as owner, 
 subject ultimately to account, until the accounts were finally 
 settled. By the injunction he obtained the security of the return 
 of his money, as well as retained his lien on the estate for it, 
 and possession of the estate itself. It had never before occurred 
 to any one that such relief could be obtained. If the case had 
 remained undisturbed, it would have introduced a, practice of 
 attempting in all such cases to follow the money, and for that 
 purpose of introducing charges and interrogatories into suits 
 which would tend to great prolixity, and expose every dealing 
 and transaction of a defendant between the receipt of the money 
 and the time of answering. 
 
CHAPTER VI. 
 
 OF THE TIME ALLOWED TO COMPLETE THE CONTRACT. 
 
 SECTION I. 
 
 OP THE MATERIALITY OF TIME. 
 
 1. Lunar or calendar months. 
 
 2. Time essence of contract at law. 
 i. Lang V. Gale. 
 
 5. Observations upon it. 
 
 6. Where no time fixed; rights of vendor. 
 
 7. Waived at law. 
 
 9. Waived or enlarged by writing or parol. 
 10. Where not material in equity. 
 
 1. In sales by private agreement it is usual to fix a time for 
 completing the contract. In a contract at law, month means a 
 lunar month, unless there is admissible evidence of an intention 
 in the parties using the word to denote a calendar month.(a) (1) 
 
 2. The time fixed is, at law, deemed of the essence of the 
 contract ; (b) for it is the duty of the seller to be ready to verify 
 the abstract on the day on which it was agreed that the purchase 
 should be completed ; and if he have not the title deeds in his 
 possession, or the abstract set forth a defective title, the pur- 
 
 (a) Lang v. Gale, 1 Man. & Sel. Ill ; Cooper, 22 Maine, 133 ; Wiswall v. Mc- 
 
 Hipwell V. Knight, 1 Yo. & Col. 419; Gown, 2 Barb. 270 ; Hanslip v. Padwick, 
 
 which is perhaps not express enough to 5 Exch. 623 ; Tilley v. Thomas, L. B. 3 
 
 justify the marginal abstract; 4 Yo. & Col. Ch. Ap. 69, per Sir John Rolt L. J.; 
 
 566; Simpson u. Margitson, 11 Q. B. 23 ; Chitty Coutr. (10th Am. ed.) 336; Eob- 
 
 In re Swinford, 6 Mau. & Sol. 226. [See erts v. Berry, 3 De G., M. & G. (Am. ed.) 
 
 Hardin v. Major, 4 Bibb, 104 ; Shapley v. 289, and cases in note (1 ) ; Shaw ». Wilkins, 
 
 Garey, 6 Serg. & R. 539.] 8 Humph. 647 ; Shuflleton v. Jenkins, 1 
 
 (6) Berry v. Young, 2 Esp. 640, u. ; Morris, 427 ; Stitaell v. Kopp, 9 W. & 
 
 Lang V. Gale, 1 Mau. & Sel. 1 1 1 ; 9 Ad. & Serg. 29 ; Stevenson v. Maxwell, 2 Comst. 
 
 El. 517 ; Wilde v. Forte, 4 Taunt. 334 ; 408 ; Burlington &c. v. Boesler, 15 Iowa, 
 
 Marshall v. Powell, 9 Q. B. 779 ; [Hill v. 555 ; Tiernan v. Roland, 15 Penn. St. 
 
 School District No. 2 in Millburn, 17 429 ; Falls v. Carpenter, 1 Dev. & Bat, 
 
 Maine, 316,322; Norris v. School District Eq. 277; Hill v. Fisher, 34 Maine, 143. 
 in Winsor, 12 Maine, 293; Allen v. 
 
 (1) In acts of parliament, "month "is to mean calendar month, unless words be 
 added showing lunar to be intended, 13 & 14 Vict. c. 21, a. 4. 
 
 [257] 
 
396 MATERIALITY OF TIME. [CH. VI. § I. 
 
 chaser may resist the completion of the contract, and recover his 
 deposit. 
 
 3. But it is no objection that, at the time of the agreement, 
 matters remained to be done to complete the title, which in their 
 nature were capable of being effected before the completion of 
 the purchase.(c) 
 
 4. In a case [d) upon a sale by auction, the conditions stipu- 
 lated that the abstract should be delivered to the purchaser within 
 a fortnight, and should be returned at the end of two months ; [d}^) 
 thait a draft of the conveyance should be delivered to the pur- 
 chaser within three months, and be returned to the seller within 
 four months ; and that the remainder of the purchase money 
 should be paid on the 24th day of June then next (which was 
 five months after the sale), when * the purchaser should receive 
 his conveyance executed by all parties, to be prepared by the 
 seller's attorney, at the expense of the purchaser. It was not 
 necessary to decide the point ; but Le Blanc J. said that it was 
 clear that it was a condition precedent that a draft of the con- 
 veyance should be delivered to the purchaser ; the question was, 
 whether it must be done by a particular day ; if it were neces- 
 sary to enter upon that question, it might, perhaps, be material 
 to advert to the rule, that where a condition does not go to the 
 whole consideration (e) of the contract, but to a part only, it is 
 not a condition precedent.(e^) Bayley, J., was of the same 
 opinion. It was not a condition precedent that the draft should 
 be delivered by a particular day, for he did not consider the pre- 
 cise time of the delivery as an essential ingredient in that con- 
 dition, which was meant only to secure a delivery within a rea- 
 sonable time. 
 
 (c) Stowell V. Robinson, 3 Bing. N. C. date, and not from its delivery, unless so 
 928 ; the marginal abstract substitutes one much time has passed before the delivery 
 time for the other ; [Tison v. Smith, 8 as to make the performance within that 
 Texas, 147 ; Dresel v. Jordan, 104 Mass. time impossible or unreasonable. Gold- 
 407 ; Jones v. Taylor, 7 Texas, 240 ; More smith v. Guild, 10 Allen, 239 ; see Styles 
 V. Smedburgh, 8 Paige, 600 ; Westall v. v. Wardle, 4 B. & C. 908.] 
 
 Austin, 5 Ired. Eq. 1 ; Kindley v. Gray, 6 (e) Havelock v. Geddes, 10 East, 564. 
 
 Ired. Eq. 445.] (el) [Bennet v. Pixley, 7 John. 250; 
 
 (d) Lang v. Gale, 1 Mau. & Sel. 111. Roberts v. Marston, 20 Maine, 275, 277 ; 
 {d}) [A written contract for the pur- Tompkins v. Elliot, 5 Wend. 496 ; Payne 
 
 chase and sale of land within ten days is v. Bettisworth, 2 Marsh. 429 ; Obermyer 
 to be performed within ten days from its v. Nichols, 6 Binn. 166.] 
 
 [258] 
 
CH. VI. § I.] TIME IMPERATIVE AT LAW. 397 
 
 5. The general opinion has always been, that the day fixed 
 was imperative on the parties at law.(/) In the above case the 
 agreements go to the whole consideration on both sides"; they 
 are mutual conditions ; the one precedent to the other.(g") If the 
 draft of the conveyance, for instance, is not delivered on the day 
 appointed, the party who ought to deliver it has broken his agree- 
 ment, and therefore cannot recover upon it at law. This works 
 no injustice; for the further execution of the contract is at once 
 stopped ; the seller retains his estate, and the purchaser bis pur- 
 chase money, and the party making default is liable, as he ought 
 to be, to an action for breach of his engagement. It is to be 
 hoped, therefore, that the day appointed will always be deemed 
 of the essence of the contract at law. It has so been held in a 
 recent case in the common pleas.(A) And where the purchaser 
 by a covenant in the contract was to pay a further sum of money, 
 provided the adjoining houses should be paved in front, &c., be- 
 fore a day named, and the pavement was not completed until 
 after the day appointed, although the delay was occasioned by 
 the bad weather, the seller was held not entitled to recover the 
 money. (i) So a period fixed for obtaining the consent of the 
 com-t of chancery to a sale by trustees may operate as a condi- 
 tion precedent, and the contract will fail if the condition be not 
 performed.(A) 
 
 6. Where a precise time is not fixed for making out a title, it 
 will *not be implied from slight circumstances; and the seller 
 must be allowed a reasonable time.(^) And in such a case a 
 
 (/) 9 Ad. & El. 517 ; [Hill v. Fisher, (i) Porcher v. Gardner, 8 C. B. 461. 
 34 Maine, 143 ; Tilley v. Thomas, L. R. 3 {I) Sansom v. Rhodes, 6 Ring. N. C. 
 
 Ch. Ap. 61.] 261 ; sed'qu. ; [Watts v. Sheppard, 2 Ala. 
 
 (g) Boone v. Eyre, 1 H. Black. 273; 10 425 ; Sawyer v. Hammatt, 15 Maine, 40 ; 
 
 East, 564 ; Lloyd v. Lloyd, 2 My. & Cra. Cocker v. Franklin H. & F. Manuf. Co. 3 
 
 1 92 ; Franklin v. Miller, 4 Ad. & El. 599 ; Sumner, 530 ; Sanford v. Emory, 34 111. 
 
 as to conditions precedent, see Grey v.- 468 ; Pickering v. Pickering, 38 N. H. 
 
 Friar, 4 H. L. Cas. 565 ; Newson v. Smyth- 400. And so where a person agrees to 
 
 ies, 3 H. & N. 840 ; White v. Beeton, convey land and no time is specified, and 
 
 7 H. & N. 42. the purchase money has been paid, he is 
 
 {h) Wilde V. Forte, 4 Taunt. 334 ; Ed- entitled to a reasonable time within which 
 
 man v. Allen, 5 Bing. N. C. 19 ; Hagedom to execute the conveyance. Kime v. Kime, 
 
 V. Laing, 6 Taunt. 514 ; Stowell v. Robin- 41 111. 397. On the other hand when no 
 
 son, 3 Bing. N. C. 928 ; Martindale v. time for payment is fixed the general rule 
 
 Smith, 1 Q. B. 389. is a reasonable time; when the parties by 
 
 (8) Maryon v. Carter, 4 C. & P. 295. mutual forbearance put off the time, the 
 
 [2.59] 
 
398 TIME NOT FIXED. [CH. VI. § I. 
 
 seller has been allowed to recover in an action for damages, 
 where the purchaser had not previously applied for the title, al- 
 though the title was made good after the action was brought.(m) 
 So where a title was to be made, or a bond of indemnity was 
 to be given, time at law was not deemed of the essence of the 
 contract.(w) But if the vendor cannot verify the abstract at the 
 time appointed, or if he produce a defective title, the purchaser 
 may bring his action, and the seller having a title at the time of 
 trial will not avail him ; (o) not even if he had the means of 
 making a title before the action brought, if the title was rested 
 on other grounds, and the real title was not communicated to 
 the purchaser until near the time of trial.(j») In a case where 
 the sale was made by a first mortgagee under a power of sale, 
 and the conditions bound the purchaser to take the title under 
 the power without the concurrence of the subsequent incum- 
 brancers, it appeared that the seller had not given the notice re- 
 quired by the power to the mortgagor, but the sale was made 
 with his assent, and he ratified it subsequently by a written 
 agreement, and the subsequent mortgagees (q) by deed also rati- 
 fied the sale ; yet it was held that the purchaser could rescind 
 the contract, for the sale originally was not binding on the sub- 
 sequent mortgagees, and the purchaser was entitled to a good 
 title under the power, and was not bound to undertake the 
 trouble and responsibility of investigating the title produced 
 under all the mortgagees.(>") But a seller need not at law, any 
 more than in equity, have those things done in regard to title 
 which may properly be effected before the completion of the 
 purchase ; therefore, at the time of the contract, the want of a 
 license to assign where one is requisite, or the neglect to register 
 a deed, is unimportant.(s) 
 
 7. But a party even at law has been held by his conduct to 
 have waived a forfeiture of the deposit, so as to entitle the pur- 
 period would be the final demand and re- v. Davis, 2 Eng. 153 ; Blann v. Smith, 4 
 fusal. Meason v. Kaine, 67 Penn. St. 126.] Blackf. 517.] 
 
 (m) Thomson u. Miles, 1 Esp. 184. {p) Seward v. Willock, 5 East, 198; 
 
 (n) Willettu. Clarke, 10 Pri. 207. EadcliiFe v. Warrington, 12 Ves. 326. 
 
 (o) Cornish v. Eowley, 1 Sel. N. P. (g) See marginal note to the Report. 
 160; Dobell v. Hutchinson, 3 Ad. & El. (r) Forster v. Hoggart, 15 Q. E. 155. 
 335 ; Bartlett v. Tuchin, 1 Marsh. 583 ; (s) Eobinson o. Stowell, 3 Bing. N. C. 
 Goodwin v. Lightbody, Dan. 153 ; Eoper 928. 
 v. Coombes, 6 B. & Aid. 584 ; [Tarwater 
 
CH. VI. § I.J 
 
 AGEEEMENT FOR ENLARGING TIME. 
 
 399 
 
 chaser to recover it, although he had not performed the agree- 
 ment at the time stipulated. (^) 
 
 8. And where a purchaser delays to demand possession until 
 the last moment, when he knows it cannot be delivered to him, 
 this may * be looked upon as a waiver, and a device to obtain a 
 rescission of the contract.(M) 
 
 9. Where the contract is under seal, a subsequent agreement 
 not under seal, made before breach of the agreement, enlarging 
 the time for performance of the contract, is invalid at law.(a;) 
 And even where the agreement is not under seal, a subsequent 
 parol agreement to alter or enlarge the time is void.(^) 
 
 10. But equity will in certain cases carry the agreement into 
 execution, notwithstanding that the time appointed be elapsed ; 
 and although there has been no waiver.(z) 
 
 (t) Carpenter v. Blandford, 8 B. &. C. Wells, 3 Ired. Eq. 596 ; Fletcher v. Wil- 
 
 575 ; consider it, and Sweetland v. Smith, 
 Cro. & Me. 585 ; Stowell v. Eobinson, 3 
 Bing. N. C. 928. 
 
 (m) Temple r. Palmer, 1 Per. & Dav. 
 381. 
 
 (x) Eippingall v. Lloyd, 2 Nev. & Man. 
 410. 
 
 (y) Stowell V. Robinson, 3 Bing. N. C. 
 928 ; Lawrence v. Knowles, 7 Sco. 381 ; 
 [Stead V. Dawber, 10 Ad. & El. 57 ; Mar- 
 shall V. Lynn, 6 M. & W. 109 ; Wiswall v. 
 McGown, 1 Hoff. Ch. 126 ; Avery o. Kel- 
 logg, 11 Conn. 575. But even at law, a 
 distinction is drawn between an alteration 
 of the contract by enlarging the time, and 
 mere forbearance to insist upon its per- 
 formance at the time originally fixed. 
 Ogle V. Earl Vane, L. R. 2 Q. B. 275 ; on 
 appeal, L. K. 3 Q. B. 272.] 
 
 (z) Sup. ; 7 Ves. 274 ; Hearne v. Ten- 
 ant, 13 Ves. 287 ; Lennon v. Napper, 2 
 Sch. & Lef 683; [Hepburn v. Anld, 5 
 Crauch, 262 ; Brashier v. Gratz, 6 WTieat. 
 207; Getchell v. Jewett, 4 Greenl. 350; 
 Garnett v. Macon, 6 Call, 308 ; Wells v. 
 
 son, 1 Sm. & M. Ch. 376 ; Benedict v. 
 Lynch, 1 John. Ch. 376 ; Waters v. Travis, 
 9 John. 450 ; Voorhees v. De Meyer, 2 
 Barb. 37 ; Leggett v. Edwards, Hopk. 
 530; Gibbs u. Champion, 3 Ham. (Ohio) 
 335; King v. Ruckman, 5 C. E. Green 
 {N. J.), 316; Barnard t). Lee, 97 Mass. 92. 
 A court of equity will indeed relieve 
 against, and enforce, specific performance, 
 notwithstanding a failure to keep the 
 dates assigned by the contract, either for 
 completion, or for the steps toward com- 
 pletion, if it can do justice between the 
 parties, and if there is nothing in the " ex- 
 press stipulations between the parties, the 
 nature of the property, or the surround- 
 ing circumstances," which would make it 
 inequitable to interfere with and modify 
 the legal right. This is what is meant, 
 and all that is meant, when it is said that 
 in equity time is not of the essence of the 
 contract. Per Lord Cairns L. J. in Tilley 
 V. Thomas, L. R. 3 Ch. Ap. 67 ; per Tur- 
 ner L. J. in Roberts v. Berry, 3 De G., M. 
 & G. 284.] 
 
 [260] 
 
400 
 
 DELAY BY THE VENDOR. 
 
 [CH. VI. § II. 
 
 SECTION II. 
 
 OF DELAYS OCCASIONED BY THE NEGLECT OF EITHEK PARTY. 
 
 1. Time in equity, a bar. — Diligence neces- 
 
 sary in equity. — In equity both par- 
 ties m^lst be active. — Waiver by re- 
 ceipt of abstract after the day. 
 
 2. Where vendor loses his remedy. — There 
 
 must be gross negligence. 
 3'. Time required for repairs, or to get pos- 
 
 4. Effect of delay by purchaser. — Unwilling 
 
 purchaser. 
 
 5. Reversion sold; time important. 
 
 6. Or if sale is to pay debts, &c. — Or by 
 
 ecclesiastical corporation. 
 
 7. Abandonment of contract after decree. 
 
 1. It is now settled, that time alone is a sufficient bar to the 
 aid of the court. Due diligence is necessary to call the court 
 into activity.(a) But although if the vendor be not ready with 
 his abstract and title deeds at the day fixed, the purchaser may 
 avoid the agreement at law,(Z») yet in equity it is equally incum- 
 bent on the purchaser to ask for the abstract, as for the vendor 
 to deliver it. And, therefore, if a purchaser do not call for the 
 abstract before the time agreed upon for its delivery,(c) or do not 
 ask for it until it has become impossible to execute the agree- 
 ment by the day fixed, (rf) * equity will consider the time as 
 
 (a) 1 Ves. 450; Milward v. Earl of 
 Thauet, 5 Ves. 720, n.; Alley v. Des- 
 champs, 13 Ves. 225 ; Eadcliffe v. War- 
 rington, 12 Ves. 326 ; Alley v. Deschamps, 
 10 Ves. 225 ; 1 Bal, & Beat. 68 ; [Laird 
 V. Smith, 44 N. Y. 618./ Laches and neg- 
 ligence in the performance of contracts are 
 not to be encouraged or countenanced; 
 and the party seeking specific performance 
 must show that he has not been in fault, 
 but has taken all proper steps towards per- 
 formance on his own part, and has been 
 ready, desirous, and prompt to perform. 
 But where the party who applies for a spe- 
 ci6c performance, has omitted to execute 
 his part of the contract by the time ap- 
 pointed for that purpose, without being 
 able to assign any sufficient justification or 
 excuse for his delay, and where there is 
 nothing in the acts or conduct of the other 
 party,' that amounts to an acquiescence 
 in that delay, the court will not compel 
 a specific performance. Rogers i). Saun- 
 
 [261] 
 
 ders, 16 Maine, 92; Benedict v. Lynch, 
 1 John. Ch. 375 ; Garnett v. Macon 6 Call, 
 308 ; Goodwin v. Lyon, 4 Porter Eq. 297 ; 
 Hays V. Hall, 4 Porter Eq. 374 ; Scott v. 
 Fields, 8 Ohio, 92 ; Wiswall v. McGown, 2 
 Barb. 270; Voorhees v. De Meyer, 2 Barb. 
 37 ; Wells v. Smith, 7 Paige, 22 ; S. C. 2 
 Edw. Ch. 68 ; More«>. Smedburgh, 8 Paige, 
 600 ; Eeed v. Chambers, 6 Gill & J. 490 ; 
 Page V. Hughes, 2 B. Mon. 441 ; Pratt v. 
 Carroll, 8 Cranch, 471 ; Pratt v. Law, 9 
 Cranch, 456, 494; Eastman v. Plumer, 
 46 N. H. 464, 479 ; Merritt v. Brown, 6 C. 
 E. Green (N. J.), 401 ; Taylor v. Long- 
 worth, 14 Peters (U. S.), 172 ; Johns v. 
 Norris, 7 C. E. Green (N. J,), 102.] 
 (6) Berry v. Young, 2 Esp. 640, n. ; sup. 
 
 (c) Guest V. Homfrey, 5 Ves. 818. 
 
 (d) Jones v. Price, 3 Ans. 924. [It is a 
 reasonable excuse for not fulfilling the 
 conditions of a sale of real estate, as to. 
 the time of payment, by the party seeking 
 performance, that the agreement was with- 
 
CH. VI. § 11.] DELAY BY THE VENDOR. 401 
 
 waived ; or if he receive the abstract after the day appointed, 
 and do not at the time object to the delay, he cannot afterwards 
 insist upon it.(e) 
 
 2. But a specific performance will not be enforced where no 
 steps have been taken by the vendor, although in proper time 
 urged by the purchaser to do so, and the purchaser, immediately 
 when the time is elapsed, insists upon his deposit, and refuses to 
 perform the agreement. This was decided in Lloyd v. Collett.(/) 
 On the 10th August, 1792, the defendant contracted for the pur- 
 chase of the estate, to be completed on or before the 25th March, 
 1793, and had frequently, between those times, applied in vain for 
 an abstract of title. Shortly after the 25th March, the purchaser 
 applied for his deposit, with interest from the 10th August, 1792, 
 when he paid it ; and afterwards repeatedly applied for it before 
 the 10th of June, 1793, when he brought an action for it. On 
 the 16th September, 1793, an abstract was delivered ; the pur- 
 chaser on his return to town, on the 25th of October, wrote, in- 
 sisting that he would not complete his purchase. On the 6th 
 November the bill was filed by the vendor for a specific perform- 
 ance, and for an injunction. Lord Rosslyn said, the conduct of 
 parties, inevitable accident, &c., might induce the court to re- 
 lieve ; but it was a different thing to say that the appointment 
 of a day was to have no effect at all, and that it was not in the 
 power of the parties to contract, that if the agreement was not 
 executed at a particular tinfe, the parties should be at liberty to 
 rescind it. And he therefore considered the contract as at an 
 end. (/I) But where a vendor has proceeded to make out his 
 
 held from him by the other party, after he lated time will be overlooked, and will be 
 was entitled to its possession. Hull a. deemed to have been waived by the oppo- 
 Noble, 40 Maine, 459.] site party. Benedict v. Lynch, I John, 
 (e) Smith u. Burnam, 2 Ans. 527 ; Seton Ch. 370; Hull v. Noble, 40 Maine, 473, 
 V. Slade, 7 Ves. 265. [See Avery v. Kel- 474 ; Laird v. Smith, 44 N. Y. 618.] 
 logg, 11 Conn. 575. Although the party (/) 4. Bro. C. C. 469; 4 Ves. 689; 5 
 seeking specific performance has omitted Ves. 737 ; 7 Ves. 278 ; Potts v. Webb, 4 
 to execute his part of the contract by the Bro. C. C. 330 ; Paine v. Heller, 6 Ves. 
 time appointed for that purpose, still, if 349 ; Warde v. Jeffery, 4 Pri. 294 ; [Eob- 
 the circumstances of the case, and the con- erts v. Berry, 3 De G., M. & G. 289 ; Til- 
 duct of the opposite party will afford ley u. Thomas, L. R. 3 Ch. Ap. 61.] 
 ground for a just inference that he has (/i) [See Benedict v. Lynch, 1 John, 
 acquiesced in the delay and waived the Ch. 370.] 
 default, the nonperformance at the stipu- 
 VOL. I. 26 
 
402 DELAY BY PURCHASER. [CH. VI. § II. 
 
 title, and has not been guilty of gross negligence, equity will 
 assist him, although the title was not deduced at the time ap- 
 pointed. Thus, where (g) the purchase was to be completed on 
 the 30th July, 1793, the abstract was not delivered until the 8th, 
 and the treaty continued until the 25th September, on which 
 day the deeds were delivered, and every difficulty cleared up ; 
 when the purchaser refused to proceed, alleging that he wanted 
 the estate for a residence for the last summer, and insisting he 
 was not bound to go on, on account of the delay. The master 
 of the rolls said, the rule certainly was, that where in a contract 
 either party had been guilty of gross negligence, the court would 
 not lend its assistance to the completion of the contract ; but in 
 this case he thought there had been no such negligence, and de- 
 creed accordingly; adding, that he hoped it would not be gath- 
 ered from thence, that a man was to enter into a contract, and 
 think he was to have his own time to make out his title. 
 
 *3. If an estate was described as in good repair, and it turn 
 out to be in bad repair, and months may be required to repair it, 
 yet the purchaser cannot resist the contract, unless he wanted 
 possession of the house to live in at a given period, by which 
 time the repairs could not be completed. (A) So if the estate is 
 in lease, and it was stated that the purchaser would be entitled 
 to possession several months before the lease actually expire, he 
 cannot rescind the agreement, unless the personal occupation of 
 the estate was essential to him at'the time appointed. (i) In 
 this last case, however, the jurisdiction should be sparingly exer- 
 cised. 
 
 4. The rules on this subject apply to each party ; therefore, 
 where a purchaser permits a long time to elapse without evinc- 
 ing a fixed intention to carry his contract into execution, he will 
 be left to his remedy at law, although he may have paid part of 
 the purchase money. He is not suffered to lie by, and speculate 
 on the estate rising in value. (A) Nor will he be assisted by 
 
 (g) Fordj'ce v. Ford, 4 Bro. C. C. 494 ; (k) Harrington v. Wheeler, 4 Ves. 686 ; 
 
 Radcliffe v. Warrington, 13 Ves. 323. Alley v. Deschamps, 13 Ves. 225 ; Firth v. 
 
 (A) Dyer v. Hargrave, 10 Ves. 505, inf. Greenwood, 1 Jur. N. S. 866; Baskeomb 
 
 ch. 8 ; Nokes v. Ld. Kilmorey, 1 De G. & v. Phillips, 6 Jur. N. S. 363 ; [Rogers v. 
 
 Sm. 444; infra, pi. 6. Saunders, 16 Maine, 92, 99, 100; Shuffle- 
 
 (i) Hall V. Smith, 14 Ves. 426 ; 13 Ves. ton v. Jenkins, 1 Mdrris, 427 ; Scott v. 
 77. 
 
 [262] 
 
OH. VI. § II.] SALE TO PAY OFF INCUMBRANCES, 403 
 
 equity, where he has made frivolous objections to the title, and 
 trifled, or shoWn a backwardness to perform his part of the agree- 
 ment, especially if circumstances are altered. (^) And where the 
 price is unreasonable or inadequate, or the contract is, in other 
 respects, inequitable, equity will not assist either party, if he has 
 permitted the day appointed for completing the contract to elapse 
 without performing his part of the agreement.(»i) Where it is 
 clear that the delay was occasioned by his inability to pay the 
 purchase money, his bill will be dismissed, although on general 
 grounds the delay would not have prevented equitable relief.(w) 
 
 5. In sales of reversions, it is of the essence of justice that 
 such contracts should be executed immediately, and without de- 
 lay.(o) 
 
 6. So time is very material where the estate is sold in order to 
 pay off any incumbrance bearing a higher rate of interest than 
 the vendor is entitled to receive for the purchase money ; (p) or 
 the estate is sold for the purposes of a trade or manufactory ; (q) 
 or the subject of the contract is in its nature of a fluctuating 
 value ; (r) or where the * dealing is with an ecclesiastical corpora- 
 tion. (s) The nature of the property, too, e. g". a public house 
 with possession, with stringent conditions binding on the pur- 
 chaser to compel him to an immediate completion of the con- 
 tract, was considered to be a suflicient ground to hold the seller 
 equally strictly to time.(t) And where the contract is for a house 
 for residence, time is treated as of the essence of the contract, and 
 
 Fields, 8 Ohio, 92 ; Crane v. Decamp, 6 (p) Popham v. Eyre, Lofft, 786 ; 2 Sch. 
 
 C. E. Green (N. J.), 415.] & Lef. 604. 
 
 {1} Hayes v. Caryll, 1 Bro. P. C. 27 ; 5 (?) Parker v. Erith, 1 Sim. & Stu. 199 ; 
 
 Vin. Ab. 538, pi. 18; Spurrier o. Han- Wright v. Howard, lb. 190; Coslake v. 
 
 cock, 4 Ves. 667 ; Pope v. Simpson, 5 Ves. Till, 1 Rus. 376 ; Walker v. Jeffreys, 1 
 
 145; Coward v. Odingsale, 2 Eq. Ca. Ab. Hare, 348 ; Macbryde v. Weekes, 22 Beav. 
 
 688; Green v. Wood, 2 Ver. 632 ; Bell v. 533 ; a mine. 
 
 Howard, 9 Mod. 302 ; Main v. Melbourn, (r) Doloret v. Rothschild, 1 Sim. &.Stu. 
 
 4 Ves. 720 ; Burke v. Smith,- 3 Jo. & L. 590. [See Hepburn v. Auld, 5, Granch, 
 
 193. 279, per Livingston J.; Rogers w..Sann- 
 
 (m) Post, ch, 7; Whorwood v. Simp- ders, 16 Maine, 92, 101 ; post, 268, n. (e) ; 
 
 son, 2 Ver. 186 ; Lewis v. Ld. Lechmere, Richmond v. Gray, 3 Allen, 27 ; Gold- 
 
 10 Mod. 503 ; 2 Mol. 584. smith v. Guild, 10 Allen, 241, 242.] 
 
 (n) Gee v. Pearse, 2 De G. & Sm..325.. (s) Carter v. T>. & C. of Ely, 7 Sinu2Jl. 
 
 (o) Newman v. Eodgers, 4 Bro. C. C. (t) Seaton v. Mapp, ,2 Col. 556. 
 391 ; Spurrier ». Hancock, 4 Yes., 667 ; 1. 
 Pri. 298; 1 Yo. & Col. 416. 
 
 [263] 
 
404 
 
 SALE ABANDONED BY DELAY AFTER DECREE. [CH. VI. § III. 
 
 in case of delay the purchaser may recover compensation. (m) So 
 time is of great importance where the contract is a one-sided 
 one, as where a written offer has been accepted verbally, and the 
 person accepting it is guilty of delay.(a;) 
 
 7. Even after a decree for specific performance, a contract for 
 sale may be abandoned or waived by long delay, and by dealings 
 between the seller and the purchaser treating the former as still 
 owner of the property.(2/) 
 
 SECTION HI. 
 
 OF DELAYS OCCASIONED BY THE STATE OF THE TITLE. 
 
 1. Delay through title not material. 
 
 2. Vendor should file a bill. — Procuring 
 
 title after filing bill. 
 
 3. In equity, time allowed. 
 
 4. Purchaser not bound where new suit nec- 
 
 essary. — Or an account of debts to be 
 taken. 
 
 5. Title should be at date of certificate. 
 
 6. Purchaser proceeding with knowledge of 
 
 defect. 
 
 7. Acceptance of abstract "Sfith notice. 
 
 8. Dormant treaty. 
 
 9. Title too late after purchaser has aban- 
 
 doned. — Delay in filing a bill. 
 
 10. Waiver of time by vendor. 
 
 11. By purchaser, and new delay. 
 
 12. Vendor may rescind contract where 
 
 money cannot be paid. 
 
 13. Time in equity may be essence of con- 
 
 tract. 
 
 14. Time made of the essence against the 
 
 purchaser; delay by the vendor. 
 
 15. When not of essence, time may be fixed 
 
 by notice. 
 
 16. Parkin v. Thorold. 
 
 17. Roberts v. Berry. 
 
 18. Time of the essence, from the nature of 
 
 the property. 
 
 19. Time for delivery of objections; means 
 
 to perfect abstract. 
 
 20. Reference as to time. 
 
 21. Waiver of time in payment confined to 
 
 one instalment. 
 
 22. Rule in equity where no time limited. 
 
 1. A DELAY accounted for by the state of the title will not be 
 a bar to a specific performance, where the time fixed is not ma- 
 terial. 
 
 (m) Gedye i). Duke of Montrose, 26 
 Beav. 45 ; infra. 
 
 {x) Williams v. Williams, 17 Beav. 213 ; 
 vide sup. cb. 4, s. 3, pi. 9, n. 
 
 iy) Sugd. E. of L. 670 ; Ld. Eosse v. 
 Sterling, 4 Dow, 442. [When either party 
 to a contract of sale fails or refuses to 
 claim or act under the contract for such a 
 length of time as to give the impression 
 th;it he has waived or abandoned the sale 
 
 or purchase, and more especially when the 
 ciixumstances justify the belief that his 
 intention was to perform the contract only, 
 in case it suited his interest, he will neces- 
 sarily forfeit all claim to equity. Eastman 
 V. Plumer, 46 N. H. 464, 479 ; Schmidt v. 
 Livingston, 3 Edw. Ch. 213 ; Williams v. 
 Starke, 2 B. Mon. 196 ; De Cordova v. 
 Smith, 9 Texas, 129; Mann v. Dunn, 2 
 OhioN. S. 187.] 
 
CH. VI. § III.J DELAY THROUGH DEFECT IN TITLE. 
 
 405 
 
 2. Where time is not material, and the title is bad, but the 
 defect can be cured, if the vendee is unwilling to stay, the ven- 
 dor should * file a bill to enforce the contract ; (a) for it is suffi- 
 cient if the party entering into articles to sell has a good title at 
 the time of the decree.(ai) And where (b) the vendor, at the 
 time he filed the bill, had only a term of years in the estate, of 
 which he had articled to sell the fee, and after the bill filed, pro- 
 cured the fee by means of an act of parliament ; as the day on 
 which the contract was to be carried into execution was not ma- 
 terial, a specific performance was decreed.(6*) 
 
 3. And although the officer report against the title, yet if it 
 appear that the seller will have a title, upon getting in a term, or 
 procuring letters of administration, &c., the court will not release 
 
 (a) 6 Ves. 655 ; 10 Ves. 315 ; Langford 
 V. Pitt, 2 P. Wms. 629 ; Jenkins v. Hiles, 
 6 Ves. 646 ; Seton v. Slade, 7 Ves. 265. 
 
 (a') [See Hepburn v. Auld, 5 Cranch, 
 262, 275 ; Pinley v. Lynch, 3 Bibb, 566 ; 
 Tyree v. Williams, 3 Bibb, 366 ; Blann u. 
 Smith, 4 Blackf. 517; Seymour v. Delau- 
 cey, 3 Cowen, 445 ; Pierce v. Nichols, 1 
 Paige, 244; Tarwater v. Davis, 2 Eng. 
 153; Baldwin v. Salter, 8 Paige, 473; 
 Dutch Church &c. o. Mott, 7 Paige, 78 ; 
 Colton V. Ward, 3 Monroe, 304, 313 ; 
 Luckett V. Williamson, 37 Missou. 388. 
 It is otherwise where time is of the essence 
 of the contract ; Wells v. Smith, 7 Paige, 
 22 ; S. C. 2 Edw. Ch. 78 ; Dresel v. Jordan, 
 104 Mass. 407; More v. Smedburgh, 8 
 Paige, 600 ; or there is material injury 
 caused by the delay ; Dutch Church &c. v. 
 Mott, 7 Paige, 78 ; Nodine v. Greenfield, 7 
 Paige, 544 ; Mayo v. Swope, 8 Grattan, 46. 
 Where there is a doubt or difficulty about 
 the title, it is usually referred to a master 
 to be examined and reported on. Pierce v. 
 Nichols, 1 Paige, 246 ; M'Comb v. Wright, 
 4 John. Ch. 659, 670. Reference will not 
 be ordered where bill and answer show that 
 no title can be made ; Frost v. Brunson, 6 
 Yerger, 36.] 
 
 (6) Wynn v. Morgan, 7 Ves. 202 ; Eys- 
 ton V. Simonds, 1 Yo. & Col. C. C. 608 ; 
 Ld. Stourton u. Sir Thomas Meers, 2 P. 
 Wms. 631 ; Sheffield v. Ld; Mulgrave, 2 
 
 Ves. jr. 526 ; Ormerod v. Hardman, 5 Ves. 
 722. See Clay v. Rufford, 5 De G. & Sm. 
 784. 
 
 (6') [In Dresel v. Jordan, 104 Mass. 
 415, it is said that " the equitable rule is 
 established by numerous authorities, that 
 where time is sot of the essence of the 
 contract, and is not made material by an 
 offer to fulfil by the purchaser, and a re- 
 quest for a conveyance, the seller will be 
 allowed reasonable time and opportunity 
 to perfect his title, however defective it may 
 have been at the time of the agreement. 
 And in all cases it is sufficient for the 
 seller, upon a contract made in good faith, 
 if he is able to make the stipulated title at 
 the time when, by the terms of the agree- 
 ment or by the equities of the particular 
 case, he is required to make the convey- 
 ance, in order to entitle himself to the con- 
 sideration." See Barnard v. Lee, 97 Mass. 
 92; Richmond v. Gray, 3 Allen, 25, & 
 cases cited in note {a}) above; Tyson v. 
 Smith, 8 Texas, 147 ; Jones v. Taylor, 7 
 Texas, 240 ; More v. Smedburgh, 8 Paige, 
 600; Reeves u. Dickey, 10 Grattan, 138; 
 Purcell V, McCleary, 10 Grattan, 246. 
 Where the vendor has the right to complete 
 his title, the vendee gains nothing by an- 
 ticipating the perfecting of it for himself. 
 Westall V. Austin, 5 Ired. Eq. 1 ; Kindley 
 V, Gray, 6 Ired, Eq. 445.] 
 
 [264] 
 
406 WHERE PURCHASER RELIEVED FOR DELAY. [CH. VI. § III. 
 
 the purchaser ; but will put the vendor under terms to complete 
 his title speedily.(c) Or if a new fact appear which enables him 
 to make a title when the cause is before the court on further 
 directions, the contract will be enforced.(rf) Where the estate is 
 sold by the court, and all the parties beneficially interested in the 
 estate are properly represented in the suit and bound by the de- 
 cree, — an objection to the absence of a party in whom a mere 
 legal estate is vested in trust for the parties before the court, is 
 an objection to the conveyance, and not to the title.(e) 
 
 4. But the court will not extend the rule. Therefore, where 
 upon a creditor's bill filed for sale of the real estate of a trader, 
 the usual accounts were decreed and a sale ordered, and the 
 estates were sold ; but the fact of the trading was not proved, 
 and the cause was reheard, the decree upon which rehearing was 
 also open to objection ; the purchaser under the decree was, upon 
 motion, relieved from his purchase, although the parties were 
 willing to take steps to remove the objections. (/) "Where a tes- 
 tator devised his real estates to trustees to pay debts, with a 
 direction first to sell estate A., and if that were deficient, to sell 
 estate B., and the trustees agreed to sell the latter estate, and 
 upon a bill filed against the purchaser, the master reported a 
 good title. Lord Eldon held, that it was necessary to have a re- 
 port of debts, in order to show that estate A. was insufficient. 
 The sellers then proposed to get a report immediately; but the 
 purchaser refusing to submit to any delay, Lord Eldon dismissed 
 the bill. The vendees, however, refused to give up the contract, 
 and they filed a bill to compel the vendors to execute it, praying 
 the accounts which, although objected to as vexatious, Lord 
 Eldon held to be right, and *they got a decree.(^) But it may 
 be observed that there was no proper suit in which to take the 
 accounts, and the purchasers had a right to become plaintiffs, in 
 
 (e) Coffin V. Cooper, 14 Ves, 205. Barnett, 12 Grattan, 410 ; Miller v. Argyle, 
 
 (d) Esdaile v. Stephenson, 6 Mad. 367 ; 5 Leigh, 460.] 
 
 Sidebotham v. Barrington, 4 Beav, 110; (/) Lechmere ii. Braiser, 2 J. & W. 287.; 
 
 5 Beav. 261 ; ir\fra, oh. 9. Dalby v. Fallen, 8 Sim. 39 ; 1 Rus. & My. 
 
 (e) Keogh v. Keogh, 13 Ir. Eq, K. 284. 296; Costa v. Tumor, 1 Bus. & My. 311 ; 
 [The doctrine is maintained in Virginia Magennis v. Fallon, 2 Mol. 566, 580; 
 that a court will not sell or permit a sale Chamberlain o. Lee, 10 Sim. 444. 
 
 of land with a cloud hanging over the {g) Per Hart, L. C. 2 Mol. 566 ; Eraser 
 title. Lane v. Tidball, Gilm. 130 ; Peers v, v. Wood, 8 Beav, 339. 
 
 [265] 
 
CH. VI. § III.] ABANDONMENT BY PURCHASER FOR DELAY. 407 
 
 order to obtain a title by their own diligence. If a purchaser 
 were to obtain the dismissal of a bill against him, not on the 
 ground that he would himself file a proper bill, but that he 
 would not wait any longer, the court would not relieve him if he 
 were afterwards to file a bill. A purchaser cannot be kept with- 
 out his title until an account of debts is taken. The court can- 
 not suspend a purchase until a new decree is made and report 
 had ; but although a seller file a bill to take an account in con- 
 sequence of the opinion of the court, yet if the purchaser seek 
 to avoid the contract on that ground, the seller himself may con- 
 trovert the necessity of the proceeding.(A) 
 
 5. The general rule is, that if there is not a good title at the 
 date of the certificate, the purchaser is entitled to be discharged. (f) 
 But if the title is that originally produced, although the evidence 
 to support it has varied, the purchaser is bound ; for the evidence 
 and not the title is altered. (A) 
 
 6. Where a purchaser enters into, or proceeds in a treaty, after 
 he is acquainted with defects in the title, and knows that the 
 vendor's ability to make a good title depends on the defects be- 
 ing cured, he will be held to his bargain, although the time ap- 
 pointed for completing the contract is expired, and considerable 
 fwther time may be required to make a good title.(/) In Seton 
 V. Slade,(m) it appeared that the purchaser was aware of the 
 objections to the title at the time he purchased the estate, and 
 afterwards accepted the abstract within a few days of the time 
 appointed for completing the contract. He had, however, pre- 
 viously declared, that if the title was not made out by the time, 
 he would relinquish the contract ; and the day after the time ap- 
 pointed he applied for his deposit, alleging that the abstract, so 
 far from showing a right in the vendor to convey, stated merely 
 a contract for the purchase by him, without noticing a suit in 
 
 (A) Magennis v. Fallon, 2 Mol. 561 . P. C. 291, by T. ; Ex parte Gardner, 4 Yo. 
 
 (i) Kirwan v. Blake, 2 Mol. 581, 582 ; & Col. 503 ; Wood v. Bernal, 19 Ves. 220 ; 
 
 Cpwgill V. Lord Oxmantoun, 3 Yo. & Col. [Craddock v. Shirley, 3 Marsh. 288 ; Jack- 
 
 377; Gamett ». Acton, 28 Beav. 333. son v. Ligon, 3 Leigh, 161; Barrett v. 
 
 (k) 2 Mol. 582. Gaines, 8 Ala. 373 ; Grigg v. Landis, 6 C. 
 
 {I) Pincke o. Curteis, 4 Bro. C. C. 329 ; E. Green (N. J.), 494; Webb v. Hughes, 
 
 Smith ^. Bumam, 2 Ans. 527; Paine v. L. R. 10 Eq. 281 ; 39 L. J. Ch. 606; 18 
 
 Meller, 6 Ves. 349 ; Warde u. Jeffery, 4 W. R. 749.] 
 Pri. 295 ; Smith v. Sir T. Dolman, 6 Bro. (m) 7 Ves. 265. 
 
408 ABANDONMENT BY PUECHASEE FOE DELAY. [CH. VI. § III. 
 
 chancery. But the purchaser having been aware of the objec- 
 tions to the title, and having afterwards received the abstract, a 
 specific performance was decreed.(»i^) 
 
 7. And even where time was of the essence of the contract, 
 the purchaser was held to have waived it by receiving an abstract 
 of an assignment upon which the title depended, and which 
 would not be valid under the then bankrupt law until a period 
 subsequently to the * time appointed for completing the contract, 
 and by corresponding upon that abstract. He ought to have 
 refused to accept the abstract, or to have sent it back forth- 
 with. («) 
 
 8. And although the treaty may have lain dormant for some 
 time, yet if the contract is not abandoned, a performance will be 
 decreed in specie. {o) 
 
 9. But if a purchaser object to the title, and declare he will 
 not complete the contract, and the vendor acquiesce in this 
 declaration, he cannot afterwards clear up the objections to his 
 title, and compel the purchaser to perform the agreement. (jo) 
 And if the seller do not acquiesce, he must not be guilty of un- 
 reasonable delay in filing his bill.(g) Delay will not be excused 
 on the ground that the purchaser had but recently brought an 
 action for the deposit ; the party seeking a performance must 
 show due diligence. (r) And delay will operate against a railway 
 company as well as against an individual.(s) But where the 
 
 (m^) [See Williams v. Glenton, L. E. I Green (N. J.), 118; see Gentry v. Rogers, 
 
 Ch. Ap. 200.] 40 Ala. 442. 1 
 
 (n) Hipwell v. Knight, 1 Yo. & Col. 401 ; (r) Southcomb v. Bp. of Exeter, 6 Hare, 
 
 Hoggart V. Scott, 1 Rus. & My. 293 ; Ma- ' 213; Gordon v. Mahony, 13 Jr. Eq. R. 
 
 gennis v. Fallon, 2 Mol. 576. [See Avery 383 ; Eads v. Williams, 4 De G., M. & G. 
 
 «. Kellogg, 11 Conn. 562; Tilley v. 674; Lloyd u. Wilkes, 2 Eq. R. 1081. 
 
 Thomas, L. R. 3 Ch. Ap. 73.] (s) Hedges v. Metropol. Ry. Co. 28 Beav. 
 
 (o) Ld. Hertford i;. Boore, 5 Ves. 719 ; 109. [Where a railroad company had de- 
 
 Milward V. Earl of Thanet, 5 Ves. 720, n. ; layed to bring a bill, for specific perfferm- 
 
 Garrett v. Ld. Besborough, 2 Dru. & Wal. ance of an agreement by a landowner to 
 
 441. convey land to the company, for more than 
 
 (p) Guest V. Horafray, 5 Ves. 818. three years after his refusal to convey the 
 
 {q) Watson v. Reid, 1 Rus. & My. 236. land according to his agreement, and had 
 
 [A delay of two and one half years not located their road mostly over other land, 
 
 accounted for in bringing suit to compel and the lot had greatly increased in value, 
 
 specific performance, was held fatal to re- and the company had never bound them- 
 
 lief, in Haughwaut v. Murphy, 6 C. E. selves to take the land, it was held, that 
 
 [266] 
 
CH. VI. § III.] ABANDONMENT BY PUKCHASEK FOR DELAY. 409 
 
 contract has been continually performed, although no conveyance 
 has been executed, an objection on the ground of delay cannot 
 be supported. (<) Where, after discussion, the question is whether 
 the vendor will or will not produce a further title, the purchaser 
 may fix a short date within which the vendor must make his 
 election ; but of course this is at the risk of the purchaser's view 
 turning out to be correct.(M) 
 
 10. Although a time is expressly appointed, within which ob- 
 jections are to be made to the title, it may be enlarged by the 
 conduct of the seller amounting to a waiver.(a;) 
 
 11. But although a purchaser entitled to possession by the con- 
 tract, Waived the time by his acts, and by parol enlarged it, yet 
 when the further day arrived, having discovered that the seller 
 could not for some months give him possession of parts of the 
 property, he declared off, and the seller's bill was dismissed, but 
 without costs.(y) 
 
 12. Where circumstances are such that the purchase money 
 cannot be paid for a length of time, as if the purchaser die, or 
 become bankrupt before the contract be carried into effect, and 
 his executors or assignees are not able to get in the assets or 
 effects, the vendor is entitled to require the contract to be re- 
 scinded, and he will be allowed * his costs ; (z) or he may de- 
 mand a specific performance ; and if the defendants are unable 
 or unwilling to perform the contract, that the estates may be 
 resold ; and if the purchase money arising by the resale, together 
 with the deposit, shall not amount to the purchase money, that 
 the defendant may pay the deficiency.(a) In Wright v. Welles- 
 having by their acts and laches for so long for enforcing his rights under the contract ; 
 a period, induced the owner to suppose 1 Dart V. & P. (4th Eng. ed.) 387; see 
 they had abandoned the contract, specific Brooke u. Garrod, 3 K. & J. 608, 616 ; 
 performance would not be enforced. Williams v. Glenton, L. E. 1 Ch. Ap. 200.] 
 Boston & Maine Railroad v. Bartlett, 10 (x) Cutts v. Thodey, 13 Sim. 206 ; sup. 
 Gray, 384 ; see also, Eastman v. Plumer, ch. 5, s. 5. 
 
 46 N. H. 464, 479.] (y) Nokes v. Ld. Kilmorey, 1 De G. & 
 
 (t) Sharp V. Milligan, 22 Beav. 606 ; Ste. 444. 
 
 contract for a lease. (a) Mackreth o. Marlar, 1 Cox, 259 ; 2 
 
 (m) Nott u. Riccard, 22 Bear. 307. [A P. Wms. 67; Whitaker v. Whitaker, 4 
 
 purchaser who takes no steps to enforce Bro. C. C. 31 ; Sir J. Lowther v. Ly. An- 
 
 the contract within a reasonable time, will dover, 1 Bro. C. C. 396 ; Dickenson v. 
 
 be left to his remedies at law; and the Heron, inf. ch. 17, o. 1. 
 
 strong tendency of modern decisions is to (a) Bowles v. Rogers, 6 Ves. 95; Rome 
 
 diminish the time allowed to either party v. Young, 3 Yo. & Col. 199; Duke of 
 
 [267]. 
 
410 TIME ESSENTIAL BY AGREEMENT. [CH. VI. § III. 
 
 ley,(6) upon a sale it was agreed that part of the purchase money 
 should be secured by mortgage. There was a decree for a spe- 
 cific performance, and a conveyance and mortgage were directed 
 to be executed, and further directions were reserved. The mas- 
 ter made his report, by which it appeared that the purchaser had 
 made default in bringing in the proper deeds, and he found what 
 was due, which was regularly demanded, but not paid. The 
 plaintiff, the seller, presented a petition, which came on with the 
 further directions, praying the sale of the property, in conse- 
 quence of the purchaser's default. It was objected that this 
 could not be done ; and that, at all events, a supplemental bill was 
 necessary ; but the vice chancellor made the order as prayed for ; 
 as the defendant had evaded the decree of the court, he would 
 give the relief required by the new state of circumstances, and 
 he thought that the petition was regularly presented. In another 
 case, where an estate was sold by auction, in order to pay off in- 
 cumbrances, under the usual conditions, and the purchase was 
 to be completed on the 25th of March, 1805, the estate was sold 
 for 123,000/., and the purchaser paid only 4,000/. as a deposit 
 when he ought to have paid 24,000/. A short time previously to 
 Lady-day he wrote a letter to the vendors, acknowledging his 
 inability to pay, and requesting them to join in a resale, offering 
 to pay any loss by the second sale. This they refused ; and he 
 not having the money ready, on the 27th of March, 1805, filed a 
 bill for a specific performance, evidently to gain time. The 
 vendors filed a cross-bill ; and afterwards the purchaser became 
 a bankrupt, when the causes were revived. The expenses of the 
 vendors, in payment of the auction duty, &c., were very consid- 
 erable. The cross cause came on first ; the assignees, of course, 
 could not bind themselves to pay the money ; and the contract 
 was decreed to be delivered up and cancelled, so that the vendors 
 became entitled to the 4,000/. deposit, (c) 
 
 *13. It was, at one time, a considerable question, whether 
 equity would permit parties to make time the essence of the 
 contract.{rf) But it is now settled that if it dearly appears to be 
 
 Beaufort v. Phillips, 1 De G. & Sm. 321 ; (c) Steadman v. Ld. Galloway, et e con- 
 Popple V. Henson, 5 De G. & Sm. 318 (1). tra Rolls, 9 Feb. 1808, MS. 
 
 (6) V. C. 26 Feb. 1833, MS. (d) Williams v. Thompson, 4 Bro. C. C. 
 
 (1 ) The report does not state the inability to pay for the estate. 
 
 ■ .[268] 
 
CH. VI. 
 
 §m.] 
 
 TIME ESSENTIAL BY AGREEMENT. 
 
 411 
 
 the intention of the parties to an agreement, that time shall be 
 deemed of the essence of the contract, it must be so considered 
 in equity.(e) And an express power to the seller to annul the 
 
 formance inequitable." " In this age and 
 country, as suggested by Mr. Justice Liv- 
 ingston in his dissenting opinion in Hep- 
 burn V. Auld, 5 Cranch, 279, by Mr. 
 Justice Chapman, in Richmond v. Gray, 3 
 Allen, 30, 31, and Goldsmith v. Guild, 10 
 Allen, 241, 242, and by many judges in 
 other States, the more frequent fluctua- 
 tions in the value of land, and in the busi- 
 ness and circumstances of men, than in 
 England where the doctrine was estab- 
 lished, are important to be considered in 
 each case, and especially when the vendor 
 sues to compel the specific performance of 
 a contract for the purchase of land to 
 which he is unable to make a good title at 
 the time of bringing his suit. But the 
 general doctrine has been adopted by 
 American courts of chancery, and has 
 been repeatedly recognized and affirmed 
 by the supreme court of .the United States 
 and by this court. Hepburn v. Dunlop, 
 1 Wheat. 196; Brashierv. Gratz, 6 "Wheat. 
 533 ; Taylor v. Longworth, 14 Peters (TJ. 
 S.), 174, 175; Fuller v. Hovey, 2 Allen, 
 325; Goldsmith o. Guild, 10 Allen, 241." 
 See, also. King v. Ruckman, 5 C. E. 
 Green (N. J.), 316 ; S. C. 6 C. E. Green, 
 599 ; Roberts v Berry, 3 De G., M. & G. 
 (Am. ed.) 284, and note (1), and cases 
 cited; 1 Story Eq. Jur. § 776; Grigg v. 
 Landis, 6 C. E. Green, 494 ; Hull v. Noble, 
 40 Maine, 459 ; Day v. Luhke, L. R. 5 
 Eq. 336 ; McMurray v. Spicer, L. R. 5 Eq. 
 527 ; Tilley ". Thomas, L. R. 3 Oh. Ap. 
 61 ; Webb v. Hughes, L. R. 10 Eq. 281 ; 
 Young V. Rathbone, 1 C. E. Green (N. 
 J.), 224; Baldwin v. Salter, 8 Paige, 473 ; 
 Stow V. Russell, 36 111. 18 ; Huffman o. 
 Hummer, 2 C. E. Green (N. J.), 263; 
 Bullock V. Adams, 5 C. E. Green (N. J.), 
 367 ; Boston & Maine Railroad v. Bartlett, 
 10 Gray, 384; Holt v. Rogers, 8 Peters, 
 420; Claydon v. Green, L. R. 2 C. P. 511 ; 
 Milnor v. Willard, 34 111. 38 ; Westerman 
 V. Means, 12 Penn. St. 97; Dubois v. 
 
 331 ; Newl. Cont. 238 ; Reg. Lib. B. 1781, 
 fol. 564, a title could not be made without 
 a decree. Gregson v. Riddle, 7 Ves. 268. 
 
 (e) Soton ii. Slade, 7 Ves. 265; Lewis 
 V. Ld. Lechmere, 10 Mod. 503; 3 Ves. 
 693; 12 Ves. 333; 13 Ves. 289; 2 Mer. 
 140 ; Levy v. Lindo, 3 Mer. 81 ; Warde v. 
 Jeffery, 4 Pri. 294; Hunter v. Daniel, 4 
 Hare, 420; Hudson v. Bartram, 3 Mad. 
 440; Boehm v. Wood, 1 J. & W. 419; 
 Williams v. Edwards, 2 Sim. 78; Lloyd 
 u. Rippingale, 1 Yo. & Col. 410 ; Hipwell 
 V. Knight, I Yo. & Col. 416; Parkin v. 
 Thorold, 2 Sim. N. S. 1 ; [King v. Ruck- 
 man, 5 C. E. Green (N. J.), 316 ; S. C. 6 
 C. E. Green, 599 ; Goodwin v. Lyon, 4 
 Porter Eq. 297; Hays v. Hall, 4 Porter 
 Eq. 297; Scott v. Fields, 8 Ohio, 92; Mil- 
 nor V. Willard, 34 111. 48 ; Runnels v. 
 Jackson, 1 Howard (Miss.), 358; Griffin 
 V. Heermance, 1 Clarke, 133; Page v. 
 Hughes, 2 B. Mon. 441 ; Doar v. Mathews, 
 1 Bailey Eq. 371 ; Mason v. Wallace, 3 
 McLean, 148; Shuffleton v. Jenkins, 1 
 Morris, 427 ; Heckard v. Sayre, 34 111. 
 142; Milnor u. Willard, 34 111. 38; Stow 
 V. Russell, 36 111. 19; Pickering v. Pick- 
 ering, 38 N. H. 400. A new agreement 
 entered into by the parties, extending the 
 time, is evidence that they regard the time 
 as material. Wiswall v. McGown, 2 Barb. 
 270 ; King v. Ruckman, 5 C. E. Green 
 (N. J.), 316. The modern rule upon this 
 subject is very clearly stated by Mr. .Jus- 
 tice Gray in Barnard v. Lee, 97 Mass. 94. 
 In regard to the materiality of time the 
 learned judge says : " It is now held that 
 time, although not ordinarily of the es- 
 sence of the contract in equity, yet may 
 be made so by clear manifestation of the 
 intent of the parties in the contract itself, 
 by subsequent notice from one party to 
 the other, by laches in the party seeking 
 to enforce it, or by change in the value of 
 the land or other circumstances which 
 . would make a decree for the specific per- 
 
412 TIME, WHEN MADE ESSENTIAL BY AGREEMENT. [CH. VI. § III. 
 
 contract if the purchase was not completed by the day named 
 was held capable of being exercised, although the seller at the 
 time, and in expectation of the payment of the money, gave a 
 written undertaking to clear up some objections, and executed 
 the conveyance to the purchaser as an escrow.(/) 
 
 14. Where the property was a public-house with possession, 
 and the purchaser was bound to an immediate completion by 
 
 Baum, 46 Penn. St. 537 ; Jones v. Rob- 
 bins, 29 Maine, 351. It is not sufficient 
 to make time of the essence of the con- 
 tract by express stipulation to that effect, 
 that the parties should , name the time of 
 performance in the contract; but it must 
 appear that they really intended to make 
 such time an essential element of their 
 agreement. Gray J. in Barnard v. Lee, 
 97 Mass. 94, 95 j see Jones v. Eobbins, 29 
 Maine, 351. But, although a stipulation 
 in a contract for the sale of lands, that the 
 vendor, "upon receiving such payments 
 and such mortgage at the time and in the 
 manner above mentioned," will convey, is 
 not sufficient of itself to make the time of 
 the essence of the contract, nevertheless, 
 these words, taken in connection with the 
 negotiations and statements at the time 
 the contract was entered into, when the 
 vendor said he wanted the money to fulfil 
 his contracts for the purchase of some of 
 the land, and the time was changed to a 
 later day at the request of the purchaser, 
 and the vendor refused to accept a verbal 
 promise by the purchaser to pay it at an 
 earlier date than the purchaser wished the 
 contract to express, create an express 
 stipulation that time is of the essence of 
 the contract. King v. Ruckman, 5 C. E. 
 'Green (N. J.), 316. It is said by Mr. 
 Justice Story, that " courts of equity have 
 regard to time, so far as it respects the 
 good faith and diligence of the parties. 
 But if circumstances of a reasonable nature 
 have disabled the party from a strict com- 
 pliance, or if he comes, recenti facto, to 
 ask for a specific performance, the suit is 
 treated vrith indulgence, and generally 
 with favor by the court. But then, in 
 
 such cases, it should be clear that the 
 remedies are mutual ; that there has been ' 
 no change of circumstances affecting the 
 character or the justice of the contract ; '' 
 1 Story Eq. Jur. § 776 ; Pratt v. Law, 9 
 Cranch, 456, 493, 494 ; Brashier v. Gratz, 
 •6 Wheat. 528 ; Mechanics' Bank v. Lynn, 
 1 Peters (U. S.), 383; Taylor v. Long- 
 worth, 14 Peters (TJ. S.), 172; Doar v. 
 Matthews, 1 Bailey Eq. 371; "that the 
 chances of gain have not been speculated 
 upon by the party asking for indulgence ; " 
 Rogers v. Saunders, 16 Maine, 92, 99, 100; 
 Alley V. Deschamps, 13 Ves. 228 ; " that 
 compensation for the delay can be fully 
 and beneficially given ; " Pratt v. Law, 9 
 Cranch, 456, 493, 494; "that he who asks 
 a specific performance is in a condition to 
 perform his part of the contract;" Mor- 
 gan V. Morgan, 2 Wheat. 290 ; " and that 
 he has shown himself ready, desirous, 
 prompt, and eager to perform the con- 
 tract." 1 Story Eq. Jur. § 776; King u. 
 Hamilton, 4 Peters (U. S.), 311 ; see New- 
 man V. Rogers, 4 Bro. C. C. (Perkins's 
 ed. ) 393, note ; Hertford v. Boore, 5 Ves. 
 (Sumner's ed.) 719, and notey\ The ques- ■ 
 tion whether time is to be deemed of the 
 essence of the contract, depends upon all 
 the circumstances of the case, and is not 
 ordinarily to be decided until the hearing. 
 Levy V. Lindo, 3 Mer. 81 ; Foxlowe v. 
 Amcoats, 3 Beav. 496; Verplank v. Gaines, 
 1 John. Ch. 59 ; Barnard v. Lee, 97 Mass. 
 96; Wells v. Wells, 3 Ired. Eq, 596.] 
 
 (/) Hudson V-. Temple, 29 Beav, 536; 
 30 L, J. N, S. 251. This is an improper 
 condition to demand, and no purchaser 
 should submit to buy subject to it; it 
 should be strictly construed. 
 
CH. VI. § III.] TIME NOT THE ESSENCE. NOTICE. 413 
 
 strict conditions, by one of which in favor of the' seller, time 
 was made of the essence of the contract, the seller not having 
 made out his title satisfactorily at the time fixed for completion 
 of the sale, his bill against the purchaser was dismissed. (§•) 
 
 15. Where time is not made of the essence of a contract by 
 the contract itself, although a day for performance is named, of 
 course neither party can strictly make it so after the contract; 
 but if either party is guilty of delay, a distinct written notice by 
 the other, that he shall consider the contract at an end if it be 
 not completed within a reasonable time to be named, would be 
 treated in equity as binding on the party to whom it is given ; 
 but a reasonable time must be allowed.(A) In Reynolds v. Nel- 
 son, (f) where the purchaser was in possession as tenant, the 
 seller's notice was, that if the purchaser made default in attend- 
 ing on one of the days named in the notice to complete the 
 purchase, he should consider him as refusing to perform the 
 agreement, and act accordingly; and the vice chancellor ob- 
 served, that although it might now be considered as the settled 
 doctrine of the court, that by the terms of the agreement time 
 might be made the essence of the contract, yet it- had not been 
 decided that where there was no stipulation in the contract, time 
 
 ig) Seaton v. Mapp, 2 Col. 566, sup. ; even at law, to mean possession with a 
 Gedye v. Duke of Montrose, 26 Beav. 45 ; complete title previously shown. As a 
 [Day V. Luhke, L. R. 5 Eq. 336 ; Claydon general rule, I think the word 'possession ' 
 V. Green, L. R. 2 C. P. 511 ; Grigg v. Lan- in such a contract should be so construed, 
 dis, 6 C. E. Green (N. J.), 494. In Tilley A conveyance previously executed is prob- 
 V. Thomas, L. R. 3 Ch. Ap. 61, it was de- ably not necessary." '■ As a matter of 
 cided that the word "possession" in a construction merely, I apprehend the 
 contract for purchase, which provided that words must have the same meaning in 
 possession should be given by a certain equity as at law." " If this be so, time is 
 day, must be understood to mean posses- o< the essence of the contract, and if there 
 sion with a good title shown. In this case is a failure to perform within the time, the 
 a person agreed to purchase a leasehold contract is broken in equity no less than 
 house for his own residence, and contracted at law." With these observations Lord* 
 that he should have possession by a cer- Cairns L. J. agreed.] 
 tain day; the vendor tendered possession, (I') Pegg v. Wisden, 16 Beav. 239; 
 but failed to show a good title by the day Parkin v. Thorold, 16 Beav. 59 ; [King v. 
 named. The stipulation as to time was Ruckman, 5 C. E. Green (N. J.), 316; 
 deemed to be of the essence of the contract. Fuller v. Hovey, 2 Allen, 324 ; Presser v. 
 and a bill for specific performance of the Hilderbrand, 23 Iowa, 483 ; Wells v. Max- 
 agreement was dismissed. Sir John Rolt well, 32 Beav. 408 ; "McMurray v. Spicer, 
 L. J. said : " I am of opinion," " that the L. R. 5 Eq. 527.] 
 possession referred to must be construed, (i) 6 Mad. 18. 
 
414 TIME NOT THE ESSENCE. [CH. VI. § III. 
 
 might be made essential by subsequent notice that it will be so 
 considered, and in this case he might leave that point untouched. 
 The notice given was not that the seller would consider the con- 
 tract at an end if * it was not completed within the time, but 
 that he would consider its not being completed within the time 
 as equivalent to a refusal to perform it ; but whether he would 
 act as if the contract were abandoned, or would act by filing a 
 bill for a specific performance, he left wholly in doubt ; and it 
 was to be observed, that he neither returned nor tendered the 
 deposit which he had received. The usual reference as to the 
 title was therefore made. It may be observed, that the time 
 allowed in this case by the notice was too short, being only three 
 days ; but v?here there has been delay, and the seller gives a 
 proper notice to put an end to the contract in order to quicken 
 the purchaser or to be released from the contract, it must not 
 from the concluding observation in the judgment be inferred, 
 that it is in all cases necessary to return or tender the deposit, 
 for the purchaser by his neglect may have lost his right to have 
 it returned, and the seller's notice, if disregarded, may not revive 
 the purchaser's right to recover. The general operation of such 
 a notice is now settled. (y) Where the dispute was about title, 
 and the purchaser's requisitions were proper, and the seller gave 
 notice that if the purchaser refused to complete within five days, 
 he should resell at the expense of the purchaser, who thereupon 
 gave a counter notice that he should bring an action within a 
 week, and he accordingly did bring an action to recover his 
 deposit, it was held that the vendor had by his notice barred his 
 right to a specific performance, and his bill was dismissed with , 
 costs. (A;) 
 
 16. Even where time was not made of the essence of the 
 contract, but the abstract was to be delivered in ten days, and 
 the purchase completed in three months — the days being named 
 — and the -purchaser was diligent, but a settlement could not 
 be found ; eight days before the time expired, the seller being 
 pressed, said that he only wanted time to find the settlement, 
 
 (j) Taylor y. Brown, 2 Bear. 180; King Ir. Ch. R. 482; Macbryde v. Weekes, 22 
 
 0. Wilson, 6 Beav. 124 ; Heaphy v. HiJl, Beav. 533 ; Haywood v. Cope, 25 Beav. 
 
 2 Sim. & Stu. 29 ; Gordon v. Mahony, 140. 
 
 13 Ir. Eq. R. 404 ; Morgan u. Gurley, 1 (k) Eoyou v. Paul, 28 L. J. N. S. 555. 
 
 [269] 
 
CH. VI. § III.] TIME NOT THE ESSENCE. 415 
 
 and that he believed he had found out where it was, and the 
 purchaser four days afterwards (four days before the expiration 
 of the three months) gave the seller notice that he should con- 
 sider the contract at an end, unless the settlement was produced 
 and the purchase completed by the 5th November — eleven days 
 beyond the three months, which expired on the 25th October : 
 on the 7th November the deposit was applied for ; on the 8th 
 the purchaser was informed that the settlement was found, and 
 would be produced in a few days ; on the 5th the purchaser's 
 solicitor demanded the deposit, or threatened an action ; and on 
 the 8th January the purchaser was informed where the settle- 
 ment was, and that it might be inspected, but the purchaser had 
 continued to insist on the return of the deposit ; it was held, 
 that the seller was not entitled to * enforce the contract in equity, 
 any more than at \aw.(l) This case led to a great difference of 
 opinion. Lord Cranworth, V. C, followed the rule of law, and 
 held that the time was as binding in this case in equity as at 
 law, and therefore dissolved the injunction against the seller's 
 proceeding with art action for the deposit. He did not lay it 
 down in words that time was in this case of the essence of the 
 contract, but in effect he so decided. The case came on for 
 hearing before Sir John Romilly, M. E., who held that time was 
 not, under the contract, of the essence of it, and even if it were, 
 yet that the purchaser had waived it by his extending the time 
 till the 5th November. That this was not a conditional waiver, 
 nor was it so accepted by the seller. Assuming that time was 
 not of the essence of the contract, he held that the notice for 
 the 5th November was for too short a period, and did not bind 
 the seller to complete by that day, and that the seller had not 
 acquiesced in the notice, nor been guilty of laches, and a specific 
 performance was decreed with costs.(»i) This, in substance, 
 appears to be the true view of the case ; but the opinion of the 
 vice chancellor on the voluntary extension of the time seems to 
 be right; for it can hardly be contended that, if time be of the 
 essence of the contract, an extension of it by one party for the 
 convenience of the other can be considered operative beyond the 
 further day named. 
 
 (/) Parkin v, Thorold, 2 Sim. N. S. 1. (m) 16 Bear. 59 ; Pegg v. Wisden, lb. 
 [See Dominick v. Michael, 4 Sandf. 374.] 239. 
 
 [270] 
 
•il6 TIME NOT THE ESSENCE. [CH. VI. § III. 
 
 17. In a later case at the ro]ls,(w) which came on upon a de- 
 murrer to the seller's bill, time was not deemed essential in a 
 case more difficult to manage ; as days were named for the 
 delivery of the abstract and for completion of the purchase, and 
 for objections to be sent in, or they were to be held to be waived, 
 and the purchase was to be completed within seventeen days 
 from the sale; the abstract was to be delivered within seven 
 days, and objections within eight days afterwards, or to be 
 deemed waived ; but, although applied for in time, the abstract 
 was not delivered till five days later than the day named, which 
 was five days only before the time appointed for completion. 
 And this case was considered to be similar to and governed by 
 the decision at the rolls in the former case. It deserved consid- 
 eration whether, where the time for completion is so short, and 
 successive days necessarily at short intervals are named for the 
 acts to be done, the time ought not, by implication, to be deemed 
 of the essence of the contract. If the seller had delivered his 
 abstract by the day named, it would seem that the purchaser 
 would have been bound to have taken the title as it stood if he 
 had not delivered his objections within the eight days allowed to 
 him by the contract. And of course in these cases there should 
 be mutuality. The decision has, however, been affirmed by the 
 lords justices ; and Lord * .Justice Turner thought that the alle- 
 gation that the delivery of the abstract was prevented by the 
 accidental absence of the mortgagee on the continent, made 
 a case for relief on the ground of accident.(o) It would not, 
 however, be safe to rely upon such a ground in similar cases. 
 The decision, of course, depended solely on the statements in 
 the bill. 
 
 18. In a case (p) where time from the nature of the subject 
 of the contract — a mine to be worked for a limited term — was 
 of the essence of the contract, the seller agreed to purchase some 
 land of a third person to be included in the contract. It was 
 held to be unimportant in equity that the contract did not men- 
 tion any time within which it was to be completed ; and that, 
 although the seller was to have a reasonable time to accomplish 
 
 (n) Koberts v. Berry, 16 Beav. 31 ; [S. (o) 3 De G., M. & G. 284; [(Am. ed.) 
 C. 3 De G., M. & G. 284.] note (1), & cases cited.] 
 
 ip) Macbrydeu. Weekes, 22 Beav. 53.". 
 
 [271] 
 
CH. VI. § m.] WHERE NO TISIE IS FIXED. 417 
 
 the object, it was incumbent on him to use his utmost diligence ; 
 and, if he failed to do so, the purchaser might rescind the con- 
 tract. 
 
 19. A condition stipulating that the time appointed after the 
 delivery of an abstract, for the taking of objections, shall be of 
 the essence of the contract, means after the delivery of a perfect 
 abstract.(g') 
 
 20. Where time from the nature of the contract is essential, 
 and it is disputed that the title was made within the stipulated 
 time, it will be referred to chambers to inquire when it was first 
 shown a good title could be made without prejudice to any 
 question in the cause. (r) 
 
 21. Although time be made of the essence of the contract, yet 
 the condition may be waived, just as in an ordinary case ; (r^) but 
 if the purchase money is to be paid by instalments, each breach 
 in nonpayment is a new breach of the agreement, and gives to 
 the seller a right to rescind the contract, but that right should be 
 asserted the moment the breach occurs.(s) 
 
 22. It remains to observe, that where no time is limited for the 
 performance of the agreement, the cases considered under the first 
 division in this chapter will assist the student in forming a judg- 
 ment in what instances equity will assist a party who lias been 
 guilty of laches, although every case of this nature must in a 
 great measure depend upon its own particular circumstances. 
 The cases classed under the second division apply, however, 
 with greater force to cases where no time is limited than to those 
 where a day is fixed, for in the former cases, the court has not 
 to struggle against an express stipulation of the parties.(<) 
 
 (?) Hobson !/. Bell, 2 Beav. 17; Cutts Bailey; Benson v. Lamb, 9 Beav. 502; 
 
 V. Thodey, 13 Sim. 206. Wood i. Machin, 5 Hare, 158. [When 
 
 (r) Foxlowe ». Amcoats, 3 Beav. 496. the contract is silent as to the time of per- 
 
 (ri) [SIoow.Law,! Blatch. 512; Dennis formance, the law infers an engagement 
 
 V. M'Cagg, 32 111. 429 ; Grigg v. Landis, 6 that it shall be executed within a reason- 
 
 C. E. Green (N. J.), 494.] able time. Chitty Contr. (10th Am. ed.) 
 
 (s) Hunter v. Daniel, 4 Hare, 420; 796; Atwood u. Cobl), 16 Pick. 231; 
 
 Monro v. Taylor, 8 Hare, 62 ; 3 M. & G- Roberts v. Beatty, 2 Penn. 63 ; Phillips u. 
 
 713 ; [Linscott v. Buck, 33 Maine, 530 ; Morrison, 3 Bibb, 105 ; Sawyer v. Ham- 
 
 Grigg V. Landis, 6 C. E. Green (N. J.), matt, 15 Maine, 40; Howe v. Hunting- 
 
 508.] ton, 15 Maine, 350 ; Atkinson v. Brown, 
 
 (t) Tyrer v. Artingstall, Newl. Cont. 20 Maine, 67 ; Adams v. Adams, 26 Ala. 
 
 236 ; Eeg. Lib. 1792, fo. 28, nam. Tyrer v. 272 ; Cameron v. Wells, 30 Vt. 633. What 
 VOL. I. ^ '27 
 
418 
 
 WHEEE NO TIME IS FIXED. 
 
 [CH. VI. § III. 
 
 is a reasonable time within which a con- 
 tract is to be performed, where the contract 
 is silent on the subject, is a question of law ; 
 Attwood u. Clark, 2 Greenl. 249 ; Hill v. 
 Hobart, 16 Maine, 164; Howew. Hunting- 
 ton, 15 Maine, 350; and it is to be deter- 
 mined by a view of all the circumstances 
 of the case. Cocker v. Franklin Hemp & 
 Flax Manuf. Co. 3 Sumner, 530. The 
 question has, however, sometimes, under 
 peculiar circumstances, been submitted to 
 the jury ; see Howe v. Huntington, Hill v. 
 Hobart, ubi supra ; Greene v. Dingley, 24 
 Maine, 131 ; Cocker v. Franklin Hemp & 
 
 Flax Manuf. Co. 3 Sumner, 530 ; and parol 
 evidence has been admitted to show what 
 the party to be aiFected considered a rea- 
 sonable time. Coates v. Sangston, 5 Md. 
 121 ; Cocker v. Franklin Hemp & Flax 
 Manuf. Co. 3 Sumner, 530 ; Ellis i^. 
 Thompson, 3 M. & "W. 445 ; see Chitty 
 Contr. (10th Am. ed.) 118, note (x). In 
 Tilley v. Thomas, L. E. 3 Ch. Ap. 61, 67, 
 Lord Cairns L. J. speaks of the period of 
 reasonable time which the law would im- 
 ply, as a test for such a purpose, as emi- 
 nently vague and uncertain.] 
 
* CHAPTER VII. 
 
 OF THE CONSIDERATION. 
 SECTION I. 
 
 OP UNREASONABLE AND INADEQUATE CONSIDEKATIONS. 
 
 1. Unreasonable price, yet specific perform- 
 
 ance. 
 
 2. Unless there be fraud or concealment. 
 
 3. Or there is gross inadequacy. — Fall in 
 
 value immaterial. 
 
 4. Purchaser seldom relieved after convey- 
 
 ance. 
 
 5. Inadequacy of price no bar. — Sale by 
 
 auction. 
 
 6. Life annuity. 
 
 7. Concealment by purchaser. 
 
 9. Misrepresentation by purchaser. 
 10. Both parties ignorant of value. 
 
 12. Seller seldom relieved after conveyance ; 
 
 gross inadequacy. 
 
 13. Unless ignorant of right, and purchaser 
 
 aware of it. — Or advantage taken of 
 distress. — Additional consideration of 
 love and affection. 
 
 14. Heir dealing for expectancy favored. 
 
 15. Although unprovided for. 
 
 16. Purchaser to prove adequacy. 
 
 17. Dealings between father and son. 
 
 18. Sellers of reversions not heirs. — Bulk of 
 
 estate sold reversionary. 
 
 19. Loan under mask of trading; King v. 
 
 Hamlet. 
 
 20. Where sale of reversion valid. — Gow- 
 
 land V. De Faria ; value by the tables, 
 and market price. 
 
 Upon private sale of reversion, full value 
 required. 
 
 Review of the authorities. 
 
 Evidence of surveyors. 
 
 Sale by auction valid — or where person 
 in possession joins. 
 
 Where contingency cannot be valued. 
 
 Misstatement of consideration. 
 
 How adequacy to be shown. 
 
 Delay and confirmation. 
 
 Sale set aside, upon what terras. 
 
 Improvements allowed for. 
 
 Price to be fixed by ajbitrators. — Cannot 
 delegate authority. 
 
 Where court will fix the price. 
 
 Not where parties chosen. — Umpire. 
 
 Appointment to be communicated. 
 
 Failure by arbitration; death. — Nomina- 
 tion of arbitrator cannot be compelled. 
 
 Where award after death of party bind- 
 ing. 
 
 Acquiescence in informal award. — In- 
 junction refused, where authority re- 
 voked. 
 
 Statutory aids to arbitraments. 
 
 Right to appoint new arbitrators. 
 
 Right to appoint an umpire. 
 
 Attachment; action. " 
 
 Sale for fixed sum, with contingent ad- 
 vantage. 
 
 1. An agreement by A., to take up shares allotted by B., in a 
 railway company, upon which the deposit had not been paid, 
 was held to be invalid for want of consideration ; but this, upon 
 appeal, was reversed, as the purchaser would be bound to pay 
 
 [272] 
 
420 OF AN INADEQUATE CONSIDERATION. [CH. VII. § I. 
 
 the deposit and calls in exoneration of the seller.(a) Equity 
 cannot refuse to 'assist a vendor merely on account of the price 
 being unreasonable ; (6) a specific performance will certainly be 
 enforced, if the price was reasonable at the time the contract 
 was made, how disproportionable soever it may afterwards be- 
 come. (6^) 
 
 2. If, however, a man be induced to give an unreasonable 
 price for an estate, by the fraud,(c) or gross misrepresentation,((i) 
 of the vendor ; or by an industrious concealment of a defect 
 in the estate,(e) equity will not compel him to perform the con- 
 tract. 
 
 3. And where these circumstances do not appear, but the 
 estate is a grossly inadequate consideration for the purchase 
 money, equity will not relieve either party. (/) Few contracts 
 can be enforced in equity where the price is unreasonable, be- 
 cause contracts are not often strictly observed by either party ; 
 and if an unreasonable contract be not performed by the vendor, 
 according to the letter in every respect, equity will not inter- 
 fere.(g-) But a purchaser will be compelled to complete his 
 contract, although by the calamities of the times between the 
 contract and the conveyance estates generally are reduced sev- 
 eral years' purchase in value, for that ought not to rescind the 
 contract. (A) 
 
 4. There are few cases in which a purchaser could be relieved 
 
 (a) Cheale v. Kenward, 3 De 6. & J. wards, if the applicant te an infant. Gar- 
 
 27. nett v. Macon, 6 Call, 308.] 
 
 (6) City of London v. Richmond, 2 Ver. (c) James v. Morgan, 1 Ley. Ill, a case 
 
 421 ; Hanger v. Eyles, 2 Eq. Ca. Ab. 689 ; at law ; Conway v. Shrimpton, 5 Bro. P. 
 
 Hicks V. Philips, Pre. C. 575 ; 21 Vin. Ab. C. by Tom. 187. 
 
 (E), n. to pi. 1 ; Keen v. Stukeley, Gilb. (d) Buxton v. Cooper, 3 Atk. 383. 
 
 Eq. E. 155 ; 2 Bro. P. C. 396 ; Charles v. (e) Shirley w. Stratton, 1 Bro C. C.440 ; 
 
 Andrews, 9 Mod. 151 ; Lewis v. Ld. Lech- [Powers v. Hale, 25 N. H. 145.] 
 
 mere, 10 Mod. 503 ; Saville K. Saville, 1 P. (/) Day v. Newman, 2 Cox, 77; 10 
 
 "Wms. 745; Adams v. Weare, 1 Bro. C. C. Ves. 300, cited ; Squire v. Baker, 5 Vin. 
 
 567; and the cases as to inadequacy of Ab. 545, pi. 12. 
 
 price, cited in/ro ; [Bedel t). Loomis, 1 1 N. (g) Cases cited in n. (J), ante ; Edwards 
 
 H. 9.] «• Heather, Sel. C. C. 3 ; [Garnett v. Macon, 
 
 (ftl) [See Falls «. Carpenter, 1 Dev. & 6 Call, 308 ; Rugge v. EiUs, 1 Desaus. 161 ; 
 
 Bat. Eq. 237 ; Osgood v. Franklin, 2 John. Turner v. Clay, 3 Bibb, 52 ; Kamsay v. 
 
 Ch. 26. There seems to be no difference Brailsford, 2 Desaus. 582.] 
 
 between a contract unreasonable when (A) Poole a. Shergold, 2 Bro. C. C. 118. 
 made, and one which becomes so after- 
 
 [273] 
 
CH. VII. § I.] OF AN INADEQUATE CONSIDERATION. 
 
 421 
 
 after the conveyance is executed and the purchase completed, on 
 account of the unreasonable price. (i) 
 
 5. Mere inadequacy of price is not a sufficient ground for a 
 court of equity to refuse its assistance to a purchaser,(A;) par- 
 ticularly where the estate is sold by auction. (Z) 
 
 (i) Sup. ch. 5, s. 5 ; [M'Kinney v. Pink- 
 ard, 2 Leigh, 149.] 
 
 (k) Coles V. Trecothick, 9 Ves. 234; 
 Burrowes v. Lock, 10 Ves. 470 ; Young v. 
 Clerk, Pre. C. 5.38 ; Barrett v. Gomeserra, 
 Bun. 94 ; Underwood v. Hithcox, 1 Ves. 
 279 ; Mortlock v: Buller, 10 Ves. 292 ; 
 Lowther v. Lowther, 13 Ves. 95 ; Western 
 V. Russell, 3 Ves. & Bea. 187 ; Pike v. 
 Vigers, 2 Dru. & Wal. 1 ; 2 Hare, 450 ; 
 Abbott V. Sworder, 4 De 6. & Sra. 448. 
 [It is not sufficient to avoid a contract of 
 sale that the price agreed to be paid appears 
 to be excessive or inadequate ; gross inad- 
 equacy of value may be a strong circum- 
 stance to show fraud, but if there is no 
 fraud or imposition, the parties have the 
 right to fix the measure of value, and if 
 they stand upon equal terms and are in a 
 situation to judge for themselves, and 
 perform the act wittingly and willingly, 
 they will be bound by it. Bedel v. Loomis, 
 11 N. H. 9 ; Butler v. Haskell, 4 Desaus- 
 651 ; Eyre v. Potter, 15 How. (U. S.) 42 ; 
 Barribeau v. Brant, 17 How. (U. S.) 43 ; 
 Erwin. .,. Parham, 12 How. (U. S.) 197; 
 Farnam v. Brooks, 9 Pick. 212; Steele v. 
 Worthington, 2 Ohio, 352 ; Wintermute 
 V. Snyder, 2 Green Ch. 489 ; Cribbins v. 
 Markwood, 13 Grattan, 495 ; Curzon v. 
 Belworthy, 2 H. L. Cas. 742 ; Slater v. 
 Maxwell, 6 Wallace, 268 ; Seymour v. 
 Delancey, 3 Cowen, 445 ; White v. Flora, 
 2 Tenn. 426 ; January v. Martin, 1 Bibb, 
 586 ; Bunch v. Hurst, 3 Desaus. 292 ; 
 Whitefield v. McLeod, 2 Bay, 380 ; Greg- 
 ory V. Duncan, 2 Desaus. 636 ; Osgood v. 
 Franklin, 2 John. Ch. 1 ; S. C. 14 John. 
 427; Sarter v. Gordon, 2 Hill Ch. 126; 
 Delafield v. Anderson, 7 Sm. & M. 630; 
 Cathcart v. Robinson, 5 Peters (U. S.), 
 264 ; Park v. Johnson, 4 Allen, 259 ; Shep- 
 herd V. Bevin, 9 Gill, 32 ; Powers v. Hale, 
 
 25 N. H. 145 ; Lee v. Kirby, 104 Mas.s. 
 420 ; Knobb a. Lindsay, 5 Ham. 472. In 
 Osgood V. Franklin, 2 John. Ch. 23, it 
 was held, that inadequacy of price, though 
 not so gross as to amount to fraud, may 
 be a sufficient ground for refusing to en- 
 force a specific performance of a contract, 
 and a distinction is noted between setting 
 aside a contract for inadequacy, and refus- 
 ing to decree specific performances for that 
 cause. See Mortlock v. Buller, 10 Ves. 
 (Sumner's ed.) 292, & notes ; Powers v. 
 Hale, 25 N. H. 145 ; Westervelt v. Mathe- 
 son, 1 Hoff. Ch. 37 ; Seymour u. Delancey, 
 6 John. Ch. 222 ; Eastman v. Plumer, 46 
 N. H. 464. In this last case, it was also 
 held, that though mere inadequacy of 
 price, independent of other circumstances, 
 is not of itself sufficient to set aside a 
 transaction, yet it may be sufficient to in- 
 duce the court to stay the exercise of its 
 discretionary power to enforce a specific 
 performance of a private contract for the 
 sale of land, and to leave the party to seek 
 his compensation in damages at law, 
 especially where the inadequacy of price is 
 so great (being half the value) as to give 
 to the contract the character of unreason- 
 ableness, inequality, and hardship. See 
 Clitherall v. Ogilvie, 1 Desaus. 250; 1 
 Story, Eq. Jur. § 769 ; Brashier v. Gratz, 
 6 Wheat. 528 ; Ellis v. Burdon, 1 Ala. 
 458, 459 ; Garnett v. Macon, 6 Call, 308 ; 
 Western Railroad Corp. v. Babcock, 6 
 Met. 346, 357 ; Park v. Johnson, 4 Allen, 
 266. For a case of specific performance, 
 although certain stock agreed to be taken 
 by the vendor in payment turned out to be 
 of far less value than represented by the 
 purchaser, in the absence of any fraudulent 
 purpose, see Powers v. Mayo, 97 Mass. 
 180.] 
 {I) White V. Damon, 7 Ves. 30 ; Collet 
 
422 
 
 OF AN INADEQUATE CONSIDEBATION. [CH. VII. § I. 
 
 6. But if an uncertain consideration (as a life annuity) be 
 given for an estate, and the contract be executory, equity it 
 seems will enter into the adequacy of the consideration ; (m) 
 but where the life has not * dropped, the consideration will not 
 be strictly weighed.(w) If the life has dropped before the pur- 
 chase, the purchaser may be relieved, although he has paid the 
 purchase money in ignorance of the event ; but if the purchase 
 take effect during the existence of the annuity, though but for 
 an instant, the purchaser cannot be relieved.(o) 
 
 7. Although a purchaser is not bound to acquaint the vendor 
 with any latent advantage in the estate, (jo) yet any concealment, 
 for the purpose of obtaining an estate at a grossly inadequate 
 price, may be deemed fraudu]ent.(jpi) In the case of Deane v. 
 Rastron,(g') an agreement was made for sale of land at a half- 
 penny per square yard. The price was in all about 5001., the 
 real value 2,000/. The purchaser went out to an attorney, got 
 him to calculate the amount, and desired him not to tell the 
 vendor how little it was, and then prevailed on him to sign it 
 immediately. The desire of concealment was held to be such a 
 fraud as to void the transaction. 
 
 8. So, as we have seen, the not discovering to the seller, who 
 was ignorant of the fact, the death of a party, which increased 
 the value of the estate, although the death was publicly known, 
 was deemed a sufficient ground to rescind the contract.(r) And 
 where a man was an habitual drunkard, and was laboring under 
 delirium tremens and dropsy, which was well known to the pur- 
 chaser, although the man believed himself to be a good life, a 
 contract by him about six months before his death to sell a prop- 
 
 V. WooUaston, 3 Bro. C. C. 228; Ex (o) Strickland a. Turner, 7 Ex. 208; 
 
 parte Latham, 7 Ves. 35, note ; [Newman Hastie v. Couturier, 9 Ex. 109. 
 
 V. Meet, 1 Freem. Ch. 441 ; Haines «. (p) 2 Bro. C. C. 420. 
 
 Coales, I Dev. Eq. 420; Seymour v. Tie- (p') [See Bowman v. Bates, 2 Bibb, 52.] 
 
 lancey, 6 John. Ch. 222.] (?) 1 Ans. 64 ; Young v. Clerk, Pre. C. 
 
 (m) Pope V. Roots, 7 Bro. P. C. 184 ; 538 ; Lukey v. O'Donnell, 2 Sch. & Lef. 
 
 Mortimer v. Capper, 1 Bro. C. C. 156; 466; Eyle v. Swindells, M'Clel. 519, 
 
 Jackson w. Lever, 3 Bro. C. C. 605; Kenney where the purchaser could have reduced 
 
 w. Wenham, 6 Mad. 355 ; Davies u. Cooper, the purchase money; Cockell v. Taylor, 
 
 5 My.&Cra.270; Valentine w. Dickenson, 15 Beav. 115. 
 
 7 Jur. N. S. 857. [See Warner v. Daniels, (r) Turner v. Harvey, Jac. 169 ; Brealey 
 
 1 "Wood & M. 90.] V. Collins, Yo. 317; supra, ch. 5, s. 5 ; 
 
 (n) Bower v. Cooper, 2 Hare, 408. [ante, 5, note {k).] 
 
 [274] 
 
CH. YII. § I.] CONVEYANCE EXECUTED. 423 
 
 erty consisting of a contingent reversionary interest in a money 
 fund, and of the equity of redemption of an estate in possession 
 heavily mortgaged, for an annuity for his own life, was set aside 
 after his death, with costs.(s) 
 
 9. So a misrepresentation by the purchaser, who was the 
 agent of the seller, of the value of the estate, although it oper- 
 ated only to a small extent, has been held to be a suflScient 
 defence against a bill for a specific performance ; for to entitle a 
 person to call for the aid of a court of equity, he must go there 
 with clean hands. (<) 
 
 10. Where neither of the parties knows the value of the estate 
 at the time the contract is entered into, no inadequacy of con- 
 sideration will operate as a bar to the aid of equity in favor of 
 the purchaser ; as where the sale was of a right of common 
 before any allotment. (m) 
 
 11. But, whether an estate is sold by auction, or by private 
 agreement, equity will be as vigilant in discovering an excuse 
 for refusing * to perform the contract, where the price is inade- 
 quate, as it will where the consideration is unreasonable ; (x) 
 especially if the seller be a trustee for sale.(y) 
 
 12. A conveyance executed will not, however, be easily set 
 aside on account of the inadequacy of the consideration.(z) It 
 is not sufficient to suggest weakness and indiscretion in one of 
 the parties ; for supposing it to be an unconscionable bargain, if 
 a person will enter into it with his eyes open, equity will not 
 relieve him, unless he can show fraud in the party contracting 
 with him, or some undue means made use of to draw him into 
 
 (s) Daviee v. Cooper, 5 My. & Cra. 270. wick, 1 Sim. 89 ; 1 Mol. 335. [See Hough 
 
 («) Cadman v. Horner, 18 Ves. 10 ; Wall v. Hunt, 2 Ham. (Ohio) 502 ; Osgood v. 
 
 w. Stubbs, 1 Mad. 80 ; [Eastman u. Plumer, Franklin, 2 John. Ch. 1,23; Butler v. 
 
 46 N. H. 464.] Haskell, 4 Desaus. 651 ; Hardeman v. 
 
 (u) Anon. 1 Bro. C. C. 158 ; 6 Ves. 24; Burge, 10 Terger, 202; Thompson v. 
 
 but see 2 Atk. 134. Jackson, 3 Rand. 504.] 
 
 (x) Whorwood v. Simpson, 2 Ver. 186 ; (y) Goodwin v. Fielding, 4 De G., M. 
 
 Emery v. Wase, 5 Ves. 846 ; 8 Ves. 505 ; & G. 90. 
 
 Twining v. Morris, 2 Bro. C. C. 326 ; («) Dews v. Brandt, Sel. C. C. 7 ; D. 
 
 cases cited in n. (6), supra; Mortlock v. P. 1728; Hamilton v. Clements, D. P. 
 
 BuUer, 10 Ves. 292 ; Maddeford v. Aust- 1766 ; Small v. Attwood, Yo. 407. 
 
 [275] 
 
424 
 
 OF AN INADEQUATE CONSIDERATION. [CH. VII. § I. 
 
 such agreement,(a) but if the vendor be of feeble intellect and 
 is without protection in the transaction, the sale at an inade- 
 quate price could not stand. (6) To set aside a conveyance, 
 there must be an inequality so strong, gross, and manifest, that 
 it must be impossible to state it to a man of common sense, 
 without producing an exclamation at the inequality of it.(c) 
 The court proceeds on fraud ; (c^) but the basis must be gross 
 
 (a) "Willis V. Jernegan, 2 Atk. 251. 
 [Referring to the language of the text Mr. 
 Justice Story said : " But this language, 
 if maintainable at all, requires many qual- 
 ifications, for, if a person is of a feeble 
 understanding, and the bargain is uncon- 
 scionable, what better proof can one wish 
 of its being obtained by fraud, or imposition, 
 or undue influence, or by the power of the 
 strong over the weak ? " 1 Story Eq. Jur. 
 § 236 ; Malin v. Malin, 2 John. Ch. 238 ; 
 Blackford v. Christian, 1 Knapp, 77. "It 
 is obvious," says the same learned author, 
 " that weakness of understanding must 
 constitute a most material ingredient in 
 examining whether a bond or other con- 
 tract has been obtained by fraud, or impo- 
 sition, or undue influence ; for, although 
 a contract made by a man of sound mind 
 and fair understanding may not be set 
 aside merely from its being a rash, im- 
 provident, or hard bargain ; yet if the 
 same contract be made with a person of 
 weak understanding, there does arise a 
 natural inference, that it was obtained by 
 fraud, or circumvention, or undue influ- 
 ence." 1 Story Eq. Jur. § 235 ; Bunch v. 
 Hurst, 3 Desaus. 292 ; Whelan v. Whelan, 
 3 Cowen, 537 ; Whitehouse u. Hines, 1 
 Munf. 557 ; Malin v. Malin, 2 John. Ch. 
 238; Whipple v. M'Clure, 2 Root, 216; 
 Garthside v. Isherwood, 1 Bro. C. C. (Per- 
 kins's ed.) 560, 561, & notes; McCraw u. 
 Davis, 2 Ired. Eq. 618 ; Hunt v, Moore, 2 
 Barr, 105 ; Slocum v. Marshall, 2 Wash. 
 C. C. 397 ; Kennedy v. Kennedy, 2 Ala. 
 574, 606; Harding u. Handy, 11 Wheat. 
 104, 125 ; Reinecker v. Smith, 2 Harr. & 
 J. 422 ; Cruise v. Christopher, 5 Dana, 
 182. In Farnam ». Brooks, 9 Pick. 220, 
 it was said by the court : " We understand 
 
 the law to be, that no degree of physical 
 or mental imbecility, which leaves the 
 party legal competency to act, is of itself 
 sufficient to avoid a contract or settlement 
 with him."] 
 
 (b) Longmate v. Ledger, 4 De G. & J. 
 157. 
 
 (c) Gwynne v. Heaton, 1 Bro. C. C. 1 ; 
 Stephens v. Bateman, 1 Bro. C. C. 22 ; 
 Floyer v. Sherard, Amb. 1 8 ; Heathcote 
 V. Paignon, 2 Bro. C. C. 167; Spratley 
 V. Griffiths, 2 Bro. C. C. 179, n. ; Low 
 V. Barchard, 8 Ves. ,133; Underbill u. 
 Horwood, 10 Ves. 209 ; 14 Ves. 28 ; Ver" 
 ner v. Winstanley, 2 Sch. & Lef. 393; 
 MacGhee v. Morgan, Bruce v. Rogers, lb. 
 395; Darley v. Singleton, Wight. 25; 
 Evans v. Brown, lb. 102 ; Ex parte This- 
 tlewood, 1 Rose,, 290; Meredith v. Saun- 
 ders, 2 Dow, 514. 
 
 (c^) [Hardeman v. Burge, 10 Yerger, 
 202; Tripp u. Tripp, Rice Eq. 84; Sey- 
 mour V. Delancey, 3 Cowen, 445; S. C. 6 
 John. Ch. 222 ; George v. Richardson, 
 Gilmer, 231 ; M'Kinney v. Pinkard, 2 
 Leigh, 149; Gist «. Frazier, 2 Litt. 118. 
 Mere inadequacy of price is not sufficient , 
 ground for setting aside a sale, unless the 
 inadequacy be so gross as to be, of itself, 
 evidence of fraud. Osgood u. Franklin, 
 2 John. Ch. 1, 23; Seymour v. Delancey, 
 6 John. Ch. 222 ; Coles v. Trecothick, 9 
 Ves. (Sumner's ed.) 234; Moth u. A^ 
 wood, 5 lb. 845, & note (a) ; Butler v. 
 Haskell, 4 Desaus. 651 ; White v. Flora, 
 2 Tenn. 426 ; McCormick v. Malin, 5 
 Blackf 509; Park v. Johnson, 4 Allen, 
 266 ; Viele v. Troy & Boston Railroad, 21 
 Barb. 381 ; Abbott v. Sworder, 4 De G. & 
 S. 448 ; Cathcart v. Robinson, 5 Peters (U. 
 S. ), 263 ; Powers v. Hale, 25 N. H. 145 ; 
 
CH. VII. § I.] OF SALES OF REVERSIONARY INTERESTS. 
 
 425 
 
 inequality in the contract.(af) There should always be profes- 
 sional aid on each side, but if a seller refuses to employ an 
 attorney and the transaction is a fair one, it cannot be set aside 
 upon mere inadequacy. (e) 
 
 13. But a conveyance obtained for an inadequate considera- 
 tion, from one not conusant of his right, by a person who had 
 notice of such right, will be set aside, although no actual fraud 
 or imposition be proved. (/) So if advantage is taken of the 
 distress of the vendor, the sale will be set aside,(^) although the 
 purchaser may really be * put to great hazard in lawsuits about 
 the estate.(A) But an inadequate pecuniary consideration may 
 be aided by a bond fide consideration of natural love and affec- 
 tion. (t) 
 
 14. Cases of reversionary interests especially where an heir is 
 the vendor, depend upon peculiar principles.(A;) Every case of 
 
 Western Railroad Corp. v. Babcock, 6 Met. 
 346. But if the inadequacy of considera- 
 tion is of so gross a nature as to amount 
 in itself to conclusive and decisive evidence 
 of fraud, it is a ground for cancelling a 
 transaction. In such cases the relief is 
 granted not on the ground of the inad- 
 equacy of consideration, but on the ground 
 of fraud as evidenced thereby. 1 Story 
 Eq. Jur. §§ 244, 245; Osgood v. Frank- 
 lin, 2 John. Ch. 1 ; Kbit F. & M. (2d 
 Am. ed.), 187; Rice v. Grordon, 11 Beav. 
 265; Cockell u. Taylor, 15 Beav. 103, 
 115; Summers v. Griffiths, 35 Beav. 27; 
 Hardeman v. Burge, 10 Yerger, 202 ; By- 
 ers V. Surget, 19 How. (U. S.) 303; 
 Wright V. Wilson, 2 Yerger, 294 ; Bar- 
 netto. Spratt, 4 Ired. Eq. 171 ; Morriso 
 w. Philliber, 30 Missou. 1 45 ; Deaderick v. 
 Watkins, 8 Humph. 520 ; Howard v. Edg- 
 ell, 17 Vt. 9 ; Butler v. Haskell, 4 Desaus. 
 651 ; Udall v. Kenney, 3 Cowen, 590 ; 
 Gist V. Frazier, 2 Litt. 118 ; Fripp v. 
 Fripp, Rice Eq. 84 ; McKinney v. Pinck- 
 ard, 2 Leigh, 149.] 
 
 (d) Garthside v. Isherwood, 1 Bro. C. 
 C. 558 ; Stilwell v. Wilkins, Jac. 280 ; 
 [per Kent Ch. in Osgood v. Eranklin, 2 
 
 John. Ch. 24 ; 1 Story Eq. Jur. §§ 244, 
 245.] 
 
 (e) Harrison v. Guest,' the consideration 
 partly in board and lodging and consider- 
 ation misstated, but no fraud ; reversed 6 
 De G., M. & G. 424, 8 H. L. Cas. 481 ; 
 see Longmate v. Ledger, 2 Gif. 157. 
 
 (/) Evans v. Llewellyn, 2 Bro. C. C. 
 150 ; Stnrge v. Sturge, 12 Beav. 229 ; 
 [Butler V. Haskell, 4 Desaus. 651, 697 ; 
 Clitherall v. Ogilvie, 1 Desaus. 250.] 
 
 {g) Heme v. Meers, 1 Ver. 465 ; 1 Bro. 
 C. C. 176, n. ; Gould v. Okenden, 4 Bro. 
 P. C. by T. 193 ; Douglas v. Culverwell, 
 3 Gif. 251, which consider; Farguson v. 
 Maitland, Rud. Law & Eq. p. 89, pi. 1 ; 
 Pickett V. Loggon, 14 Ves. 215 ; Murray 
 V. Palmer. 2 Sch. & Lef. 474; Bowen v. 
 Kirwan, Rep. t. Sugd. 47 ; [Osgood u. 
 Franklin, 2 John. Ch. 24 ; Butler v. Has- 
 kell, 4 Desaus. 651 ; Bunch v. Hurst, 3 
 Desaus. 273.] 
 
 (h) Gordon «. Crawford, Rud. L. & 
 Eq. p. 92 ; D. P. 1730. 
 
 (t) Whalley v. Whalley, 3 Bli. 1 ; Mac- 
 neiU V. Cahill, 2 Bli. 228 ; Sugd. H. of L. 
 585, 588. 
 
 (h] 9 Ves. 243 ; 2 Pow. Cont. 181 ; 3 
 
 [276] 
 
426 
 
 OF SALES OF EEVEESIONABY INTERESTS. [CH. VII. § I. 
 
 this nature musit, however, depend on its own circumstances; 
 the courts profess not to lay down any particular rules, lest 
 devices should be framed to evade them.(i) 
 
 Wooddes, 460, s. 7 ; Gilb. Lex Prse. 291 ; 
 1 Trea. Eq. c. 11, ». 12, and n. ; 1 Bro. C. 
 C. 10 ; Nott V. HiU, 1 Ver. 167 ; 2 Ver. 
 27 ; Bemey u. Pitt, 2 Ver. 14; Ld. Ard- 
 glasse V. Muschamp, 1 Ver. 237 ; Twisle- 
 ton V. Griffith, 1 P. Wms. 310; Curwyn 
 V. Milner, 3 P. Wms. 293, n. ; Baugh ;;. 
 Price, 1 Wils. 320; Gwynne v. Heaton, 1 
 Bro. C. C. 1 ; 3emal v. Donegal, 3 Dow, 
 133 ; Blakeney v. Bagott, 3 Bli. N. S. 
 237 ; Sir J. Barnardiston v. Lingood, 2 
 Atk. 133; [Osgood v. Franklin, 2 John. 
 Ch. 1, 25 ; 1 Story Eq. Jur. § 334, et seq. ; 
 Edwards v. Burt, 2 De G., M. & G. (Am. 
 ed.) 65, note (1), and cases. InBoynton v. 
 Hubbard, 7 Mass. 112, it was decided that 
 the contract made by an heir to convey, on 
 the death of his ancestor, living the heir, a 
 certain undivided part of what shall come to 
 the heir by descent, distribution, or devise 
 
 Bar. C. R. 6. [" Courts of equity in cases 
 of this sort," says Mr. Justice Story, 
 " have extended a degree of protection to 
 the parties, approaching to an incapacity 
 to bind themselves absolutely by any con- 
 tract, and as it were reducing them to the 
 situation of infants, in order to guard 
 them against the effects of their own con- 
 duct. Hence it is that in cases of this 
 sort, it is incumbent upon the party dealing 
 with the heir, or expectant, or reversioner, 
 to establish not merely that there is no 
 fraud, but (as the phrase is) to make good 
 the bai'gain ; that is, to show that a full 
 and adequate consideration has been paid. 
 Eor in cases of this sort (contrary to the 
 general rule), mere inadequacy of price or 
 compensation is sufficient to set aside the 
 contract. The relief is granted on the 
 general principle of mischief to the pub- 
 
 is a fraud upon the ancestor, productive of lie, without requiring any particular evi- 
 
 puhlic mischief, and void as well at law as 
 in equity. See 1 Story Eq. Jar. § 343 ; 
 Poor V. Haaleton, 15 N. H. 564. But in 
 Varick v. Edwards, 1 Hoff. Ch. 383, 395- 
 405, it was declared by the assistant vice 
 chancellor, after an elaborate examination 
 of the authorities, that chancery will sup- 
 port the sale of the expectation of an heir 
 of an inheritance in real as well as per- 
 sonal estate, if made bond fide and for a 
 valuable consideration. See 2 Kent (11th 
 ed.), 475, in note; and in Pitch v. Fitch, 
 8 Pick. 480 ; Trull v. Eastman, 3 Met. 
 121, to the effect that a covenant by an 
 heir expectant, that he will convey the 
 estate which shall come to him by de- 
 scent or otherwise, is valid if made with 
 the consent of the ancestor, and for a 
 sufficient consideration, and without ad- 
 vantage being taken of the covenantor. 
 See Uimmo v. Davis, 7 Texas, 266; 
 Cribbins v. Markwood, 13 Grattan, 495 ; 
 Needles v. Needles, 7 Ohio, N. S. 432, 
 443.] 
 (I) Cole V. Gibbons, 3 P. Wms. 290; 
 
 dence of imposition, unless the contract is 
 shown to be above all exception." 1 Story 
 Eq. Jur. § 336 ; see Edwards v. Burt, 2 
 DeG., M. & G. 55 (Am. ed.), note (1). 
 " The relief is founded in part upon the pol- 
 icy of maintaining parental and quasi pa- 
 rental authority, and preventing the waste 
 of family estates. It is also founded in part 
 upon an enlarged equity, flowing from the 
 principles of natural justice, upon the equi- 
 ty of protecting heedless and necessitous ■ 
 persons against the designs of that calcu- 
 lating rapacity, which the law constantly 
 discountenances ; of succoring the distress, 
 frequently incident to the owners of un- 
 profitable reversions ; and of guarding 
 against the improvidence, with which men 
 are commonly disposed to sacrifice the fu- 
 ture to the present, especially when young, 
 rash, and dissolute." 1 Story Eq. Jur. § 
 335; see Fonbl. Eq. b. l,ch. 2, s. 12, note 
 (k) ; Gwynne v. Heaton, 1 Bro. C. C. 
 (Perkins's ed.) 10, 11, & notes; Boyntou 
 V. Hubbard, 7 Mass. 112; Osgood v. 
 Franklin, 2 John. Ch. 1, 25; Fitch v. 
 
CH. Vn. § I.] OF SALES OF REVERSIONAEY INTERESTS. 427 
 
 15. The circumstance of the heir being unprovided for, will 
 not prevail much in the purchaser's favor ; the remoteness or 
 uncertainty of the interest is not material, if the terms be un- 
 rea:sonable, nor can much stress be laid upon the purchaser 
 incurring the risk of the loss of his money, in case the heir die 
 before he come into possession ; neither will the acquiescence 
 of the seller during the continuance of the same situation in 
 which he entered into the contract prejudice him,(OT) and the 
 relief will not be denied because the heir was of mature age and 
 perfectly understood the transaction. (w) ; 
 
 16. The adequacy of the consideration is considered with ref- 
 erence to the time of the contract and not to the event, and the 
 burden lies on the purchaser in these cases to show that a full 
 consideration was paid ; (o) although the court may direct an in- 
 quiry as to the value, if it think fit.(p) 
 
 17. But transactions between a father and son are treated as 
 family arrangements, and not as dealings for reversionary inter- 
 ests ; a fair arrangement between them would be supported, 
 although made by a third party with a fraudulent intention of 
 benefiting himself. (9) 
 
 * 18. A very anxious protection is also extended by equity to 
 persons selling reversionary interests who are not heirs, although 
 certainly the same reasons do not occur in support of it.(r) 
 
 Fitch, 8 Pick. 480; Butler v. Haskell, 4 field v. Janssen, 1 Lead. Cas. in Eq. 587 
 
 Desaus. 487, 488.] [489], et seq.] 
 
 (m) Gowlaud v. De Faria, 17 Ves. 20; (9) Ld. Aldborough u. Trye, 7 Cla. & 
 
 sup. ch. .5, s. 5. Tin. 456 ; Bellamy v. Sabine, 2 Phil. 425 ; 
 
 (n) Bromley v. Smith, 26 Beav. 644. Baker v. Bradley, 2 Sm. & Gif. 531, re- 
 
 (0) Gowland v. De Faria, vM sup. ; Ev- versed, 7 De G., M. & G. 597 ; Wright v. 
 
 ans V. Griffith, Farmer v. Wardell, 17 Ves. Vanderplank, 2 K. & J. 1 ; 8 De G., M. 
 
 24 ; Medlicott v. O'Donel, 1 Bal. & Beat. & G. 133 ; Hartopp v. Hartopp, 2 Jur. N. 
 
 136 ; Kendal v. Becket, 2 Bus. & My. 88; S. 794; [21 Beav. 259 ;] Bosville v. Ld. 
 
 Addis V. Campbell, 1 Beav. 258 ; Edwards Middleton, 29 L. T. 341 ; Wakefield v. Gib- 
 
 V. Burt, 2 De G., M. & G. 55 ; King v. bon, 1 Gif. 401 ; Jenner v. Jenner, 2 Gif. 
 
 Savery, 1 Sm. & Gif. 271 ; Aff. D. P. ; 232. 
 
 Dimsdale w. Dimsdale, 3 Drew. 536 ; Har- (r) Wiseman v. Beake, 2 Ver. 121; 
 
 topp V. Hartopp, 21 Beav. 259; [1 Story Cole v. Gibbons, 3 P. Wms. 290; Baw- 
 
 Eq. Jur. § 336.] tree v. Watson, 3 My. & Ke. 339 ; Davies 
 
 (p) Heron v. Heron, 2 Atk. 160 ; Twed- v. Cooper, 5 My. & Cra. 270 ; Woodroffe 
 
 dell V. Tweddell, Tur. & Bus. 1 ; Wallace v. Allen, 1 Hay. & Jo. 73 ; Sewell u. 
 
 V. Wallace, 2 Dru. & War. 452. [As to Walker, 12 Jur. 104l. [See 1 Story Eq. 
 
 the mode of ascertaining the value of a Jur. §§ 337, 338.] 
 reversionary interest, see Earl of Chester- 
 
 [27T] 
 
428 OF SALES OF REVERSIONARY INTERESTS. [CH. VII. § I. 
 
 And although the bargain include property in possession, yet if 
 the bulk of the property is reversionary, the whole contract will 
 be set aside, (s) 
 
 19. So where a loan is effected under the mask of trading, 
 and an extraordinary rate of interest is in that way gained, the 
 court will relieve against the transaction, particularly in the case 
 of an expectant heir.(f) In the case of King v. Hamlet, the heir 
 was not relieved, although after a treaty for a loan, goods to the 
 value of 8,000^. were sold at the shop prices to an expectant 
 heir, who had sold his only immediate provision ; and a mort- 
 gage and other securities were taken as upon an actual advance 
 of 8,000Z. in money, carrying five per cent, interest from the time 
 of sale, although it was proved that where ready money was 
 paid (and here the security carrying interest was equal to ready 
 money) a rebate of five per cent was allowed in the ordinary way 
 of trade by the defendant, which would have amounted to 400/., 
 but no such allowance was made to the plaintiff, and his goods 
 were detained until the securities were perfected. The goods 
 were of course resold, and the plaintiff sustained a loss of about 
 60 per cent, upon the transaction. (m) This case was decided 
 upon grounds which may not be deemed satisfactory. 
 
 20. A bond fide sale of a reversionary estate cannot be set 
 aside, whether the vendor be an heir or not,(a;) unless fraud or 
 imposition be expressly proved, or be implied from the inade- 
 quacy of the consideration, or other circumstances attending the 
 sale ; («/) and although in the case of Gowland v. De Faria it 
 was deemed sufficient to avoid the contract, (z) that the consid- 
 
 (s) Ld. Portmore u. Taylor, 4 Sim. Taylor, 4 Sim. 182. [But it has been 
 
 182. enacted by 31 Vict. c. 4, that no purchase 
 
 (t) Barkers. Vansommer, 1 Bro. C. C. made bona fide, and without fraud or un- 
 
 149. fair dealing, of any reversionary interest 
 
 (m) 4 Sim. 231; 2 My. & Ke. 456; in real or personal estate, shall be hereafter 
 
 Sugd. H. of L. 65; 3 Cla. & Fin. 218; opened or set aside merely on the ground 
 
 Talbot V. Staniforth, 1 J. & H. 484. of undervalue.] 
 
 (x) Dews V. Brandt, Sel. C. C. 8 ; 1 (z) Gowland u. De Faria, 17 Ves. 20 ; 
 
 Bro. C. C. 6 ; Woodroffe v. Allen, 1 Hay. see the n. to 26 Beav. 164 ; Ex parti This- 
 
 &Jo. 73. tlewood, 1 Eose, 290; Ld. Portmore v. 
 
 (y) Nicols V. Gould, 2 Ves. 422 ; Taylor, 4 Sim. 182 ; Whichcote v. Bram- 
 
 Gwynne v. Heaton, 1 Bro. C. C. 1 ; Pea- ston, lb. 202, n. ; [1 Story Eq. Jur. § 
 
 cock V. Evans, 16 Ves. 512 ; Eyle u. 346.] 
 Brown, 13 Pri. 758; Lord Portmore v. 
 
CH. VII. § I.] OF SALES OF EKVERSIONARY INTERESTS. 429 
 
 eration was not equal to the calculated value in the tables, yet 
 that did not settle the law of the couit.(a) In a later case in the 
 House of Lords,(6) the authorities were reviewed, and it was 
 ruled that the question should be. Was the fair market price 
 given ? Yet in a still later case (c) the court * of appeal, revers- 
 ing a decree of Sir John Romilly's, set aside sales of reversion- 
 ary interests upon evidence which renders such purchases very 
 insecure. The opinion of an actuary was deemed unsatisfac- 
 tory. But the court observed, if previously to the sale of a re- 
 versionary interest, the vendor and purchaser concur in ascer- 
 taining from persons of competent skill, and having knowledge 
 of the property, and of all the circumstances likely to influence 
 value, a well considered estimate of what the property would be 
 likely to fetch on a sale, and act on that opinion, they were far 
 from meaning to decide that such a transaction could be after- 
 wards impeached merely because other surveyors should come 
 to a conclusion different from that on which the parties had 
 acted. The court would probably in such a case be much in- 
 clined, as a matter of fact, to believe the original and not the 
 subsequent estimate to be correct. Now no private sale could 
 probably be made under the required conditions, and indeed the 
 evidence in this very case of the two witnesses for the plaintiff 
 showed how impossible it would have been to purchase under 
 their advice, and even a purchase so completed received no 
 countenance from the court. This is much to be regretted. 
 
 21. This was the statement in the last edition of this work, and 
 in a recent case which was admitted to be a perfectly bond fide 
 one, a sale of a reversion (with some doubt whether the seller 
 was owner in fee or in tail, and whether after-born children 
 might not become entitled to a share) was set aside, after the 
 lapse of forty years, when the last of the two tenants for life 
 died, because the purchaser had not, as he ought to have done, 
 preserved abundant evidence that at the time he purchased the 
 
 (o) Peacock v. Evans, 16 Ves. 512; Fin. 436 ; Ryle u. Swindells, M'Clel. 519 ; 
 
 Scott V. Dunbar, 1 Mol. 458 ; Hincksman consider Edwards v. Brown, 2 Col. 100. 
 V. Smith, 3 Russ. 433 ; Headen v. Eosher, (c) Edwards v. Burt, 2 De G., M. & G. 
 
 1 M'CIel. & Yo. 89 ; Potts v. Curtis, Yo. 55 ; see Perfect v. Lane, 8 Jur. N. S. 547, 
 
 543 ; Newton v. Hunt, 5 Sim. 511 ; War- just published, where the purchase was 
 
 die V. Carter, 7 Sim. 490. not disturbed — a case not open to doubt. 
 
 (6) Ld. Aldborough v. Trye, 7 Cla. & 
 
 [278] 
 
430 OF SALES OF REVERSIONARY INTERESTS. [CH. VII. § I. 
 
 reversion it was of the value, and of no greater value than that 
 which he gave for it. The court considered that it was proved 
 that the value was not ascertained when the purchase was 
 made.(d) And in another case before the same learned judge, 
 after referring to the decision overruling his decree in Salter v. 
 Bradshaw, he observed, that he had erroneously proceeded, upon 
 the ground that where the transaction was bond fide on the part 
 of the purchaser of a reversion, and who had fairly endeavored 
 to ascertain, and to give the full value of the property, then that 
 the transaction would stand, although he did not strictly prove 
 that he had given the full value. But the lords justices were of 
 a different opinion, and he was quite sure that they came to a 
 right conclusion, and that the burden of proof is strictly on the 
 purchaser. In the case in which this observation was made, the 
 consideration on the face of the contract was grossly inadequate. 
 Following the opinion of the lords justices, he observed, in a 
 later case, that if the parties had agreed to take the opinion of 
 an actuary or an auctioneer upon the subject, and that he 
 should fix the price at which the purchase * should be made, the 
 transaction could not afterwards have been disturbed. (e) And 
 he observed, that he considered the present state of the law 
 practically to amount to this : that unless a purchaser gives much 
 more than the value of the reversion, it is impossible for him to 
 purchase with safety, except under a sale by auction.(/) Kthis 
 be the correct view, a court of equity interferes most injuriously 
 in its guardianship of the interests of reversioners. In the case 
 in which the observation was made, a sale of the reversion ex- 
 pectant upon a life of stocls for 370/. was set aside, because the 
 price was 30Z. less than the court considered the reversion was 
 worth, according to the conflicting evidence of eleven witnesses. 
 It was put upon mere price ; there was, the court observed, per- 
 fect bona fides on the part of the purchaser, who was an auo- 
 tioneer, upon which character no stress was laid. The seller, 
 who had not before employed him, wrote to him to say that he 
 wished him to dispose of his reversion; the price was 380/. 
 " The offer," he added, " is open to any one, even yourself." It 
 
 (d) Salter v. Bradshaw, 26 Beav. 161 ; (/) Foster v. Roberts, 29 Beav. 467 ; 7 
 28 L. J. N. S. 426. t Jur. N. S. 400 ; and see Talbot v. Stani- 
 
 (e) Foster v. Roberts, 29 Beav. 467. forth, 1 J. & H. 484. 
 
 [2T9] 
 
CH. VII. § I.] OF SALES OF REVERSI0NAI5Y INTERESTS. 431 
 
 was part of the contract, that the purchaser's firm should not 
 make any charges on the seller, and that the purchaser should 
 pay the expenses of the assignment. 
 
 . 22. Reviewing the course of the decisions upon this subject 
 for a considerable period, the writer cannot but regret that the 
 fair test, viz., the actual market value, which at one period was 
 considered the settled rule, no longer prevails ; and yet the au- 
 thorities in support of this view are many, and carry great weight 
 with them. Gowland v. De Faria, before Sir W. Grant, was 
 not strictly the sale of a reversion ; the evidence was all one way ; 
 nevertheless the decision was appealed from, and the suit was 
 compromised by the seller paying the costs, and a sum of money 
 beyond the sum decreed to him at the i'olls.(g') In earlier edi- 
 tions of this work, observations were made on the rule in ques- 
 tion, which were omitted in later ones as no longer necessary, 
 but which it appears may now properly once more form part of 
 the work: " The rule supposed to have been laid down in Gow- 
 land V. De Faria would have a strong tendency to stop altogether 
 the sale of reversions ; but as this is not possible, it would have 
 the effect of preventing the sale of reversions at their fair market 
 value. It is perfectly well known that reversions upon sales, 
 even by auction, fetch on an average only two thirds of the sum 
 at which they are valued in the tables ; according to the case of 
 Gowland v. De Faria,(A) this does not seem to operate in a pur- 
 chaser's favor, although the value of a thing is at last not to be 
 regulated by calculation, but, as it is vulgarly termed, by what it 
 will fetch. Experience * has shown that, under the most favor- 
 able circumstances, reversions will not fetch their calculated 
 value, which only allows the purchaser five per centT interest, 
 notwithstanding that his money may be locked up for many 
 years. It seems, therefore, an equity not founded on reason or 
 Convenience, which in these cases inquires the calculated value 
 of the subject of the contract, instead of its value according to 
 the well known market price. The effect of such an equity must 
 ultimately be to injure the very persons in whose favor it was 
 introduced. Reversions will never fetch their calculated value. 
 
 ig) SeethelUhed. 317, Scott p. Dun- 290; Lord Portraore v. Taylor, 4 Sim. 
 bar, 1 Moll. 458. 182 ; Whichcote v. Bramston, Ih. 202, n. 
 
 (h) See Ex parte Thistlewood, 1 E<jse, 
 
 [280] 
 
432 OF SALES OF EEVEKSIONAEY INTERESTS. [CH. VII. § I, 
 
 Fair purchasers will not dare to purchase them at their market 
 price, and consequently they will be thrown into the grasp of 
 usurers, who will give very inadequate considerations for them, 
 running the risk of a suit, in which event they will stand in as- 
 good a situation as if they had given the fair market price for 
 them. The true rule appears to have prevailed in an early case.(t) 
 A son, thirty years of age, teuant in tail in remainder expectant 
 on his father's life estate, contracted to sell it at somewhat 
 less than half of its present value when he came into possession, 
 and interest was to be paid in the mean time. The father died 
 within two years, but the court refused to relieve the son. The 
 court truly observed, that a rule that an heir should not dispose 
 of a reversion would be, that an heir should never be of age. If 
 the bargain had been to pay when possession had, that would 
 have been a purchase in possession, and on account of the great 
 undervalue bad. Had the bargain been to pay so much down 
 in present money, undoubtedly it had been good, else there was 
 an end of all sales of reversions, and a man would be tantalized 
 with having- an estate of which he could make no use. The pay- 
 ment of the interest they considered the same as buying the re- 
 version for present money paid, and the agreement could not be 
 affected by the accident of the early death of the father. That 
 was a chance on both sides, and might have happened otherwise. 
 Gowland v. De Faria has not been approved of, and later cases 
 place the doctrine upon the right footing, and the court will, in 
 estimating the value, look at the real market as well as the cal- 
 culated value, in order to ascertain whether the price be a fair 
 one. In a case in Ireland, before Hart L. C.,(k) he observed 
 that he was not satisfied at the time, nor was he then, that Gow- 
 land V. De Faria was decided on the true principles of equitj' ; 
 but the ground upon which his objection turned seems to have 
 been the length of time which had elapsed. There were, he 
 stated, material facts in that case, which do not appear in the 
 printed report, going further to disentitle the plaintiff. He was 
 not a mere expectant when he made the contract, but a man in 
 possession of a considerable income. He expected an accession, 
 but he was opulent and he was prudent, for he raised that * money 
 not to squander it, but to lay it out profitably in the improve- 
 (i) Devs V. Brandt, Sel. Cha. Ca. 7. {k) Scott u. Dunbar, 1 Moll 458 (1828) . 
 
 [281] 
 
CH. VII. § I.] OF SALES OF EEVERSIONAEY INTEKESTS. 433 
 
 meat of his estate. Sir A. Hart added, that he advised an ap- 
 peal from that decree ; and it would have been appealed from, 
 but the plaintiff submitted to a compromise. In Hineksman v. 
 Smith,(^) before Sir John Leach, master of the rolls, he observed 
 that, in Gowland v. De Faria, Sir W. Grant did not consider 
 himself as laying down a new rule, but as following the current 
 of authority, and since that case the rule had been so far regarded 
 as the settled law of the court; that although he (Sir John 
 Leach) had, upon more than one occasion, judicially questioned 
 both the principle and policy of the rule,{l^) yet it would not be- 
 come that court to make a precedent in direct opposition to it. 
 But he decided the case upon other grounds. In a case (m) be- 
 fore Chief Baron Alexander, he refused to set aside a private 
 sale of a reversionary interest, although Mr. Morgan the actuary's 
 valuation was 9281. 8s., and the price paid was only 630^., rather 
 more than two thirds of the calculated value. The learned 
 judge could not bring himself to adopt the principle laid down 
 in Gowland v. De Faria. He observed, that in the case before 
 him, the price agreed on and actually paid was in his opinion 
 the utmost that, according to every human probability, could 
 have been obtained. He did not dispute Mr. Morgan's valua- 
 tion, but the price put by the actuary can never be procured in 
 fact ; the witnesses for the defendant prove it, and it requires no 
 w^itnesses. The price set was the arithmetical value. Now, no 
 man will part with his ready money, and all the advantages 
 which the power over it confers, in exchange for a future inter- 
 est, without some compensation beyond the dry arithmetical 
 value of it. To set this bargain aside would be in effect to de- 
 cree that no valid bargain for a reversion can be made except by 
 auction ; and he did not know how any other sale of such an 
 interest could be sustained, unless judges proceeded on the same 
 principle as he did. This would be a very inconvenient restraint 
 on the power of the owners of such property. A private sale is 
 no doubt, sometimes, an imprudent exercise of that power ; but 
 in many situations, and under circumstances of no unfrequent 
 occurrence, it is wise and provident. Every case should turn on 
 its particular circumstances ; and -he thought there were none in 
 
 (l) 3 Russ. 433 (1827). (m) Headen v. Kosher, 1 M'Clel. & 
 
 {P) [See 1 Story Eq. Jnr. § 338.] Yon. 89 (1825). 
 
 VOL. I. 28 
 
434 OF SALES OF EEVEESIONAEY INTEEESTS. [CH. VII. § I, 
 
 the present case which, either according to sound sense, or to 
 any established course of precedents, affected it. In the case of 
 Potts V. Curtis,(w) the bill was to compel a transfer of some 
 stock, the reversion of which had been purchased by private con- 
 tract by the plaintiff. The purchase was made in 1812 for 5501. 
 The claim was resisted upon the allegation of inadequacy of 
 consideration. * The plaintiff examined two auctioneers to prove 
 the value. The defendant examined two actuaries, an auction- 
 eer, and a land agent ; and in the result the purchase was sup- 
 ported. This case, for the first time, fairly introduced the ques- 
 tion between the conflicting evidence ,of auctioneers and actua- 
 ries, or, in other words, between the market price of reversions, 
 and their estimated value according to the tables. Lord Lynd- 
 hurst observed that he had made a calculation as to the in- 
 adequacy. If the two calculations of Morgan and Ansell, the 
 actuaries, and the average of their results be taken on the one 
 side, and the calculations of the two witnesses for the plaintiff, 
 and the average of their results be stated on the other side, and 
 then the average of the whole, two on one side, and two on the 
 other, be taken, the result is 597^., that is, 471. more than the 
 price actually paid. It was quite clear that Sir William Grant, 
 in Gowland v. De Faria, paused a moment as to an actuary's 
 valuation ; but then, he says, ' there is nothing opposed to it ; it 
 is not questioned, but it is admitted.' He (Lord Lyndhurst) 
 took that as the basis upon which he should proceed. It was 
 equally clear, he seemed to think, a question .might arise as to 
 whether an actuary's valuation was the real value. Sir William 
 Alexander, in Headen v. Rosher, states that the sum at which an 
 actuary values a reversion never can be obtained. He (Lord 
 Lyndhurst) supposed it could not ; for why should a party choose 
 to lock up his money at the ordinary interest? Some deduction, 
 therefore, should be made on that account; but in. this case, 
 making no deduction, and taking the valuations on both sides, 
 the average is only 47/. more than the money paid for the rever- 
 sion. It was unnecessary for him to say what was the extent of 
 the inadequacy of consideration which would vitiate a contract 
 of this kind, for it did not appear to him that the consideration 
 was inadequate when the subject was fairly considered. Un- 
 
 (n) You. 543 (1832). 
 [282] 
 
CH. VII. § 1.] OF SALES OF REVEBSIONAEY INTERESTS. 435 
 
 doubtedly, in this case, Mr. Morgan and Mr. Ansell, who were 
 both actuaries, and accustomed to make calculations of this de- 
 scription with great accuracy, stated that they calculated the 
 value of this reversion at considerably more than the sum that 
 was agreed to be paid for it. This brought him (Lord Lynd- 
 hurst) to the consideration of the doctrine in Gowland v. De 
 Faria. In that case there was a calculated value, and the mas- 
 ter of the rolls, not finding that calculated value opposed by any 
 evidence, considered he was bound by it ; and the calculated 
 value being much more than the sum paid, he considered the 
 contract w^as altogether void. But he (Lord Lyndhurst) thought 
 the observations made upon that case by Sir William Alexander 
 very judicious and very proper. He says, ' Calculated value is 
 never actual value, and no person selling a reversionary interest 
 can ever expect to get the calculated value.' And his * reason 
 is extremely good and satisfactory. Sir William Alexander, 
 therefore, would have come to the conclusion probably in Gow- 
 land V. De Faria, that according to his experience, he would not 
 have been bound, as the master of the rolls conceived himself to 
 be, by the evidence of the calculated value. The master of the 
 rolls thought that the calculated value being opposed by no other 
 evidence was conclusive upon him. According to his (Lord 
 Lyndhurst's) understanding of the judgment of Sir William 
 Alexander, he would not have considered himself so bound ; he 
 would have exercised his own understanding and experience, 
 and made certain deductions from the calculated value ; but 
 in the present case they have evidence not merely of the cal- 
 culated value, but evidence independent of it. Now, the evi- 
 dence of the two most experienced witnesses on the part of the 
 defendant, those on whose judgment he should be disposed most 
 to rely, Mr. Morgan and Mr. Ansell, was, that the calculated 
 value amounted to 744/. If you deduct, according to common 
 experience, a third from the calculated value, the proportion to 
 which, as the average price obtained,(o) it would reduce the 744/. 
 to 496/., whereas the sum here contracted for amounted to 550/. 
 But the evidence, on the other side, of Mr. Fairbrother, was, that 
 it was not worth to sell more than 530/. ; the evidence of Mr. 
 Abbott, that it was not worth more than 500/. Taking, there- 
 (o) Sugd. Vend. & Purch. 239 ; [supra, p. 279, pi. 22.] 
 
 [283] 
 
486 OF SALES OF KEVEKSIONARY INTERESTS. [OH. VII. § I. 
 
 fore, the evidence of Mr. Fairbrother, and the evidence of Mr. 
 Abbott, who were both experienced persons in selling property 
 of this description, ' and contrasting that with the calculated 
 value, the estimate they put upon the property was something 
 more than two thirds of the calculated value, and something less 
 than the money actually given for the property." The writer 
 further observed that, in Newton v. Hunt, where Sir L. Shad- 
 well, V. C, relieved against a sale by private contract at an un- 
 dervalue, he said, that it was insisted that the doctrine laid down 
 in Gowland v. De Faria was overruled by the decision in Headen 
 V. Rosher. But it was observable that, in Headen v. Rosher, 
 the only evidence given by the plaintiffs was the opinion of Mr. 
 Morgan, and for reasons which the V. C. stated, little reliance 
 could be placed upon that opinion as evidence of value, whereas 
 the defendant's evidence went directly to prove that the price 
 given by him was a fair price. And there was nothing in the 
 case of Headen v. Rosher from which it could be inferred that 
 any advantages had been unduly taken of the plaintiff by the 
 defendant. That case was decided in 1825 ; and in 1827 the 
 case of Hincksman v. Smith occurred, in which Sir John Leach, 
 master of the rolls, made the observations before quoted. He 
 (the V. C.) could not, therefore, consider the judgment of the 
 C. B. in Headen v. Rosher as having set aside the authority of 
 Gowland v. De Faria, even with respect to inadequacy * of price 
 alone. Sir William Grant, however, had before him a case in 
 which the defendant did take advantage of the plaintiff's diffi- 
 culties. The decision of the case of Headen v. Rosher may be 
 capable of being referred to the grounds stated by the vice chan- 
 cellor ; but Chief Baron Alexander clearly intended to decide 
 that the market value, and not the calculated one, is the true 
 guide in these cases; and so the decision was understood by 
 Lord Lyndhurst, C. B. In a case before the vice chancellor,(jo) 
 where the interest sold was a perpetual rentcharge, which the 
 seller, although an heir, was enabled in effect to sell in posses- 
 sion, but a question arose upon value, and two actuaries for the 
 seller gave the same evidence as to value, and were contradicted 
 by two auctioneers and a surveyor for the purchaser, as to the 
 market value or price by public auction ; the vice chancellor, in 
 {p) Wardle v. Carter, 7 Sim. 490. 
 
 [284] 
 
CH. VII. § I,] OF SALES OF REVERSIONARY INTERESTS. 437 
 
 contrasting the evidence, observed, that both the actuaries, sin- 
 gularly enough, concurred in stating (probably they looked only 
 at the tables) that a sum named was the value at the time of 
 sale, but although cross-examined as to the market value, they 
 did not depose. But the other three persons spoke of the 
 market value, and two of these witnesses added, that their esti- 
 mate was made with reference to the state of the money market 
 (which was a very material circumstance) at the time of the sale, 
 which they said was a very unfavorable time for the sale of prop- 
 erty such as that in question. All the judges therefore seem now 
 to take the same view of this question, for the same point arose 
 ill Wardle v. Carter as in the other cases, viz., which is to be 
 looked at, the calculated value or the market price, and it makes 
 no difference whether the rule is applied to a reversion or to a 
 subject like a rentcharge in possession, although when the value 
 is ascertained a consideration might be deemed adequate in the 
 one case which would be inadequate in the other. In a late case 
 in the House of Lords,(^) the later authorities were fully reviewed 
 and established, so that now in such cases the question is, Was 
 the fair market price given ? But the view which the writer 
 took of the law, upon a full review of it in former editions, can, 
 as we have seen, no longer be depended upon. 
 
 23. Upon the evidence of surveyors as to value. Lord Lynd- 
 hurst observed, that he had been so long accustomed to courts of 
 justice and to evidence of that description, he had seen so much 
 of its flexible character, and its means of adapting itself to the 
 interest of the party on whose behalf the evidence is given, that 
 he placed very little reliance upon evidence of this nature.(r) 
 
 24. The rule in favor of the expectant heir cannot be applied 
 to sales of reversion by auction, and this exception applies to 
 sales of * reversions generally.(s) But if a sale by private con- 
 tract of one lot be oppressive, it may be relieved against, although 
 the lot be assigned by the same instrument with another lot sold 
 by public auction, in respect of which no relief can be granted.(<) 
 Neither does the rule apply to a sale by a father, tenant for life, 
 
 (?) Lord Aldborough v. Trye, 7 CI. (s) Shelly v. Nash, 3 Mad. 232 ; Fox v. 
 
 & Fin. 436. Wright, 6 Mad. Ill ; 7 CI. & Fin. 460. 
 
 (r) Yo. 491; Cockell v. Taylor, 15 [See 1 Story Eq. Jur. § 338.] 
 
 Beav. 103; Waters «. Thorn, 22 Beav. (t) Newton v. Hunt, 5 Sim. 511. 
 547. 
 
 [285] 
 
438 OF SALES OP EEVERSIONARY INTERESTS. [CH. VH. § I. 
 
 and his son, tenant in tail in remainder, for they form a vendor 
 with a present interest; (m) unless the son has a distinct ground 
 of relief.(a;) So where the seller had an annuity of 500^. a year 
 for the joint lives of himself and his father, remainder to his 
 father for life, with remainder to himself in fee ; a sale by him of 
 a perpetual rentcharge of 5001. was supported, as he stood in the 
 situation of a person who, if the purchaser did not make the 
 objection, might be considered as capable of selling a perpetual 
 rentcharge of 500/. a year in possession. (y) So the case of a 
 mere expectant, entirely without present enjoyment, differs from 
 the case of a man in possession, and who having the rents, bar- 
 gains with his tenant for an extension of his term, and equity 
 has no business to meddle with such a case as this more than 
 with any ordinary transaction ; one having the absolute domin- 
 ion is not bound to wait until the actual expiration of a term to 
 make a new contract, nor is that the kind of reversionary inter- 
 est which courts of equity have ever protected in this way.(2) 
 
 25. A contingency of marrying and having issue is not the 
 subject of calculation ; (a) but it must not be understood, that 
 because there is a contingency which is not strictly the subject 
 of valuation, a purchaser can sustain a purchase at an under- 
 value ; for the court will inquire into the value of such an inter- 
 est.(6) In one case,{c) where a reversionary interest depended 
 on a contingency of a death without children attaining twenty- 
 one of a married woman thirty-five years of age, who had been 
 married eight years without issue, the court valued the interest 
 as unaffected by the contingency, as the parties did not appear 
 to have attached any importance to the contingency. 
 
 26. The practice has been condemned of signing an attestation 
 of payment of the purchase money, where no money passes.{c?) 
 But a mere misstatement of the consideration would not in 
 
 (m) Wood V, Abrey, 3 Mad. 417 ; Cooke Sibbering v. Ld, Baloarras, S De G, & Sm. 
 
 V. Burtchaell, 2 Dru. & War. 165. 735. 
 
 (x) King V. Savery, 1 Sm. & Gif, S71 ; (6) Boothby v. Boothby, 1 Mac, & 6, 
 
 aff. D. P. ; [5 H. L, Cas. 627.] 604 ; 3 De G., M. & G. 212 ; Drought v. 
 
 (y) Wardle v. Carter, 7 Sim. 490, Eustace, 1 Mol. 328. 
 
 (z) Scott V. Dunbar, 1 Mol. 459. (c) Davies v. Cooper, 5 My. & Cra. 274. 
 
 (a) Baker v. Beat, 1 Bus. & My. 224 ; (d) 1 Mol. 339 ; Talbot v. Staniforth, 1 
 
 Sherwood v. Robins, 1 Moo, & Mai. 194 ; J. & H. 484; where only part is paid, see 
 
 Peto V. Hammond, 8 Jur, N, S, 550, 
 
CH. VII. § I. j SALE SET ASIDE FOR INADEQUACY : REDEMPTION. 439 
 
 itself be sufficient to vitiate a contract. False statements must, 
 however, have great weight, and there may be cases where a 
 false statement of itself * may destroy the whole transaction. (e) 
 Upon a purchase by a solicitor from his client, evidence of the 
 payment of the purchase money beyond the acknowledgment 
 in the deed and the receipt indorsed was required. (/) 
 
 27. We have no certain rule by which the inadequacy of a 
 consideration can be ascertained. Our law, indeed, has in one 
 instance (g) adopted the rule of the civil law ; by which no con- 
 sideration for an estate was deemed inadequate which exceeded 
 half the real value of the estate.(A) ■ 
 
 23. If a bill for relief be delayed for a great length of time,(i) 
 which may not be ruled by the statute of limitations,(A;) or the 
 vehdor, with full notice of all the circumstances, and of his 
 right to set aside the contract, confirm the purchase,(Z) equity 
 will not relieve against the sale, although the aid of the court 
 could not originally have been withheld. (Z^) 
 
 29. Where a sale is set aside on account of the inadequ&cy 
 of the consideration, it is upon the principle of redemption, and 
 the conveyance will stand as a security for the principal and 
 interest, at five per cent, and even costs ; (m) but not the costs 
 
 (e) Bowen v. Kirwin, Llo. & Go. t. S. .549 ; Baugh v. Price, l Wils. 320 ; Morse 
 
 66, 67 ; Gibson v. Russell, 2 Yo. & Col. C. v. Royal, 12 Ves. 355 ; Roche u. O'Brien, 
 
 C. 104; Ahearneu. Hogan, Dru. 310. 1 Bal. & Beat. 330; sup. ch. 5, s. 5; [1 
 
 (/) Gresley v. Mousley, 1 Giff. 451, 4 Story Eq. Jur. § 345 ; Lyddon v. Moss, 4 
 
 De G. & J. 78. , De G. & J. 104 ; Stump v. Gaby, 2 De G., 
 
 (g) Duke, 177 ; infra, ch. 23 ; Baldwin M. & G. 623 ; ante, 252, & note.] 
 
 V. Rochfort, 2 Ves. 517. (P) [It has been held that, in the case of 
 
 (A) Nott V. Hill, 2 Cha. Ca. 120 ; 1 Trea. a sale of a reversion for undervalue, time 
 
 Eq. 119 ; Grotius de Jure Belli ac Pacis,\. does not begin to run against the vendor 
 
 2, c. 12, s. 12. [See Seymour w. Delancey, until the reversion falls into possession. 
 
 6 John. Ch. 222 ; Kerr F. & M. (2d Am. Salter v. Bradshaw, 26 Beav. 161. It may 
 
 ed.) 188 et seg.] be remarked that the statement of consid- 
 
 (i) Moth V. Atwood, 5 Ves. 845 ; but eration in the conveyance is not conclu- 
 
 see Roche v. O'Brien, 1 Bal. & Beat. 330 ; sive ; but any additional consideration, not 
 
 see Gresley v. Mousley, 1 Giff. 451 ; 4 De' inconsistent with the terms of the deed, 
 
 G. & J. 78 ; [Wright v. Vanderplank, 2 may be established by parol evidence. 
 
 K. & J. 1 ; 8 De G., M. & G. 133.] Clifford v. Turrell, 1 Y. & C. C. C. 138; 
 
 {k) Sibbering v. Ld. Balcarras, 3 De G. aff 'd. 9 Jur. 633 ; Nixon v. Hamilton, 2 
 
 & Sm. 735; the conveyance of 1823 seems Dru. & W. 364, 387 ; Keenan v. Haudley, 
 
 to have been a clear bar to the relief. 2 De G., J. & S. 283.] 
 
 (Z) Cole V. Gibbons, 3 P. Wms. 290; (m) Twisleton v. GrifSth, 1 P. Wms. 
 
 Chesterfield v. Janssen, 1 Atk. 301 ; 2 Ves. 310 ; Gwynne v. Heaton, 1 Bro. C. C. 1-; 
 
 [286] 
 
440 SALE SET ASIDE : ALLOWANCE TO PUBCHASER. [CH. VII. § I. 
 
 of an unnecessary reference as to value ; (w) and in a late case 
 where the consideration was grossly inadequate, the purchaser 
 had his costs up to the time of filing the bill, but the general 
 costs of the suit were thrown upon him, as he did not submit 
 to be redeemed on payment of principal, interest, and costs.(o) 
 In a case where the sale was set aside for mere and slight inade- 
 quacy of value, no costs were given on either side.(/>) The old 
 rule, therefore, is relaxed. Compound interest will not be al- 
 lowed, however long the purchaser has been kept out of his 
 money.(Q') In a case where interest had been paid on the pur- 
 chase money, the payments were considered to be payments of 
 principal and not of interest, and the seller was charged with in- 
 terest *on all the sums received by him, whether received as 
 interest or as principal. (r)(l) 
 
 30. The purchaser will be allowed for lasting and valuable 
 improvements, and will not, like a mortgagee, be charged with 
 what without wilful default he might have made.(s) 
 
 Peacock v. Evans, 16 Ves. 512 ; Bowes v. Jones v. Hubbard, 6 Munf. 261 ; i"onbl. 
 
 Heaps, 3 Ves. & Bea. 117 ; but see Nicols Eq. b. 1, oh. 2, § 13, & notes.] 
 
 V. Gould, 2 Ves. 423; Baugh v. Price, 1 (n) Boothby v. Boothby, 15 Beav. 212. 
 
 Wils. 320 ; Gowland v. Be Faria, 17 Ves. (o) St. Albyu v. Harding, 27 Beav. 1 1. 
 
 20; Morony w. O'Dea, 1 Bal. &Beat. 109; {p) Foster v. Roberts, 29 Beav. 467; 
 
 Billiard v. Gambel, Tam. 375, n. ; Wood Talbot v. Staniforth, 1 J. & H. 484. 
 
 V. Abrey, 3 Mad. 417 ; Bawtree v. Watson, (q) Gowland v. De Faria, 17 Ves. 20. 
 
 3 My. & Ke. 339 ; [1 Story Eq. Jar. § 344 ; (r) Murray v. Palmer, 2 Sch. & Lef. 474 ; 
 
 Boyd V. Dunlap, 1 John. Ch. 478, 482, 483 ; ch. 5, s. 5. [See Doggett v. Emerson, 1 
 
 Sands v. Codwise, 4 John. 536, 598, 599 ; Wood. & M. 195, 206.] 
 
 Gwynnew. Heaton, 1 Bro. CO. (Perkins's (s) S. C [See Richardson ». M'Kin- 
 
 ed ) 11, and in note ; Bernal v. Donegal, 1 son, Litt. Sel. Gas. 285 ; Craig v. Martin, 
 
 Bligh (N. S.), 594; Boynton v. Hubbard, 3 J.J. Marsh. 55; Bullock v. Beemiss, 1 
 
 7 Mass. 120 ; Wharton v. May, 5 Ves. A. K. Marsh. 434 ; Thompson v. Mason, 4 
 
 (Sumner's ed.) 27, note. But a deed Bibb, 197; Morton v. Eidgeway, 3 J. J. 
 
 fraudulent in fact is absolutely void, and is Marsh. 257 ; Witherspoon v. Anderson, 3 
 
 not permitted to stand as a security for Desaus. 245; M'Cracken v. Sanders, 4 
 
 any purpose of reimbursement or indem- Bibb, 511; Clay v. Miller, 2 Litt. 280; 
 
 nity. Sands v. Codwise, 4 John. 536, 598, Williams p. Rogers, 2 Dana, 375 ; Frink 
 
 599; Boyd v. Dunlap, 1 John. Ch. 482; i). M'Keonn, 4 J. J. Marsh. 170; Griffith!). 
 
 Depew, 3 A. K. Marsh. 180.] 
 
 ( 1 ) As to premiums of policies improperly kept on foot as against an expectant heir 
 under a fraudulent mortgage, see Pennell v. Millar, 23 Beav. 172. A purchaser of a 
 reversion taking an assignment of existing policies, and keeping them on foot at his 
 own expense, is entitled to retain them, although the sale of the reversion is set aside. 
 Foster v. Roberts, 29 Beav. 467. 
 [287] 
 
CH. VII. § I.] OF PRICE FIXED BY ARBITKATOES. 441 
 
 31. If it be agreed that the price of an estate shall be fixed by 
 a third person, and such person accordingly name the sum to be 
 paid for the estate, equity will compel a performance in specie. 
 By the civil law, also, a price was considered sufficiently certain, 
 if it was to be fixed by a person named, and such person accord- 
 ingly fixed the sum ; but it appears by the Institutes,(i) Inter 
 veteres salts abundeque hoc dtibitatur, constaretne venditio, an 
 non. But if the referee do not act fairly, or a valuation be not 
 carefully made, execution of the contract will not be compelled ; 
 especially if there be any other ground upon which the court 
 can fasten, as a bar to its aid.(M) But generally speaking, the 
 question is not what is the real value, for the parties have made 
 the arbitrator their judge in that point.(a;) In a case where the 
 witnesses for the purchaser valued the property at nearly half 
 the price fixed by the arbitrator, the court thought the valuation 
 a very high, and perhaps an exorbitant one, but did not consider 
 it to amount to evidence of fraud, mistake, or miscarriage. (j/) 
 The arbitrators may take the opinion of a third person as evi- 
 dence, but they cannot merely delegate their authority. (e) 
 
 32. If an agreement be made to sell at a fair valuation, the 
 court will execute it although the value is not fixed. (a) So in 
 the cases under railway acts. (6) And it is no objection where 
 the price of the land, &c., is fixed, that the plant, machinery, or 
 fixtures are to be taken at a valuation.(c) 
 
 (t) III. 24, 1. vide Vinnius, 674. Dare Valley E. Co. uU supra. Mis- 
 
 (u) Emery v. Wase, 5 Ves. 346 ; 8 Ves. conduct in making the valuation will 
 
 505 ; Hall v. Warren, 9 Ves. 605 ; Gourlay vitiate the award. In re Hawley, 2 De G. 
 
 V. Duke of Somerset, 19 Ves. 429 ; [post, & S. 33, affirmed p. 48 ; 2 Dart V. & P. 
 
 288, note (d).] (4th Eng. ed.) 572, 573.] 
 
 (x) Belchier v. Reynolds, 2 Ld. Ken. (2d («) Hopcroft v. Hickman, 2 Sim. & Stu. 
 
 part) 91. [See Brown v. Bellows, 4 Pick. 130; Anderson v. Wallace, 3 CI. & Pin. 
 
 179 ; Underbill u. Van Cortlandt, 2 John. 26. [See Emery v. Wase, 5 Ves. 846 ; 
 
 Ch. 339.] Underbill v. Van Cortlandt, 2 John. Ch. 
 
 (y) Collier v. Mason, 25 Beav. 200. 348, 349.] 
 
 [Where, however, the arbitrator has, upon (a) 14 Ves. 407 ; 3 De G., M. & G. 34 ; 
 
 his own showing, made a mistake, either as see Northampton Gas L. Co. v. Pamell, 15 
 
 to the subject matter of the reference, or C. B. 630. 
 
 as to the legal principle on the basis of (6) Walker v. East. C. Ey. Co. 6 Hare, 
 
 which theaward wastobemade, the award 594; see Morgan v. Milman, 3 De G., M. 
 
 may either be set aside, or referred back to & G. 24 ; 10 Hare, 279. 
 
 him. In re Dare Valley R. Co. L. R. 4 (c) Jackson v. Jackson, 1 Sm. & Gif. 
 
 Ch. Ap. 554; affirming V. C. G. L. R. 6 184; Paris Chocolate Co. v. Ciystal Pal. 
 
 Eq. 429 ; and his own evidence is admis- Cy. 3 Sm. & Gif. 119. 
 sible in explanation of the award. In re 
 
442 
 
 PRICE FIXED BY ARBITRATORS. [CH. VII. § I. 
 
 33. But where parties agree upon a specific mode of valua- 
 tion, as by two persons, one chosen by each, or by an arbitrator 
 named, or by * arbitration or a jury, unless the price is fixed in 
 the way pointed out, the court cannot enforce the performance 
 of the agreement ; (d) (1) even where the price of the house or 
 property was fixed separately, but the stock in trade was to be 
 taken at a valuation by persons named,(e) it was considered as 
 one agreement, and no valuation having been made the seller's 
 bill was dismissed. An umpire must be chosen; a nomination 
 by chance or lot is wrong, and the clerks of the attorneys are 
 not competent to bind their principals and the parties by a con- 
 sent to a nomination by lot.(/) And the arbitrators should 
 sign at the same place and time, and not at different times and 
 places, (g-) 
 
 34. Although the agreement be simply that each party shall 
 appoint a referee by a given day, yet the nomination is not 
 
 (rf) Milnes v. Gery, U Ves. 400 ; Greg- Story, 800 ; Smith v. Boston, C. & M. 
 
 ory V. Mighell, 18 Ves. 328 ; Gourlay v. Eailroad, 36 N. H. 487 ; Scott v. The Cor- 
 
 Duke of Sc^erset, 19 Ves. 429 ; Morgan poration of Liverpool, 3 De G. & J. 334 ; 
 
 V. Milman, 3 De G., M. & G. [(Am. ed.)] March v. Eastern Eailroad, 40 N. H. 571 ; 
 
 24, [note (2), and cases cited]; Cooth «. Copper w. Wells, Saxton (N.J. ), 10; King 
 
 Jackson, 6 Ves. 34 ; Prltchard v. Ovey, 1 J. v. Howard, 27 Miss. 21 ; Vickers v. Vick- 
 
 & W. 396 ; Hamilton v. Dunsford, 6 Ir. C. ers, L. R. 4 Eq. 529 ; Richardson v. Smith, 
 
 Rep. 412; Tillett v. Ch. Cross Bridge Co. L. R. 5 Ch. Ap. 648; The South Wales 
 
 26 Beav. 419. [In Gourlay v. The Duke Railway Co. v. Wythes, 5 De G., M. & G. 
 
 of Somerset, 19 Ves. 429, Sir William 885-887.] 
 
 Grant says: " There is no instance of a (c) Darby w. Whitaker, 4 Drew. 134; 
 
 plaintiff seeking the interposition of the Tillett v. Char. Cross Bridge Co. 26 Beav. 
 
 court and obtaining it, who has been held 419. [But injlichardson v. Smith, 39 L. 
 
 entitled to have any part of his relief J. Ch. 877 ; 19 W. R. 81, where there was 
 
 administered to him through the medium a contract for the sale and purchase of » 
 
 of a reference, compulsory on the other mansion house and estate for a fixed sum, 
 
 party." A bill seeking that would be pro and it was agreed that part of the fiirni- 
 
 ianto a " bill to enforce the specific perform- ture and chattels should be taken at a 
 
 ance of an agreement to refer to arbitra- valuation, specific performance was decreed 
 
 tion, a species of bill that has never been notwithstanding the parties were unable to 
 
 entertained." The cases cited above and agree as to the valuation of the chattels.] 
 below conform to this view. See 1 Dan. (/) Greenwood a. Titterington, 9 Ad. 
 
 Ch. Pr. (4th Am. ed.) 670, 671, & cases in & El. 699. 
 notes ; Tobey v. County of Bristol, 3 {g) Wade v. Dowling, 4 E. & B. 44. 
 
 (1) The same rule is adopted in the Code Napoleon, Code Civil, liv. 3, tit. 6, ch. 1, 
 B. 1592. After stating that the price ought to be fixed by the parties, it adds : "II 
 peut cependant 6tre laiss^ k I'arbitrage d'un tiers : si le tiers ne veut ou ne peut faire 
 I'estimation, il n'y a point de vente." 
 
 [288] 
 
CH. VII. § I.] ACQUIESCENCE, ETC. : NEW POWERS. . 443 
 
 complete unless the appointment is communicated to the other 
 party within the time.(/t) 
 
 35. If the instrument assume that the award shall bind the 
 parties personally, the death of one of them before the award 
 will of course be a countermand of the submission at law, and 
 equity cannot enforce the contract.(t) So if the arbitrators are 
 named, and one party refuses to execute the arbitration bond, as 
 it is not certain that any award will ever be made, equity will 
 not interfere. (A)(1) So that neither of the parties to such an 
 agreement can be compelled to nominate an arbitrator under the 
 agreement ; (/) but an action will lie for a refusal to refer accord- 
 ing to a contract. (»i) 
 
 36. But where the seller and purchaser mutually agreed to 
 refer the price to a third person named in the agreement, and 
 the seller covenanted for herself and her heirs to surrender the 
 estate to the purchaser, and the purchaser covenanted for him- 
 self, his executors, * &c., to pay her the money, the agreement 
 was enforced, although the seller died before the award, because 
 the court said this was an agreement to be executed by the par- 
 ties or their representatives, and not an authority to be deter- 
 mined by their deaths, (re) 
 
 37. A party may bind himself by acquiescing in an award not 
 made in the manner required. (o) And if the seller prevent the 
 valuation from being made by referees named, he will not be 
 allowed to avail himself of his own wrong. The court would 
 compel him to permit the valuation to be made according to the 
 contract.(;?) And if a party having agreed to sell at a price to 
 be fixed by referees who are named, without cause revoke his au- 
 thority before the price is fixed, equity will not interfere byinjunc- 
 
 (A) Tew </. Harris, H Q. B. 7. Even (/) Agar w. Macklew,2 Sim. & Stu. 154. 
 
 this construction would not effect in many (m) Livingston v. Ralli, 1 Jur. N. S. 
 
 cases the object which the court had in 594. 
 
 view. Thomasu. Fredericks, 10 Q.B. 775. (n) Belchier t/. Reynolds, 2 Ld. Ken. 
 
 (i) Blundell v. Brettargh, 17 Ves. 232; 2d part, 87. 
 
 6 Ves. 34. (o) 17 "Ves. 241. 
 
 {k) Wilks V. Davis, 3 Mer. 507 ; Dalyw. {p) Morse u. Merest, 6 Mad. 26. 
 Duggan, 1 Ir. Eq. E. 311. 
 
 (1) Eor the new powers given to arbitrators appointed by rule of court or the like, 
 see 3 & 4 Will. 4, c. 42, ss. 39, 40, 41 ; 17 & 18 Vict. c. 125, England ; 3 & 4 Vict. c. 
 105, ss. 63, 64, 65, Ireland; British Empire Ship. Co. v. Somes, 3 K. & J. 433. 
 
 [289] 
 
444 ARBITRATORS : NEW POWERS. [CH. Vll. § I. 
 
 tion to prevent the purchaser from taking possession or the like 
 under the agreement, as the plaintiff acted against good iaii,h.{q) 
 
 38. These rules are now subject to the legislative aids to arbit- 
 raments furnished by the common law procedure act, 1854. If 
 the reference is to be to a single arbitrator, and the parties after 
 differences have arisen do not concur in the appointment of an 
 arbitrator, or if any arbitrator refuse to act, or become incapa- 
 ble of acting, or die, and the terms of the docurnent do not show 
 that it was intended such vacancy should not be supplied, and 
 the parties do not appoint a new one, or if two parties or arbi- 
 trators, having power, do not appoint an umpire or third arbi- 
 trator, or if any umpire or third arbitrator refuse to act, and the 
 terms of the document do not show that it was intended such 
 vacancy should not be supplied, and the parties or arbitrators do 
 not appoint a new one, then, after notice and default, any judge 
 of the superior courts of law or equity may appoint an arbitra- 
 tor, umpire, or third arbitrator, who is to have the like power as 
 if he had been appointed by consent of parties ; (r) but this 
 provision has been held not to apply to a case where, without 
 there having been any dispute upon the subject between the 
 parties, the agreement referred it to two valuers to fix the price 
 of the property sold, and they in case of difference were to ap- 
 point an umpire, but although they did differ they could not 
 agree upon an umpire.(s) Although the arbitrators fix the price, 
 yet if they misconduct themselves in making the valuation, 
 equity will not decree a specific performance of the contract.(<) 
 
 39. Where the reference is to two arbitrators, either party 
 may * appoint a new arbitrator in case of death, refusal to act, 
 or incapacity of his arbitrator, unless the document show that it 
 
 (?) Pope V. Ld. Duncannon, 9 Sim. w. Avery, 5 H. L. Cas. 81 1 ; for how far the 
 
 177 ; Harcourt v. Ramsbottom, 1 J. & W. jurisdiction of the courts may be ousted, 
 
 511; Morris v. Timmins, 1 Beav. 411. Scottw.Corp. of Liverpool, 3 DeG.& J. 334. 
 
 [But if an agreement be made, sub- (s) Collins v. Collins, 26 Beav. 306; 
 
 ject to a condition that the price thereof [Bos v. Helsham, L. E. 2 Exch. 72.] 
 
 shall be afterwards ascertained by the {t) Don v. Lippman, 5 CI. & Fin. 1 ; 
 
 parties, and one of the parties die without Sugd. H. of L. 74. [A valuation at an 
 
 any price being agreed upon, such agree- inadequate price, without other proof of 
 
 ment is too incomplete and uncertain to fraud or collusion on the part of the val- 
 
 be carried into execution by a court of uers, will not prevent a decree for specific 
 
 equity. Graham v. Call, 5 Munf. 396.] performance. Weekes v. Gallard, 21 L. 
 
 (r) 17 & 18 Vict.c. 125, s. 12; see Scott T. N. S. 655 — E.] 
 [290] 
 
CH. Vn. § I.] ARBITRATORS : UMPIRE : AWARD. 445 
 
 was intended the vacancy should be supplied ; and in case of de- 
 fault by either party in appointing an arbitrator, either originally 
 or by substitution, the other party, after notice, may appoint his 
 arbitrator to act as the sole one, provided that the court or a 
 judge may revoke such appointment on such terms as shall seem 
 just.(M) 
 
 40. When the reference is to two, and the terms of the docu- 
 ment do not show that it was intended there should not be an 
 umpire, or provide otherwise for the appointment of an umpire, 
 the two arbitrators may appoint an umpire at any time within 
 the period during which they have power to make an award, un- 
 less they be called upon by notice to make the appointment 
 sooner, (a;) 
 
 41. Where the award is actually made, and the contract to 
 refer is made by agreement a rule of court, yet an attachment 
 will not be granted, but the parties will be left to their remedy 
 by action under the contract, (y) Now by statute if a party to 
 an agreement to refer commence an action or suit, the court may 
 in proper cases stay all proceedings, and afterwards discharge or 
 vary the order.(2;) 
 
 42. An agreement to sell an estate, which was advertised to be 
 sold next day by auction, for 3,000Z. to be paid on a day named, 
 " and the further sum of twenty per cent, on any sum the prop- 
 erty might realize above that sum, at the sale by auction adver- 
 tised for the next day," was held to be a valid sale for 3,000?., 
 although the purchaser withdrew the estate from the proposed 
 auction, and no higher price was ever bid for it. For the latter 
 clause was held to be merely conditional in this sense, that the 
 vendor says, " If you sell it to-morrow, you must pay me twenty 
 per cent, upon the additional sum that you receive." But it left 
 it entirely in the power of the purchaser, either to sell it or not as 
 he pleased or might think fit upon that occasion ; and the prop- 
 erty not having been sold, there was nothing in the form of the 
 contract which invalidated it.(a) 
 
 (m) 17 & 18 Vict. c. 125, o. 13. {«) 17 & 18 Vict. c. 125, s. 11 ; Eussell 
 
 (x) lb. B. 14. For further provisions as v. Pellegrini, 6 E. & B. 1020. 
 
 to awards and arbitrators, see ss. 15-17, (a) Langstaff v, Nicholson, 25 Beav. 
 
 and ss. 5-10. ' 160. 
 (y) Lee v. Hemingway, 3 Nev. & Man. 
 
 860; 15 Q. B. 305, n. 
 
446 
 
 OF LOSS BY FIRE, ETC. 
 
 [CH. VII. § II. 
 
 * SECTION 11. 
 
 OF THE FAILURE OF THE CONSIDERATION BEFORE THE CONVEYANCE. 
 
 1. Purchaser to bear loss by fire, &c., after 
 
 contract. 
 
 2. Not where purchase under decree not 
 
 confirmed absolute. 
 
 3. After confirmation, liable for conse- 
 
 quences of house falling. 
 4 1 
 
 S Purchaser entitled to benefit. 
 
 5. Validity of title. 
 
 6. Wyvill V. Bishop of Exeter; presenta- 
 
 tion. 
 
 7. Deeds destroyed by fire. 
 
 8. Lives dropping in. 
 
 9. Sale for life annuity ; purchaser entitled 
 
 though life drops. 
 
 10. Necessity of payment, or tender of pay- 
 
 ment due. 
 
 11. Where seller may retain estate and pur- 
 
 chase money. 
 
 12. Sale of life annuity enforced though life 
 
 drops. 
 
 13. Seller to become tenant. 
 
 1. A VENDEE, being equitable owner of the estate from the 
 time of the contract for sale,(a^) must pay the consideration foi 
 it, although the estate itself be destroyed between the agreement 
 and the conveyance ; (a^) and on the other hand, he will be en- 
 titled to any benefit which may accrue to the estate in the in- 
 terim ; (a) although this was not always the rule.(&) But now 
 if, after the contract, and before the conveyance, the houses were 
 burned down, the loss will fall upon the purchaser,(6i) although 
 
 (a') [See ante, 175, notes; 1 Dart V. 
 & P. (4th Eng. ed.) 228.] 
 
 (a^) [McKechnie v. Sterling, 48 Barb. 
 330.] 
 
 (a) 2 Pow. Con. 61 ; 2 P. Wms. 220 ; 
 Bacon u. Simpson, 3 M. & W. 78; [1 
 DartV. & P. (4th Eng. ed.) 228, 229. 
 " This rule applies only as between the 
 parties to the contract, and cannot be ex- 
 tended so as to affect the interest of others. 
 If it could, a contract for the purchase of 
 an equitable estate would be equivalent to 
 a conveyance of it. Before the contract is 
 carried into eflFect, the purchaser cannot, 
 against a stranger to the contract, enforce 
 equities attaching to the property." Per 
 Lord Cottenham, in Tasker u. Small, 3 
 M. & C. 70. See Fox v. Eussell, 3 Sm. & 
 Gif. 242.] 
 
 (6) White V. Nutt, 1 P. Wms. 62 ; Cass 
 V. Kudell, 2 Ver. 280; 1 Bro. C. C. 157, 
 n. ; n. to Baith, Ver. [See Combs v. 
 Fisher, 3 Bibb, 340.] 
 
 (6^) [McKecbnie v. Sterling, 48 Barb. 
 330; Robb v. Mann, 11 Penn. St. 300; 
 Reed v. LukenS, 44 Penn. St. 200; Hill ;;. 
 Cumberland Valley Mutual Protection 
 Co. 59 Penn. St. 474. But where it ap- 
 peared that the defendant entered into a 
 parol agreement to purchase a house and 
 lot of the plaintiff, of which the house 
 constituted the chief value ; that the de- 
 fendant paid the amount of the agreed 
 purchase money in advance ; that by per- 
 mission of the vendor the purchaser en- 
 tered and took possession ; hut that in four 
 days, and before the contract was executed 
 by the delivery of the deed, the house was 
 destroyed by fire, and an action was 
 brought to recover back the purchase 
 money, the court held that, as no deed 
 had been given at the time of the fire, the 
 house was at the risk of the vendor ; that 
 the loss was his loss ; that the purchaser 
 was not bound to accept a deed of the 
 land only, after the destruction of the 
 
 [291] 
 
CH. VII. § II.] OF LOSS BY FIRE, ETC. 447 
 
 the houses were insured at the time of the agreement for sale, 
 and the vendor permitted the insurance to expire without giving 
 notice to the vendee.(c) (1) If, however, the vendor has before 
 the fire broken his contract, e. g. to repair or alter the property, 
 the subsequent loss will not fall on the purchaser.(rf) And where 
 the estate is leasehold, and the want of an insurance gives the 
 lessor a right to * enter for a forfeiture, the conduct of the seller, 
 in insuring only for a short period without notice to the pur- 
 chaser, may induce the court to refuse to enforce the contract 
 after the policy has expired, (e) but the case in which this point 
 was decided shows that a purchaser should himself inquire about 
 the insurance, at all events after the time appointed for complet- 
 ing the contract ; and should, if necessary, advance the money 
 tp keep the insurance on foot after that time. 
 
 house; and that he had a right to recover u. Adams, 12 W. R. 683; see Palmer v. 
 
 the purchase money, as money paid on a Goren, 25 L. T. N. S. 841.] 
 
 consideration which had failed. Thomp- {d) Counter v. Macpherson, 5 Bro. P. 
 
 son V. Gould, 20 Pick. 134. Wilde J. C. 83, a case between landlord and tenant, 
 
 .said, that even if the contract could be As to waiver of a forfeiture for not insur- 
 
 enforced in equity, " that would not affect ing, see 22 & 23 Vict. c. 35 ; Price v. Wor- 
 
 the iilaintiiPs legal rights." He admitted wood, 4 Ex. 512; Page v. Bennett, 2 Gift', 
 
 that " a different doctrine has been adopted 117. [Where land and buildings are sold, 
 
 in equity, founded on the fiction, that the vendor to possess and use the property 
 
 whatever is agreed to be done, shall be till the vendee sell it, and then to give up 
 
 considered as actually done." In Blew v. the land and buildings in as good repair as 
 
 McClelland, 29 Missou. 304, upon a state when purchased, the vendor must rebuild 
 
 of facts similai- to those in Thompson v. buildings destroyed by fire through his 
 
 Gould, supra, a like decision was made.] negligence or misconduct ; or the vendee 
 
 (c) Paine ti. Meller, 6 Ves. 349 ; Poole may deduct from the purchase money the 
 
 V. Shergold, 2 Bro. C. C. 118; Revel v. cost of rebuilding. Gibson v. EUer, 13 
 
 Hussey, 2 Bal. & Beat. 280 ; Harford v. Ind. 124. But it seems to be otherwise in 
 
 Punier, 1 Mad. 532 ; Dowson v. Solomon, case of an accidental fire. Wainscott v. 
 
 1 Drew. & Sm. 1. [Unless the vendor Silvers, 13 Ind. 497.] 
 
 agree to keep the property insured. Poole (e) Dowson v. Solomon, 1 Drew. & 
 
 Sm. 1. 
 
 (1 ) In the 2d volume of Coll. of Decis. p. 56, are the two following cases : The peril 
 of a house sold, and thereafter burnt, was found to be the buyer's, though the disposition 
 bore an obligement to put the buyer in possession, because the buyer did voluntarily 
 take possession and rebuild the house, and likewise was enfeoffed before the burning. 
 Hunter v. Wilsons. — A house bought being burnt, the lords found, that the property 
 being transferred to the buyer, by his being enfeoffed, and the keys being offered to 
 him, the accidental loss must follow the buyer, although there was a part of the 
 price unpaid, there being a difference about it, which was referred to some friends 
 to be determined, and which they had not done when the burning happened. Atchi- 
 son V. Dickson. 
 
 [292] 
 
4^8 OF LOSS BY FIBE, ETC. [CH. VII. § II. 
 
 2. But if the estate were sold before a master, and the report 
 had only been confirmed nisi, the loss would fall on the ven- 
 <^°^ ) (/) ^^^ in a later case,{g') of a purchase before the master 
 of a life interest in stock, where a dividend became due before 
 the purchaser was reported such, and the question was from 
 what time the purchaser was entitled to the income, Lord Eldon 
 asked if anything could turn upon the report not being con- 
 firmed. There was a case, he said, about a house being burned 
 down before the confirmation of the report. But if the tenant for 
 life had died the same night, must not the purchase money have 
 been paid? This is a distinction between a destruction of the 
 property by accident before the confirmation of the report and 
 the dropping of a life — an uncertain interest — for which the 
 property was held. 
 
 3. In like manner where after the confirmation of the master's 
 report nisi the house fell down and damaged the adjoining prop- 
 erty, which was made good pending the inquiry as to title, the 
 loss and the expense were held to fall upon the purchaser.(A) 
 
 4. The consequence of the rule is, that if after the contract the 
 estate be improved in the interval between the contract and the 
 conveyance, or if the value be lessened by the failure of tenants 
 or otherwise, and no fault on either side, the vendee has the 
 benefit or sustains the loss.(i) 
 
 5. Of course a specific performance where the estate is de- 
 stroyed will not be enforced unless the title be good, or the pur- 
 chaser has, previously to the accident, waived any objections 
 to it. 
 
 6. If a purchaser is guilty of delay, taking frivolous objections 
 to the title, he will not be allowed any benefit accruing in the in- 
 terval which can be separated from the estate itself. This can 
 hardly be laid down as a general rule, but it seems to be the 
 point decided in Wyvill v. Bishop of Exeter,(A) where a pur- 
 chaser of an 'advowson, who had objected to the title for several 
 years without filing a bill, but who was a defendant to a suit by 
 
 (/) £a;porte Minor, 11 Ves. 559. Vide Paramore v. Greenslade, 1 Sm. & Gif 
 
 p. 79 ; Zagury V. Furnell, 2 Camp. 240; 541. 
 
 [Eakin v. Herbert, 4 Cold. (Tenn.) 116.] (i) 1 Mad. 539, post, ch. 17. 
 
 (g) Anson v. Towgood, IJ. & W. 637. (k) 1 Price, 294. 
 
 ih) Robertson v. Skelton, 12 Beav. 260 ; 
 
CH. VII. § II.J OF LOSS BY FIKE, ETC. 449 
 
 a creditor of the seller, who had died after the contract, was 
 held not to be entitled to a vacancy occasioned by resignation, 
 although he was left at liberty to complete *his purchase when 
 the living was full. Macdonald C. B. said the result of the 
 cases on this point was, that where a purchaser has actually ac- 
 cepted a title after contract for sale, if advantage arise on either 
 side before the execution of the conveyance, as by the lapse 'of 
 a life in the mean time, a court of equity will enforce a spe- 
 cific performance without regarding which party may be ben- 
 efited or prejudiced by the accident of unforeseen events, but 
 where the title has not been accepted, the court refuses to decree 
 performance. The cases of Pope v. Root and Jackson v. Lever 
 were material, but in those the titles had been accepted. The 
 distinction between those cases is, that part of the consideration 
 had been paid or tendered in one but not in the other. In Paine 
 V. Meller, the decision turned wholly on the question, whether 
 the title had been finally accepted and the previous objection 
 abandoned before the day on which the premises contracted for 
 had been destroyed by fire. If the title had not been acquiesced 
 in, the court would not have enforced a specific performance ; but 
 if it had, they would have decreed the execution of the agree- 
 ment, notwithstanding certain objections had originally been 
 made to the title. The case of Wyvill v. Bishop of Exeter may 
 have been properly decided, and certainly the court would not 
 permit a purchaser to present to a vacancy which could not 
 afterwards be recalled unless he accepted the title, where he had 
 not already done so. But the cases do not authorize the judg- 
 ment. In Pope V. Root, a specific performance was refused, and 
 in Jackson «. Lever, the title accepted was to an estate belonging 
 to the purchaser, which was to be an additional security to the 
 seller for the annuity. Neither case however was decided upon 
 the acceptance of the title. In Paine v. Meller the decree could 
 not have been made, unless the title had been accepted before 
 the fire, because the seller had not a marketable title, and con- 
 sequently the contract could not have been enforced against the 
 purchaser if even there had been no fire, unless he had accepted 
 the title. Lord Rosslyn did not consider it necessary that the 
 title should have been accepted, and he accordingly made a com- 
 mon reference to the master to see whether a good title could be 
 VOL. I. _ 29 [293] 
 
450 
 
 OF LOSS BY FIRE, ETC. [CH. VII. § II. 
 
 made. Lord Eldon reversed that decrete, and made a special ref- 
 erence as to the fact of the acceptance of the title, nofbecause 
 he thought the contract could not be enforced in such a case un-- 
 less the title had been accepted before the accident, but because 
 in that case the purchaser would not have been bound to take 
 the title unless he had thought proper to do so. Lord Eldon 
 placed the doctrine upon the operation of the contract. As to 
 the mere effect of the accident itself, he said, no solid objection 
 could be founded upon that simply, for if the party by the con- 
 tract has become in equity the owner of the premises, they are 
 his to all intents and purposes. Lord Eldon's decision in Paine 
 V. Meller exactly accords with the doctrine of the * civil law. 
 Indeed this very case is put in the Institutes. (Z) " Oum autem 
 emptio et vendilio contracta sit, periculvm rei venditw statim ad 
 emptor em pertinet, tametsi adhuc ea res emptori tradita non sit. 
 Itaque si — aut cedes totts, vel aliqua ex parte, incendio consumpta 
 fuerint — emptoris damnum est, cui necesse est, licet rem non 
 fuerit nactus, prelium solvere." 
 
 7. If the muniments of title be destroyed by fire after the con- 
 tract, but before the conveyance, so that there is not sufficient 
 evidence of title left, the purchaser cannot be compelled to com- 
 plete the purchase, although previously to the fire the abstract 
 had been examined by his solicitor with the deeds, (m) and in 
 other respects the seller has a good title. 
 
 8. A purchaser would be entitled to any benefit accfuing to 
 the estate after the agreement, and before the conveyance: "If 
 a man had signed a contract for a house upon that land which 
 is now appropriated to the London Docks, and that house was 
 burnt, it would be impossible to say to the purchaser, willing to 
 take the land without thfe house, because much more valuable 
 on account of this project, that he should not have it."(w) So 
 if a reversionary interest is agreed to be purchased, and lives 
 drop before the conveyance, the vendee has the beuefit.(o) In- 
 deed this point flows from the decision in Paine v. Meller, and it 
 was the rule of the civil law that the purchaser should benefit 
 
 (I) III. xxxiv. 3 Puff, de Jure Naturae (n) Payne v. Meller, 6 Ves. 349. 
 
 et Gentium, 1, 5, s. 3. (o) Spurrier v. Hancock, 4 Ves. 667 ; 1 
 
 (m) Bryant v. Busk, 4 Rus. 1 ; the pur- P. Wms. 62 ; 1 Mad. 539. 
 chaser had not accepted the title. 
 
 [294] 
 
CH. VII. § II.] DEATH OF VENDOR AFTER SALE, ETC. 451 
 
 by the accretion to the estate before the conveyance ; nam et 
 commodum ejus esse debet cujus periculum est.{p) 
 
 9. It equally follows, from the general rule of equity, by which 
 that which is agreed tp be done is considered as actually performed, 
 that if a person agree to give a contingent consideration for an 
 estate, as an annuity for the life of the vendor, and the vendor 
 die before the conveyance is executed, by which event the annu- 
 ity ceases, yet the purchaser will be entitled to a specific perform- 
 ance of his contract.(5) This, we observe, is a mu6h stronger 
 case than that before discussed. There a loss was actually sus- 
 tained, and the only question was, upon whom it should fall. 
 But in this case, if performance of the agreement were not com- 
 pelled, the parties would stand in precisely the same situation as 
 before the contract ; whereas, by performing the agreement, the 
 estate is given to the purchaser, without his paying any con- 
 sideration for it. A steady adherence to principle compels the 
 court to overlook the hardship of this particular case, and the 
 doctrine rests upon high authority. 
 
 10. But if, in a case of this nature, a payment of the annuity 
 become * due before the death of the vendor, and the purchaser 
 neglect to make or tender it, he cannot insist upon a specific per- 
 formance.(r) The only case in which a purchaser cannot require 
 the assistance of equity is where he has by laches forfeited his 
 right to its aid, namely, where a payment of the annuity became 
 due, and he neglected to pay or tender it. But where the life 
 has thus dropped, the court will inquire, with some jealousy, 
 into the fairness of the transaction. The cases show that the 
 court requires a clear case for a specific performance under such 
 circumstances. (s) A purchaser of a reversion, whether on a 
 contingency or not, will, as we have seen, be entitled to his bar- 
 gain, although it fall into possession immediately after the con- 
 tract. (<) 
 
 11. In the cases just dismissed, the purchaser, by the death of 
 the vendor, obtained the estate without paying any, or only a 
 
 (p) Inst. aJi Slip. Baldwin v. Boulter, 1 Bro. C. C. 156; 
 
 (q) Mortimer v. Capper, 1 Bro. C. C. Davies v. Cooper, 5 My. & Cra. 270. 
 
 1,56 ; 3 Bro. C. C. 609 ; Wyvill v. Bp. of (s) Davies v. Cooper, 5 My. & Cra. 
 
 Exeter, 1 Pri. 292 ; Jackson v. Lever, 3 270 ; Holman u. Loynes, 4 De G., M. & 
 
 Bro. C. C. 605 ; 9 Ves. 246. G. 270; purchase by solicitor of client. 
 
 (r) Pope V. Root, 7 Bro. P. C. 184; [t] Supra, ch. 3, s. 1, pi. 39. 
 
 [295] 
 
452 vendor's eight to estate and money, [ch. vn. § ii. 
 
 nominal consideration for it. Perhaps a case may arise where 
 the vendor having received the purchase money, may, by the 
 death of the purchaser, be entitled to retain the estate also, 
 although he may not be his heir. This case was put in the ar- 
 gument of Burgess v. Wheate:(M) a purchase, and the money 
 paid by the purchaser, who dies without heir, before any convey- 
 ance. It was said, if the lord could not claim the estate, and 
 pray a conveyance, the vendor would hold the estate he has been 
 paid for, and keep the money too. Sir Thomas Clarke, in de- 
 livering his opinion, said, that he thought the lord could not 
 pray the conveyance ; to say he could was begging the question. 
 And as to the vendor's keeping both the estate and the money 
 it was analogous to what equity does in another case; as where 
 a conveyance is made prematurely, before money paid, the 
 money is considered as a lien on that estate in the hands of the 
 vendee. So where money was paid prematurely, the money 
 would be considered as a lien on the estate in the hands of the 
 vendor, for the personal representatives of the purchaser ; which , 
 would leave things in statu quo. It may be doubted, however, 
 whether this case, if it should ever arise, would be decided ac- 
 cording to Sir Thomas Clarke's opinion. Where a lien is raised 
 for purchase money under the usual equity in favor of a vendor, 
 it is for a debt really due to him, and equity merely provides a 
 security for it. But in the case under consideration, equity must 
 not simply give a security for an existing debt: it must first raise 
 a debt against the express agreement of the parties. The pur- 
 chase money was a debt due to the vendor, which upon princi- 
 ple it would * be impossible to make him repay. What power 
 has a court of equity to rescind a legal contract like this? The 
 question might perhaps arise if the vendor was seeking relief in 
 equity, but in this case be must be a defendant. If it should be 
 admitted that the money cannot be recovered, then of course he 
 must retain the estate also, until some person appear who is by 
 law entitled to require a conveyance of it.(l) 
 
 (m) 1 Black. 123 ; 4 & 5 Will. 4, c. & Sm. 394 ; Beale v. Symonds, 16 Bear. 
 23; Davall v. New Biver Co. 3 De G. 406. 
 
 (1) Upon this passage it was obserred by the court, in Wythes v. Lee, 2 Jur. N. S. 
 7 ; 3 Drew. 405, that the writer was addressing himself only to such part of the judg- 
 ment as decided that the executors had a lien. This was the object. It was not in- 
 
 [296] 
 
CH. VII. § II.] SALE OK LIFE ANNUITY. 453 
 
 12. A specific performance will be decreed of a contract for 
 sale of a life annuity, although the annuitant be dead before the 
 bill be filed, provided the contract was a continuing one at his 
 death(a;.) This is the converse of the point decided in Mortimer 
 V. Capper, and that line of cases. Leach V. C. observed, that 
 it might then be considered as the settled law of the court, that 
 if the price of property be an annuity for the life of the vendor, 
 his death before the conveyance will form no objection to the spe- 
 cific performance of the contract. The vendor agrees to sell for 
 a contingent price, and those who represent him cannot com- 
 plain that the contingency has turned out unfavorably. The 
 same principle necessarily applies to a case where the life annu- 
 ity is not the price, but is the subject of the sale. If the annui- 
 tant happens to die before the annuity is legally transferred to 
 the purchaser, the death of the annuitant can form no objection to 
 the specific performance of the contract. The purchaser agrees 
 to buy an interest of uncertain duration, and he cannot com- 
 plain that the contingency is unfavorable to him. In the case 
 before Leach V. C. the purchaser was entitled to arrears of the 
 annuity, but the annuity was charged on his own estate. The 
 vice chancellor considered the remedy to be mutual. If the 
 death of a life annuitant were to happen at such a time that a 
 purchaser in effect took no benefit under his contract, which 
 might well happen where his title was to commence at a future 
 time, there it might be made a question, whether as at the time 
 of the bill filed a purchaser could file no bill in equity, the prin- 
 ciple of mutual remedy could enable the vendor to file such a 
 bill. But here the purchaser might file a bill for the arrears, 
 although the facts of the case would not make such a bill ad- 
 vantageous to him. It was a case of mutual remedy, so as to 
 entitle the vendor to file a bill for specific performance, * and it 
 made no difference in principle that the annuity being charged 
 
 {x) Kennedy v. Wenham, 6 Mad. 355 ; Wilkinson v. Torkington, 2 Yo. & Col. 
 726 ; Strickland v. Turner, 7 Ex. 208. 
 
 tended to deny that a purchaser may have a lieu on the estate for money paid where he 
 has a right to recover back the money, but it was meant to show in the case put in Bur- 
 gess V. Wheate, that the purchaser had no right to recover back the purchase money, 
 and therefore, of course, had no lien. Vide inf. ch. 19, s. 1. 
 
 [297] 
 
454 
 
 SELLER TO BECOME TENANT, ETC. [CH. VII. § II. 
 
 upon the estate of the purchaser, he could practically satisfy his 
 demand for arrears without the necessity of a legal grant. 
 
 13. In a case where by the agreement the seller was to be- 
 come tenant of the estate from year to year, and he became 
 incapable by reason of his bankruptcy of performing that stipu- 
 lation, yet a specific performance was enforced against the pur- 
 chaser because the tenancy was from year to year, which made 
 it of no consideration.(2/) But the same rule ought to prevail 
 whatever be the length of the term agreed upon. It is a consid- 
 eration moving from the seller to the purchaser, to the benefit of 
 which the latter is entitled.(y^) 
 
 (y) Lord v. Stephens, 1 Yo. & Col. 222. 
 
 (y^) [Where a party in possession under 
 an agreement for a lease has done acts 
 which -vTould, had the lease been actually- 
 granted, have clearly entitled the lessor to 
 reenter for a forfeiture, specific perform- 
 ance at the suit of the former will be re- 
 fused. Gregory v. Wilson, 9 Hare, 683; 
 Nunn V. Truscott, 3 De G. & S. 304; 
 Lewis V. Bond, 18 Beav. 8.5. And where 
 there is a conflict of eyidence as to whether 
 there has been such a breach as will create 
 a forfeiture, or as to whether it has been 
 waived by receipt of subsequent rent, or 
 otherwise, the court in decreeing specific 
 
 performance, will direct the lease to bear 
 date prior to the alleged breach, so as to 
 give the lessor the opportunity of proceed- 
 ing by ejectment or action of covenant ; 
 the lessee being put upon an undertaking 
 to admit, in any such action, that the 
 lease was executed on the day it bears 
 date. Pain v. Coombs, 3 Sm. & G. 449 ; 
 S. C. 1 De G. & J. 34 ; Lillie v. Legh, 3 
 De G. & J. 204 ; Rankin v. Lay, 2 De G., 
 F. & J. 65; Rogers v. Tudor, 6 Jur. N. S. 
 692; Poyntz v. Fortune, 27 Beav. 393; 
 Morley v. Cluvering, 29 Beav. 87 ; Noonan 
 V. Orton, 21 Wise. 283.] 
 
CHAPTER VIII. 
 
 OF THE PARTIAL EXECUTION OF A CONTRACT, WHERE A VENDOR 
 HAS NOT THE INTEREST WHICH HE PRETENDED TO SELL ; AND 
 OF DEFECTS IN THE QUANTITY AND QUALITY OF THE ESTATE. 
 
 SECTION I. 
 
 WHERE THE VENDOR HAS NOT THE INTEREST WHICH HE SOLD. 
 
 1. Sale of lease for more years than seller 
 
 has. I 
 
 2. I 
 
 o f Substantial statement sufficient. 
 
 5. Small deficiency of term; sale good in 
 
 equity. 
 
 6. Misrepresentation. 
 
 7. Effect of suit after sale, to rectify the 
 
 lease sold. 
 
 8. Underlease sold as original lease. 
 
 9. Whether purchaser of old lease bound 
 
 to take a new one; purchaser's knowl- 
 edge. 
 
 10. Or seller to grant underlease who sold 
 
 the whole lease. 
 
 11. Where purchaser may object to liability 
 
 as assignee. 
 
 12. Rent and interest on sale of leaseholds. 
 
 13. Purchaser of freehold not bound to take 
 
 leasehold. 
 
 14. Eight of water. 
 
 15. Nor copyhold for freehold. 
 
 16. But seller selling freehold or copyhold 
 
 bound. 
 
 17. Purchaser of copyhold not bound to take 
 
 freehold. 
 
 18. Sale partly freehold and partly leasehold. 
 
 20. Seller obtaining a renewed lease after 
 
 the contract. 
 
 21. 1 Purchaser proceeding after notice of 
 
 22. ) tenure. 
 
 23. Where seller has only partial interests. 
 
 24. Reversionary interests not forced upon 
 
 purchaser of possession. 
 
 34, 
 
 36. 
 
 37. 
 
 39. 
 
 25. ) Purchaser entitled to partial interests ; 
 
 27. ) sale of fee in possession. 
 
 26. Compensation for roads not made. 
 
 28. Dale v. Lister. 
 
 29. Milliganr. Cooke. 
 
 30. Indemnity not compelled. 
 
 31. Contract upon mistake of interests. 
 
 32. Lawrenson v. Butler. 
 
 33. Parol agreement by tenant for life. 
 Sale by tenant for life, &c., not partially 
 
 enforced against purchaser. 
 Lord Eldon's opinion of purchaser's right 
 
 against seller. 
 Thomas v. Dering; right denied. 
 Remainder-man selling fee in possession, 
 
 bound. 
 Trustees selling contrary to obligation. 
 * 40. Effect of expenditure by purchaser. 
 
 41. Misrepresentation by purchaser. 
 
 42. Void lease. 
 
 43. Rights incapable of compensation. 
 
 44. Notice to purchaser. 
 
 45. Sale of advowson; charges for Queen 
 
 Anne's bounty. 
 
 46. Acquiescence by purchaser. 
 
 47. Right of common not disclosed. — Lim- 
 
 ited right, and unlimited sold.— Sheep- 
 walk represented as freehold. 
 
 48. Right to dig mines. — Easements. 
 
 49. Charge of repairs of chancel. 
 
 50. Fee-farm rent; at law. 
 
 51. Quit-rent: in equity. — Rentcharge in 
 
 equity. 
 
 52. No indemnity. 
 
 53. Quit-rents less than stated. 
 
 [298] 
 
456 WHERE SELLER HAS LESS INTEREST THAN SOLD. [CH. VIIL § I. 
 
 1. A GENERAL agreement to sell a property means a sale in fee 
 simple, and the court will not infer that a term of years only is 
 sold on account of the smallness of the price.(a) Where a 
 person sells an interest, and it appears that the interest which 
 he pretended to sell was not the true one ; as, for example, it 
 w'as for a less number of years than he contracted to sell, the 
 purchaser may consider the contract at an end, and bring an 
 action for money had and received, to recover any sum of money 
 which he may have paid in part performance of the agreement 
 for the sale ; (a^) and the vendor offering to make an allowance 
 pro tanto, will make no difference ; it is sufficient for the plaintiff 
 to say, it is not the interest which I agreed to purchase. (i) 
 
 2. But where the agreement was to sell " the unexpired term 
 of eight years' lease and good will," &c., and the unexpired term 
 was only seven years and seven months, it was held that the 
 contract did not mean the exact term of eight years unexpired, 
 neither more nor less by a single day. Any fraud or material 
 misdescription, though unintentional, would vacate the agree- 
 ment, but the purchaser might here have had substantially what 
 he agreed to purchase.(c) Where a seller with knowledge of 
 his interest sold a lease for two years longer than the actual 
 term, he was held liable in damages to the purchaser after the 
 completion of the contract, although the draft of the assignment 
 sent by him to the purchaser recited the lease. The purchaser 
 completed upon the faith of the representation, and it was held 
 that the mere fact that the plaintiff had the mecms of finding out 
 the truth, it not appearing that he had known it, did not militate 
 against the action. (</) 
 
 3. A lease described as a lease for three lives and thirty-one 
 years was satisfied by a lease for three lives and the survivor, 
 and in case all the lives should die before the expiration of 
 
 (a) Hughes v, Parker, 8 M. & W. 244. Hearn v. Tomlin, Peak, l92 ; Thomson v. 
 [See 1 Dart V. & P. (4th Eng. ed.) 104 et Miles, 1 Esp. 184 ; Mattock v. Hunt, B. 
 seq. The general presumption is that a K. 15 Feb. 1806 ; Hibbert». Shee, 1 Camp, 
 contract to convey is a contract to convey 113 ; Duffell v. Wilson, Ih. 401, inf. 
 
 a, good title. Shreck v. Pierce, 3 Clarke (c) Belvforth a. Hassel, 4 Camp. 140 ; 
 
 (Iowa), 350.] Incledon o. Watson, 2 Eos. & Ein. 841 ; 
 
 (a?-) [See Gillett v. Maynard, 5 John, goodwill of a school. 
 
 85 ; Lyon w. Annable, 4 Conn. 350 ; Put- (d) Eerrier v. Peacock, 2 Eos. & Ein. 
 
 nam II. Westcot, 19 John. 73.] 717. 
 
 (b) Earrer v. Nightingale, 2 Esp. 639 ; 
 
CH. Vra. § I.] WHERE SELLER HAS LESS INTEREST THAN SOLD. 457 
 
 thirty-one years, for so much of the term as should be unexpired 
 at the death of the survivor.(e) But where a particular described 
 the subject of sale to * be an annuity of so much, payable out 
 of the tolls of Waterloo Bridge, the court considered that the 
 purchaser would make some inquiry as to the annuity ; but as 
 the bridge act did not speak of any power to redeem the annu- 
 ities to be granted, and the annuity was made subject to redemp- 
 tion, it was held that the contract was not binding on the 
 purchaser ; and the court was of opinion, that sellers should be 
 strictly bound to disclose the real nature of the subject of the 
 contract.(/) 
 
 4. Where there was a power of reentry in the lease of the 
 property sold, in case a certain trade should be carried on, and 
 the particulars were silent as to the fact that the forbidden trade 
 was carried on upon a part of the property of little value for 
 any other purpose, the purchaser was relieved from his pur- 
 chase, although the lessor had waived the forfeiture for the time 
 past.(g-) 
 
 5. But, notwithstanding that the vendor has a different inter- 
 est to what he pretended to sell, equity will, in some cases, com- 
 pel the purchaser to take it. Although the vendor may not be 
 entitled to the estate for the number of years which he contracted 
 to sell, yet, if the deficiency were not great, equity would decree 
 a performance of the contract at a proportionable price.(A) 
 
 6. But if the number of years be considerably less than the 
 vendor pretended to sell, equity, so far from interfering in his 
 favor, will assist the purchaser in recovering any deposit which 
 he may have paid ; as where a term of six years was sold as one 
 of sixteen years, the purchase was set aside.(i) So the purchaser 
 
 (e) VignoUes v. Bowen, 12 Ir. Eq. K. Hepburn v. Auld, 5 Cranch, 278 ; 1 Story 
 
 194. Eq. Jur. § 777 ; King v. Bardeau, 6 John. 
 
 (/) Corerley v. Burrell, H. T. 1821, B. Ch. 38 ; Chinn v. Heale, 1 Munf. 63 ; 
 
 R. MS. Buck V. M'Caughtry, 5 Monroe, 230 ; 2 
 
 {g) Spunner w. Walsh, 11 Ir. Eq. R. Kent (11th ed.), 475 ; Soule w. Heerman, 5 
 
 597. Miller (La.), 358 ; Weems v. Brewer, 2 
 
 {h) Guest V. Homfray, 5 Ves. 818 ; Han- Harr. & G. 890 ; Evans v. Kingsbury, 2 
 
 ger V. Eyles, 21 Vin. Ab, (A.) pi. 1 ; 2 Eq. Rand. 120; Winne v. Reynolds, 6 Paige, 
 
 Ca. Ab. 689; 10 Ves. 305, 306; 13 Ves. 407; King v. Bardeau, John. Ch. 38; 
 
 77. [See Fonbl. Eq. b. 1, ch. 6, § 2, note Henry v. Grady, 5 B. Hon. 450.] 
 
 (e) ; ch. 3, § 9, note (t) ; ch. 2, § 7, note (i) Long v. Fletcher, 2 Eq. Ca. Ab. 5. 
 (u); Reynolds v. Vance, 4 Bibb, 215; 
 
 [299] 
 
458 PURCHASER OF EXISTING OR NEW LEASE. [CH. VIII. § I. 
 
 will not be bound, as we have seen, where the probable duration 
 of the interest is misrepresented, although it be in its nature an 
 uncertain one ; as where the property being held for life, the life 
 was represented as a very healthy one, although the sellers had 
 recently insured it at a premium exceeding the highest rate for 
 a healthy life at that age ; the seller's bill was dismissed with 
 costs, (j) 
 
 7. Where a lease was of a sugar refinery generally, and was 
 sold by the court, and the title was to commence with the lease, 
 the purchaser was held not bound to complete until the title of 
 the lessee was settled in a suit instituted by the lessors after the 
 sale, to have the lease corrected and confined to bonded sugar ; 
 and the purchaser who had accepted the title, paid the purchase 
 money into court, and obtained possession of the property, was 
 held not to be concluded by the statement in the abstract of an 
 agreement prior to the lease, for a lease of the property to be 
 used for refining sugar in bond under which the lessors claimed 
 to correct the lease.(A;) 
 
 * 8. So, if a purchaser contract for what is stated to be an 
 original lease, and it turn out to be an underlease for the whole 
 term, wanting a few days, it should seem that equity would not 
 compel the purchaser to perform the contract.(/) It is impossi- 
 ble, from the nature of the thing, to make any compensation for 
 the reversion outstanding, and yet it may become very valuable ; 
 and it is of great importance to a purchaser of a lease not to 
 have any third person stand between him and the ovi'ner of the 
 inheritance. It is assumed that in such a case no question arises 
 upon the performance of the covenants in the original lease which 
 would be repeated in such an underljease. 
 
 9. So, it is said that a purchaser of an existing lease is not 
 bound to take a new lease instead of the old one, because the 
 purchaser would become an original lessee instead of an as- 
 signee.(OT) (1) And, accordingly, where the term was repre- 
 
 (j) Brealey W.Collins, Yo. 317; Tufner fitu. Morton, 3 Jnr. N. S. 1198, where the 
 
 V. Harvey, Jac. 169 ; sup. p. 5. distinction between " derivative lease " and 
 
 (t) Bentley v. Craven, 17 Beav. 204. " underlease " is discussed. 
 {1} Law V. Urlwin, 16 Sim. 377 ; Brum- (m) Mason v. Corder, 2 Mar. 332. 
 
 (1) The point in Penmall v. Harborne, 11 Q. B. 368, was, that part of the property 
 . being underlet, the underlease was granted before the seller had obtained the original 
 lease ; but this was held not to be an objection. 
 
 [300] 
 
CH. VIII. § I.] PUECHASEB OF EXISTING OE NEW LEASE. 459 
 
 sented to be for ninety-nine years, and it was stipulated that the 
 title should commence with a lease of the 26th September, 1838, 
 and it appeared that the seller had only a derivative term three 
 days short of the original terra, and which was created on the 
 24th June, 1839, the seller's bill for a specific performance with 
 a nominal compensation was dismissed, although there was a 
 condition that any error or misstatement of the term of years, 
 or other description, should not vitiate the sale, but shoiald be a 
 subject of compensation. (w) But it has never been decided that 
 if a person having a clear title as lessee for eighty years, makes 
 another lease for sixty years, and then the underlessee sells by 
 auction the underlease for sixty years, simply describing it as a 
 lease, and subject to a condition of sale that the lessor's title is 
 not to be inquired into, and the lessor's title is perfectly good, but 
 is only a term of years, this alone would be a reason for resisting 
 specific performance.(o) And where a purchaser knew he was 
 buyipg an underlease, he was not allowed to object to his liabil- 
 ity for the nonperformance of the covenants in the original lease. 
 It was treated as a case not of title but of contract. What was 
 purchased, an original lease or an underlease? (p) Where in an 
 advertisement, and in a further paper, some houses were repre- 
 sented as producing a stated rental, and " lease " about so many 
 years, " at a moderate ground rent (501. a year)," but the pur- 
 chaser signed an agreement to take "an underlease" of the prop- 
 erty for the term mentioned, less ten days, at a net rent of 501., 
 and upon a bill filed to have the agreement delivered up on the 
 ground of fraud and misrepresentation, Wood V. C. made a 
 decree in his * favor ; this was reversed by Lord Cran worth C, 
 who said that the term ground rent was well understood, and 
 had a definite meaning.; it was the sum paid by the owner or 
 builder of houses for the use of the land to build upon, and is 
 therefore much under what it lets for when it has been built 
 upon. If, therefore, a person described property now built upon 
 as property for which he paid a ground rent of 501., and it turned 
 out that what he paid was not ground rent but something else, 
 this would be a sort of misleading of the person purchasing. 
 
 (n) Madeley v. 
 
 Booth, 
 
 2 
 
 De G. 
 
 &Sm. 
 
 (o) Darlingt 
 
 on V. Hamilton, 
 
 1 Kay, 558, 
 
 718. 
 
 
 
 
 
 per V. C. 
 
 
 
 
 
 
 
 
 
 ip) Hayford 
 
 V. Griddle, 
 
 22 Beav. 477. 
 
 
 
 
 
 
 
 [301] 
 
 
 
460 ELECTION BY PURCHASER. [CH. VUI. § I. 
 
 That, however, could not be said to be the case when the same 
 advertisement which speaks of the ground rent mentions also the 
 value of the rack-rent, for it then becomes immaterial whether the 
 charge is called ground rent or by some other name.(^) Such a 
 statement, we may observe, no doubt shows that the so-called 
 ground rent is not the rack-rent, but it does not prove that it 
 really is what is properly understood by the term ground rent ; 
 the 50/. a year, for example, was, as appears by the vice chan- 
 cellor's judgment, an improved rent, reserved by the seller, who 
 really paid the true " ground rent" for the property. The appeal 
 was dismissed without prejudice to any action which the plain- 
 tiff, the purchaser, might be advised to bring.(r) The defendant, 
 the seller, however, prosecuted his action on the I O U for 79Z., 
 which was tried before Jervis C. J. at Guildhall, and the jury, 
 after a view, found a verdict for the defendant, the purchaser. 
 Thereupon, the latter obtained out of the court of chancery the 
 79/. which he had paid in on obtaining the interim injunction, 
 and the seller repaid him the 51. which he had paid as a deposit, 
 so that the contract was in effect ultimately rescinded. 
 
 10. Generally speaking, where the seller has not the whole in- 
 terest which he sold, the purchaser may elect to take the interest 
 which the seller has, with a compensation ; (r^) yet it seems that 
 equity will not decree an underlease on an agreement to assign, 
 though it appear that the assignment cannot be made without 
 a forfeiture ; for the seller, in agreeing to assign, might intend to 
 discharge himself from covenants to which he would continue 
 liable by the underlease.(s) This is, however, a defence which a 
 vendor can seldom set up against a purchaser's claim, where the 
 purchaser chooses to accept an underlease ; for an assignee of a 
 lease almost invariably covenants to indemnify his vendor from 
 the rent and covenants in the lease, and from these covenants he 
 cannot of course discharge himself by an assignment, any more 
 than by an underlease. 
 
 [q) Bartlett v. Salmon, 1 Jur. N. S. 277 ; to convey, the vendee has an equitable right 
 
 6 De G., M. & G. 33. to an abatement out of the unpaid pur- 
 
 (r) 6 De G., M. & 6. 33. chase money for the deficiency. Barnes's 
 
 (ri) [Fry Specif. Perf. (Am. ed.) 447 et Appeal, 46 Penn. St. 350.] 
 seq. ; ante, 206, note ; 233, 234, and notes. (s) Anon. Ponbl. n. (r) ; 1 Tre. Eq. 211 ; 
 
 Where the vendor is unable to make title Mason v. Corder, 2 Mar. 332 ; consider 
 
 to his vendee for all that he 'has covenanted Bartlett v. Salmon, uhi sup. 
 
CH. Vm. § I.] HO SUBSTITUTION OF ONE ESTATE FOR ANOTHER. 461 
 
 11. Where a leasehold estate was sold with a condition that 
 the receipt for the ground rent should be considered as a waiver 
 of any forfeiture of the lease, yet as the purchaser, unless he 
 made an assignment * in time, would be liable as assignee, upon 
 a covenant to build .certain houses, an^ to leave them in repair 
 at the end of the term, it was held that he was not liable to ac- 
 cept either indemnity or compensation. (<) The lease in 1797 
 contained a covenant to build more houses within five years, 
 and to leave them in good repair at the end of the term, with a 
 clause of reentry on breach of any covenant ; but the landlord 
 had for upwards of forty years continued to receive the rent, 
 although some of the houses had not been built. The owner of 
 the lease, who had acquired his title subsequently to the breach 
 of the covenant, sold the property with a condition that the re- 
 ceipt for the ground rent should be considered as a waiver of 
 any forfeiture of the lease. It was insisted for the seller that 
 the purchaser might relieve himself from liability by assigning 
 to a pauper, and that he would enjoy without interruption till 
 the end of the term ; but the court held that the purchaser ought 
 not to be enforced to adopt any such expedient, and that he had 
 a right to the enjoyment of the property during the whole term, 
 and to be exempt from any obligation or inducement imposed 
 upon him by the state of the title or property to assign the 
 smallest part of the term for the purpose of relieving himself 
 from any responsibility, and that it was not a case for either in- 
 demnity or compensation. 
 
 12. If a contract for a leasehold estate is not carried into exe- 
 cution at the time appointed, and the vendor continues in pos- 
 session, for the time elapsed before the execution of the agree- 
 ment, in consequence of the pendency of the suit, interest will 
 be payable by the purchaser, and a rent will be set upon the 
 premises in respect of the possession of the vendor.(M) 
 
 13. But a purchaser having bought an estate of one tenure, is 
 not bound to accept it if it prove to be of another. Therefore 
 a purchaser will not be compelled to take a leasehold estate, for 
 however long a term it may be holden, where he has contracted 
 for a freehold. Even in a case where the vendor was entitled to 
 
 (f) Nouaille v. Flight, 7 Beav. 521. ton v. Browne, 14 "Ves. 144 ; Dyer v. Har- 
 
 (m) King V. Wightman, 1 Ans. 80 ; Fen- grave, 10 Ves. 505. 
 
 [302] 
 
462 NO SUBSTITUTION OF ONE ESTATE FOR ANOTHER. [CH. VIII. § I. 
 
 a term of 4,000 years vested in a trustee for him, and also to a 
 mortgage of the reversion in fee expectant upon the terra w|?ich 
 was vested in himself and forfeited, but not foreclosed ; the per- 
 sons claiming under the mortgagor of the reversion refused to 
 release, and thereupon the vendor's bill was dismissed. (x) 
 
 14. So where the seller agreed to sell the fee simple of an 
 estate, with some rights of water, and he had only a lease for 
 ninety-nine years of some of the rights, a specific performance 
 against the purchaser was refused.(^) 
 
 * 15. Neither is a purchaser compellable to accept a copyhold 
 estate in lieu of a freehold, (2) unless bound by the conditions, 
 where there is no fraud. (a) 
 
 16. But if an estate is sold as copyhold, and represented as 
 equal in yalue to freehold, it seems that the vendor will be com- 
 pelled to perform the contract, although the estate prove to be 
 actually freehold. (&) If, however, the contract for the sale of a 
 supposed copyhold, stipulate that the sale shall be void if any 
 part is freehold, the subject must be proved as described ; and 
 the circumstance of the seller himself, after the first contract, 
 selling the estate to another as copyhold, is not conclusive evi- 
 dence against him.(c) 
 
 17. Where two lots sold by the court were described as copy- 
 hold, and one turned out to be partly and the other to be wholly 
 freehold, although there was the usual condition as to mistakes 
 or errors in description, the condition was held not to apply, and 
 the purchaser not to be bound, for it was impossible to enter into 
 a consideration of the different motives which may induce a per- 
 son to prefer property of one tenure to another. The motives 
 and fancies of mankind are infinite, and it was unnecessary for 
 a man who has contracted to purchase one thing to explain why 
 he refuses to accept another.(rf) It would be unjust to make 
 the purchaser in such a case pay any additional price ; but if the 
 
 (x) 4 Bro. C. C. 497 ; 1 Ves. jr. 226 ; (o) Price v. Macaulay, 2 De G., M. & 
 
 Drewe v. Corp. 9 Ves. 368 ; Lib. Reg. G. 339. 
 
 1803, p. 290; 1 Sim. & Stu. 201, ii. ; 13 (6) Twilling v. Morrice, 2 Bro. C. C. 
 
 Ves. 78; Barton v. Ld. Downes, 1 Fla. &- 326; Browne w. Fenton, sup. p. 3; O'Kell 
 
 Ke. .505. ". Whittaker, 2 Phil. 338. 
 
 (y) Wrightw. Howard, 1 Sim. & Stn. 190. {c) Daniels v. Davison, 16 Ves. 249. 
 
 (2) Twining v. Morrice, 2 Bro. C. C. (rf) Aylesw. Cox, 16 Bear. 23. 
 326 ; Sir H. Hick v. Phillips, Pre. C. 575. 
 
 [303] 
 
CH. VIII. § I.J RENEWAL. 463 
 
 seller demanded none, it would be difficult to refuse him a spe- 
 cific performance, particularly having regard to the statutory 
 provisions for the enfranchisement of copyholds. 
 
 18. But if an estate be sold generally as partly freehold and 
 partly leasehold, and the whole property is lying within a known 
 ambit, and a question is afterwards raised by the lessors of the 
 leasehold as to the quantity of the latter, which depends upon 
 the construction of a deed and plan, which although never sub- 
 mitted to judicial decision, are not so vague as not to admit of 
 construction, the purchaser must take the title; for he cannot 
 object to the quantity of the leasehold, and therefore under any 
 construction he is bound, as he made no stipulation as to quan- 
 tity.(e) 
 
 19. If a man entitled to a fee farm rent out of an estate sell the 
 estate, subject to the fee farm rent, of course the purchaser is not 
 bound to take the fee farm rent with a compensation.(/) 
 
 20. If a seller of a leasehold under the church, usually renew- 
 able, has acquired an interest by contract with the lessors at the 
 time he * made the agreement for sale, that interest would pass 
 to the purchaser, although the contract was simply to sell the 
 leasehold. If there was no such contract, but a renewal is ob- 
 tained subsequently to the sale but before the assignment to the 
 purchaser, it seems to have been considered that the seller must 
 make the purchaser a present of the renewal, as it was com- 
 pared to the case of a seller choosing to spend money in im- 
 proving the estate after the sale.(g') But this, with reference to 
 the facts of thS case referred to, is a doubtful point. The pur- 
 chaser would clearly have a right to claim the renewed lease in 
 both the cases put, but in the latter case it would seem that 
 the purchaser, if he so elected, must pay the fine and expenses 
 of renewal ; for the usual time for renewal had arrived, and the 
 seller whilst he remained owner, could not safely let the oppor- 
 tunity slip: in the former case, yiz., where the contract for re- 
 newal existed at the time of the sale, it would depend upon the 
 terms of the agreement for sale whether the purchaser bought 
 
 (e) Monro v. Taylor, 8 Hare, 51 ; see p. tinguished as not including buildings, was 
 
 66, 71 ; 3 M. & G. 713 ; Dawson v. Brink- lost by tke subsequent agreement, 
 
 man, 3 De G. & Sm. 376 ; 3 M. & G. 53, (/) Prendergast v. Eyre, 2 Hog. 81. 
 
 where the right to have the copyholds dis- (g) Monro ». Taylor, ubi sup. 
 
 [304] 
 
464 PAETIAL INTERESTS : PUECHASEB'S RIGHT TO PART. [CH. VIII. § I. 
 
 the benefit of the contract for renewal subject to the fines and 
 fees, or purchased the whole interest at the price named, and 
 the seller himself was to pay the fines and fees. 
 
 21. If a vendee proceed in the treaty for purchase without ob- 
 jecting, after he is acquainted with the nature of the tenure, he 
 wiU be bound to complete his contract, and cannot claim any 
 compensation. Thus, where an estate was sold as freehold, 
 with a leasehold adjoining,(/j) and it turned out on examination 
 that sixty-two acres were leasehold, and only eight freehold ; yet, 
 as the purchaser proceeded in the treaty after he was in posses- 
 sion of this fact, and did not object to the nature of the prop- 
 erty, he was held to have waived the objection. 
 
 22. And if a purchaser do object to the tenure, yet if he pro- 
 ceed in the treaty, it seems that he will be compelled to take the 
 estate, on being allowed a compensation.(i) 
 
 23. Cases of much greater difficulty occur where the seller, 
 although he is interested as he represented in the entirety, has 
 but partial and different interests from those which he repre- 
 sented. In general a purchaser cannot be compelled to accept 
 such interests. 
 
 24. Thus, if the estate be represented as a fee simple in pos- 
 session, and it turn out to be only a remainder expectant upon a 
 life interest, however advanced in life the tenant for life may be, 
 the contract cannot be enforced against the purchaser.(/i;) And 
 the same observation would apply to any existing lease where 
 the purchaser has contracted for a vacant possession. (/) 
 
 * 25. But in every case where an agreement w'ould be in part 
 executed in favor of a vendor, there is much greater reason to 
 afford the aid of the court at the suit of the purchaser, if he be 
 desirous of taking the part or interest to which a title can be 
 made. And a purchaser may, in some cases, insist upon having 
 the part of or interest in an estate to which a title is produced, 
 although the vendor could not compel him to purchase it ; it is 
 true generally, but not universally, that a purchaser may take 
 
 (A) I'ordyce v. Ford, 4 Bro. C. C. 494 ; (i) Calcraft v. Roebuck, 1 Ves. jr. 221 ; 
 
 6 Ves. 670 ; 10 Ves. 508 ; Bnmell v. Brown, 1 Bro. C. C. 140. 
 
 1 J. & W. 168 ; Martyn v. Cottej, 3 J. & {k) Collier v. Jenkins, Yo. 295. 
 
 L. 496. {I) Linehan v. Cotter, 7 Ir. Eq. E. 176. 
 [305] 
 
CH. VIII. § I.] purchaser's right to part. 465 
 
 what he can get, with compensation for what he cannot have ; (m) 
 but where the seller of an estate had only a right to a sum to be 
 raised by sale of it, and the purchaser sought to have the money, 
 and also damages in respect of the seller's defect of title, the 
 court said that the purchaser takes whatever interest in the estate 
 the seller had, but the authorities giving damages in equity by 
 reason of a vendor's selling property that was not his own had 
 been reviewed of late years, and overruled. (w) This, of course, is 
 no authority against the established cases of partial performance, 
 with a compensation.(w^) If the seller assume to sell the fee in 
 possession, and do not qualify on the face of the contract the 
 interest he proposes to sell, of course leases for lives would be a 
 subject for compensation to the purchaser where they would not 
 be a sufficient ground to avoid the contract, and slight circum- 
 stances will not take away the right to compensation ; e. g. the 
 description in the contract that the property was now or late 
 in the occupation of A. B. and others ; or the usual condition 
 that upon the purchase being completed, the purchaser shall be 
 let into possession of the rents and profits of the property, for 
 those words mean ordinary rents and profits, and not merely 
 nominal rents. A purchaser's conduct may preclude him from 
 rejecting the title with a compensation, and yet not amount to a 
 waiver of his right to compensation.(o) 
 
 26. Where a seller is bound by the contract to make certain 
 roads, and is unable to perform that part of his contract, the pur- 
 chaser may require a specific performance with a compensa- 
 tion. (/?) Dower has been held a fit subject for com pensation.(Q') , 
 
 27. If, Lord Eldon observed, a man having partial interest in 
 an estate, chooses to enter into a contract, representing it, and 
 agreeing to sell it, as his own, it is not competent to him after- 
 wards to say, though he has valuable interests, he has not the 
 entirety; and, therefore, the purchaser shall not have the benefit 
 of the contract. For the person contracting under these circum- 
 
 (m) 1 Ves. &Bea. 353; Western u. lius- (y) ■Wilson v. Williams, 3 Jur. N. S. 
 
 sell,3 Ves. &Bea. 187; Wheatleyt). Slade, 810; [ante, 206, notes; Davis v. Parker, 
 
 4 Sim. 126. 14 Allen, 94; Park v. Johnson, 4 Allen, 
 
 (n) Williams v. Higden, 1 P. Coo. 500. 259 ; S. C. 7 Allen, 378 ; Presser v. Hilde- 
 
 (jji) [See ante, 233, note (n).] brand, 23 Iowa, 483; Corson u. Mulvany, 
 
 (o) Hughes V. Jones, 31 L. J. N. S. 83. 49 Penn. St. 88.] 
 
 (/>) Peacock v. Penson, 11 Beav. 355. 
 VOL. I. 30 
 
466 purchaser's right to vendor's interest. [CH. VIII. § I. 
 
 stances is bound by the assertion in his contract : and if the 
 vendee chooses to take as much *as he can have, he has a right 
 to that, and an abatement. If he contracts to sell a fee simple, 
 and has only a term of one hundred years, I have a right to that 
 term if I think £it.(r) 
 
 28. Therefore, in a case where the estate was sold for twenty- 
 one years, and represented as held under a church lease, usually 
 renewed every seven years, and it appeared that the seller was 
 only entitled for lives to part ; the py/rchaser filed a bill for a 
 specific performance with a reduction, and the decree was for 
 a specific performance with a reduction of the purchase money, 
 the interest of the seller being less valuable than it had been 
 represented to the purchaser.(s) The consequence of this decis- 
 ion was, that if the lives should endure beyond the twenty-one 
 years, the' purchaser would have the premises as well as the com- 
 pensation. - This is a remarkable case. 
 
 29. In a later case,{<) upon a sale of leasehold for lives, the 
 representation of the seller was in effect that the lessee thereof 
 upon lives, under a church lease, granted the lease in question, 
 with covenants, binding his real and personal representatives to 
 procure renewals to make the complete term sold. It appeared, 
 however, that the covenant to renew was limited, and not bind- 
 ing to the extent mentioned, the estate being in settlement, and 
 the covenant not general. In effect, the difference was between 
 a covenant by the lessor, binding all his assets, real and personal, 
 and a covenant which only bound that property which the lessor 
 might permit to go from him to his son, who would be entitled 
 to the property under the settlement. Lord Eldon decreed a 
 
 {r] 10 Ves. 315, 316, 318; Wood v. to remove certain incumbrances from an 
 
 Griffith, 12 Feb. 1818; 2 yes. jr. 439; 1 estate he bad agreed to convey free of 
 
 Wils. C. C. 44. [See McKay v. Carring- tbem, is erroneous, if it appears that he 
 
 ton, 1 McLean, 64 ; Waters v. Travis, 9 had no control over the parties from whom 
 
 John. 450, 464, 465 ; Voorhees K.De Meyer, releases must be obtained. Such decree 
 
 2 Barb. 37 ; Hepburn u. Auld, 5 Cranch, should direct a reference to ascertain and 
 
 262 ; Chinn v. Heale, 1 Munf. 63 ; Wester- discharge the amount of such of the incum- 
 
 velt V. Matheson, 1 Hoff. Ch. 37 ; Morss brances as can be discharged. Jerome v, 
 
 V. Elmendorf, 11 Paige, 277; Jones v. Scndder, 2 Rob. (N. T.) 169.] 
 Shackleford, 2 Bibb, 411 ; Fisher v. Kay, (s) Dale v. Lister, 16 Ves. 7 ; Hanbury 
 
 2 Bibb, 434; Step v. Alkine, 2 A. K. «. Litchfield, 2 My. & Ke. 629. 
 Marsh. 259 ; Jerome v. Scudder, 2 Bob. (N. (t) Milligan v. Cooke, 16 Ves. 1 . 
 T.) 169. But a decree requiring the vendor 
 
 [306] 
 
CH. VIII. § I.] REMEDY AGAINST TENANT FOE LIFE. 467 
 
 specific performance upon the purchaser's bill, with an abatement 
 for the diflference in value between the covenants as represented 
 and as they existed, or an indemnity ; but although this decree 
 was affirmed upon a rehearing, and notwithstanding the great 
 authority of the judge, the case can hardly be deemed an au- 
 thority. In a case,(M) where the leasehold part of a lot was 
 stated to be customary leasehold 'of a manor, renewable every 
 twenty-one years, on payment of the customary fine, at the an- 
 nual rent of 10/., and there was no such custom to renew, the 
 purchaser obtained a specific performance with compensation, 
 
 30. Lord Eldon himself laid it down that the court can neither 
 compel a purchaser to take an indemnity nor a vendor to give 
 it.(a;) And where, by an agreement, the title was to be made 
 out to the satisfaction of a person named, upon a general refer- 
 ence to arbitration, which was to settle all questions between the 
 parties, and the arbitrator awarded the seller to convey to the 
 purchaser the title contained * in the abstracts, and the seller to 
 execute a bond of indemnity to the purchaser, to secure him 
 against eviction by reason of any defect in the title, the award was 
 set aside as not being final, and being an excess of authority. (2/) 
 
 31. Where, at the time of the contract, the purchaser is fully 
 aware that the vendor cannot execute the agreement, and, con- 
 sequently, cannot enforce the performance of it; the agreement 
 must be presumed to have been executed under a mistake, and 
 the purchaser cannot insist upon a performance as to the interest 
 to which the vendor may be actually entitled. (z) 
 
 32. And in a case where a tenant for life, with a power of leas- 
 ing for twenty-one years at a rack-rent, agreed to execute a lease 
 for twenty-one years, and a further lease for twenty-one years at 
 any time during his life, consequently to execute a lease for 
 twenty-one years, whatever might be the increased value of the 
 property at the time the lease should be granted ; Lord Redes- 
 dale considered it a contract to act in fraud of the power, and 
 that the lessee was not entitled to a specific performance. And 
 the lessee's offer to take a renewed lease for twenty-one years, 
 
 (u) Newby v. Paynter, 11 Hare, 26 ; 17 (y) Eoss v. Boards, 3 Nev. & Per. 382. 
 Jur. 483 ; Painter v. Newby, 1 Eq. R. 173. (2) Lawrenson v. Butler, 1 Sch. & Lef. 
 
 (x) Balmanno v. Lumley, 1 Ves. & Bea. 13 ; Mortlock v. Buller, 10 Ves. 292 ; Col- 
 225 ; Paton v. Brebner, 1 Bli. 66, infra. yer v. Clay, 7 Beav. 189. 
 
 [307] 
 
468 REMEDY AGAINST TENANT FOE LIFE. [CH. VIII. § I. 
 
 if the lessor should so long live, was rejected. (a) Lord Redes- 
 dale thought that satisfaction in the form of damages was an 
 adequate remedy. If he had been put into a situation from 
 which he could not extricate himself, the defendant might be 
 called on to make the best title in his power ; but nothing could 
 be more mischievous than to permit a person who knows that 
 another has only a limited power to enter into a contract with 
 that other person, which, if executed, would be a fraud on the 
 power, and when that was objected to, to say, " I will take the 
 best you can give me.''(a^) It should be observed that there 
 was another point in the above cause, and the decree was pro- 
 nounced after considerable doubts. It seems difficult to recon- 
 cile the opinion expressed by Lord Redesdale with the current of 
 authorities. It was not a necessary consequence of the contract 
 that the lease agreed to be granted would be a fraud on the 
 power, and the purchaser was willing to take the interest which 
 the seller was enabled to grant without risk to himself or injury 
 to the remainder-men. 
 
 33. In a case (b) before V. C. Stuart, where, upon a parol 
 agreement for a lease with possession, the tenant asked for a de- 
 cree only against the tenants for life, he observed that there was 
 no case in which the court had ever made a decree for a lease 
 merely to bind the tenants for life where the parol agreement 
 affected to bind those in remainder. It would, he added, be im- 
 possible to make such a * decree in the case before him without 
 affecting the interests of the remainder-men. There was an im- 
 mediate power of sale in the trustees, which might be exercised 
 during the lives of the tenants for life. When it was exercised 
 it would have an immediate effect on the estates and interests 
 of those entitled in remainder, and the amount of rent and other 
 stipulations were material ingredients as affecting the price 
 which is to constitute the capital ultimately divisible amongst 
 the remainder-men. If the power of sale, which was not proba- 
 ble, would overreach the estates for life and the leases granted 
 by the tenants for life, there would have been no objection to a 
 partial execution of the contract. If the consent of the tenants 
 
 (a) Harnet v. Yielding, 2 Sch. & Lef. {b) Ti-otman v. Flesher, 3 Giff. 1. The 
 549. claimant of the lease was the solicitor of 
 
 (a-) [Graham v. Hendren, 5 Munf. 183.] the tenant for life. 
 
 [308] 
 
CH. VIII. § I.] SALE BY TENANT FOE LIFE AS OWNER OF THE FEE. 469 
 
 for life were required, they could give no such consent in deroga- 
 tion of their own grant, and the trustees would not have been 
 justified in exercising their power incumbered with leases, which 
 reduced the value of the estate. But irrespective of any power 
 of leasing, a tenant for life may grant a lease for his own life, 
 and can afterwards do no act to defeat it, nor could trustees de- 
 feat it by an exercise of a power of sale to which his concurrence 
 was required. 
 
 34. Where an estate is in strict settlement, a tenant for life, 
 with, for example, an ultimate remainder in fee, selling, as the 
 owner of the fee, to a person ignorant of the state of the title, of 
 course could not compel the purchaser to take his partial interest 
 with a compensation. 
 
 35. And we have seen that if such a person contract to sell, 
 not as owner, but merely as agent for the trustees, and the con- 
 tract could not have been enforced against the trustees, it cannot 
 be carried into execution against the tenant for life, although by 
 the happening of events he himself has become entitled to the 
 fee in possession. (c) 
 
 36. But the rule laid down by Lord Eldon, which has already 
 been referred to,. was intended to express his opinion that where, 
 in such a case, the tenant for life was the party really contract- 
 ing, he was bound, at the election of the purchaser, to convey to 
 him all the interest he had in the estate at a proportionate price, 
 
 37. This, however, was ruled otherwise in a case at the rolls,(rf) 
 where the tenant for life under a settlement, with full knowledge 
 of the nature of his title, entered into a contract for sale of the 
 estate as owner by letters to a purchaser who was ignorant of 
 the title, and then desired to withdraw from the contract, and the 
 trustees, in whom a power of sale was vested, refused to adopt 
 the contract ; the purchaser required the seller to convey to him 
 his estate for life, which was without impeachment of waste, 
 and his reversion in fee * after an estate tail in his son, but this 
 was refused. There is no doubt great difficulty in these cases ; 
 but in the case just referred to, no circumstance existed on the 
 part of the purchaser upon which relief could be refused to him 
 
 (c) Mortlock V. Buller, 10 Ves. 292; ham v. Oliver, 3 Beav. 124; Wilson v 
 s^p. p. 216. Williams, 3 Jur. N. S. 810. 
 
 {d) Thomas t>. Bering, 1 Ke. 729 ; Gra- 
 
 [309] 
 
470 SALE BY TENANT FOR LIFE AS OWNER OF THE FEE. [CH. VIII. § I. 
 
 against the seller. It was not denied that the seller was bound 
 by the contract, and he took advantage of the state of the title 
 to avoid the specific performance of a contract which he had 
 entered into with full knowledge that he could not bind the whole 
 fee, although the purchaser was not aware of the circumstance, 
 and the seller even concealed for a time the objection made by 
 the trustee to adopt the sale. Nor if the seller, according to the 
 general rule, was bound to convey what interests he could at a 
 proportionate price, did the difBculty of valuing those interests 
 afford any solid objection to the relief. The estate for life was 
 without impeachment of waste, and the purchaser, no doubt, 
 might sell the timber, but the court ought not, it is conceived, in 
 such a case, to look at the interests of the tenant in tail, nor in- 
 deed could it protect them ; for the tenant for life might fell the 
 timber, or sell his life estate, with the right to cut it the next 
 hour, and equity could not refuse to perform such a contract, 
 however injurious it might prove to the tenant in tail. Indeed, 
 in this case, the timber was not of large value, and the tenant 
 for life, pending the suit, employed workmen to cut it, although 
 of course he was stopped by injunction upon the purchaser's ap- 
 plication. If a tenant for life bond fide apprehending that the 
 trustees of the settlement will adopt his contract, sell, meaning 
 only to concur in a sale of the fee, that might be a good defence 
 in equity against a partial execution of the contract by the ten- 
 ant for life alone. But such sales, where the settlement is con- 
 cealed, deserve no favor, for there is no mutuality ; the trustees, 
 by their election, may force the purchaser to complete, although 
 he cannot compel them to join, and they are too frequently mere 
 instruments in the hands of the tenant for life, who procures 
 them to concur in the sale or reject it, just as best suits his own 
 views. In a still later case,(e) upon a purchase of a house, &c., 
 for 650Z., the purchaser entered into possession, paid for the fix- 
 tures, and taking subject to a mortgage, paid also the residue of 
 the purchase money, and upon a bill filed by him for a specific 
 performance, it appeared that no title could be made to one 
 fourth, which belonged to other persons, and the master of the 
 rolls held that the purchaser was not entitled to take the three 
 fourths to which a title could be made with an abatemerft, but 
 (e) Maw V. Topham, 19 Beav. 576. 
 
CH. Vm. § I.] SALE BY TENANT FOR LIFE AS OWNER OF THE FEE. 471 
 
 that he might, upon payment of the price, take what the seller 
 could convey. The learned judge did not rely upon the special 
 circumstances in the case, or give any reason for his decision. 
 It might not be safe to rely upon it. 
 
 *38. But where a man seised in fee in remainder expectant 
 upon his mother's life estate was aware of his actual title, and 
 sold the fee in possession to a purchaser who did not know the 
 state of the title, and the seller objected to complete on the 
 ground that his mother would not concur, he was compelled to 
 convey his remainder to the purchaser, with an abatement for the 
 value of the life estate.(/) And this was not held to Warrant a 
 like decree where a purchaser of a lease subject to an underlease 
 in A. agreed to grant a new underlease to A.'s son at an in- 
 creased rent and for a fine, and the son agreed to procure the ex- 
 isting underlease to be surrendered, but A. refused to surrender 
 it; for both parties were aware of the difficulty, and were con- 
 tent to act upon the assumption that the son was able to procure 
 the surrender of the Iease.(g') 
 
 39. And where trustees of a turnpike road ought to have of- 
 fered a strip of land to the owners of the adjoining land, who 
 under the general turnpike act had a right of preemption, but 
 instead of doing so contracted to sell it to the lessee under the 
 owners of the adjoining land, which lessee in ignorance of the 
 trustees' rights had already begun to build partly on the strip of 
 land, and after the contract finished the building ; the trustees 
 were compelled to specifically perform their contract with costs, 
 although the owners of the adjoining lands had claimed their 
 right of preemption. The purchaser was content to take the 
 title subject to the claim of his lessors, and the trustees could 
 not object that they might be subject to an action at the suit 
 of the lessors, (/j) 
 
 40. If in a case of this nature, the purchaser, on the faith of 
 the agreement, put himself in a situation from which he cannot 
 extricate himself, and is therefore willing to forego a part of his 
 
 (/) Nelthorpe v. Holgate, 1 Ool. C. C. {g) Beeston v. Stutely, 27 L. J. N. S. 
 203; Wilson v. Williams, 3 Jur. N. S. 156; consider the case. 
 810 ; see Edwards- Wood v. Majoribanks, (h) Barrett v. Ring, 2 Sm. & Gif. 43. 
 1 Giff. 384, 3 De G. & J. 329 ; [Barnes v. 
 Wood, L. R. 8 Bq. 424, 429.] 
 
 [310] 
 
472 BIGHTS OF SPORTING, COMMON, ETC. [CH. VIII. § I. 
 
 agreement, that is a circumstance to induce a court of equity to 
 give relief. Thus, where the incumbent of a living had, with full 
 knowledge of the title, contracted with the tenant in tail, in re- 
 mainder after a life estate, for the purchase of the advowson, 
 and on the faith of that agreement had built a much better house 
 than he would otherwise have done ; the tenant for life would 
 not join in suffering a recovery, and consequently a good title 
 could not be made. Lord Thurlow held, that the purchaser 
 ought to have the utmost the vendor could give him ; and there- 
 fore directed the vepdor to convey a base fee, by levying a fine 
 with a covenant to suffer a recovery when he should be enabled 
 to do so.(i) 
 
 41. But if there have been misrepresentation on the part of the 
 * purchaser, he cannot insist upon having the estate, although he 
 is willing to take subject to the outstanding interests, (A) because 
 the misrepresentation would avoid the contract both at law and 
 in equity. 
 
 42. If the vendor has granted a lease of the estate, which is 
 void by force of a statute, the court will not on the request of 
 the purchaser consider the lease as valid, and allow him a com- 
 pensatiq^i in respect of it.(Z) 
 
 43. There are some rights which, although in themselves of 
 small value, are incapable of compensation, and therefore, if un- 
 disclosed, vitiate the contract ; for example, a right of sporting 
 reserved over the estate, for it would not be possible to estimate 
 what difference in value such a reservation made, and it would 
 break in upon the purchaser's enjoyment and ownership.(w) So 
 where it was stated that the property was in the joint occupa- 
 tion of two as lessees, whereas, in fact, although they were in 
 the joint occupation, yet one of them only was the assignee of 
 the original lessee, the case was considered not one for compen- 
 sation. (w) 
 
 44. But where the conditions stated that an insurance com- 
 pany held the property under a lease (which was considered to 
 mean that they were the lessees), a previous inquiry by a pur- 
 
 (i) Ld. Bolingbroke's case, I Sch. & Lef. (l) Morris v. Preston, 7 Ves. 547. 
 
 19, n. (a). (m) Bumell v. Brown, 1 J. & W. 168. 
 
 (k) Clermont v. Tasburgh, 1 J. & W. (n) Ridgway v. Gray, 1 Mac. & G. 109. 
 112. 
 
 [311] 
 
CH. VIII. § I.] EIGHTS OF SPORTING, COMMON, ETC. 473 
 
 chaser before he bid,, which led to the informatipn that certain 
 individuals were the lessees, was held to be notice to him, which 
 bound him.(o) 
 
 45. In a case where a purchaser of an advowson w^as held not 
 to be entitled to compensation on account of a charge on the 
 living to Queen Anne's bounty for rebuilding the parsonage 
 house, one of the learned judges observed, that he would not 
 give any opinion whether the doctrine of compensation applies 
 
 , to cases where, if a purchaser does not sell, he sustains no loss 
 from the deficiency of which he complains. . Then, if the pur- 
 chaser did not sell, the only loss he would suffer was that the 
 clerii whom he presented would have a less income. He doubted 
 whether such a case' was one for compensation. (/>) 
 
 46. But a purchaser in every case may by his conduct, after 
 having notice of the charge, although it is a permanent one,' 
 waive his right to object to it, and even leave himself no right to 
 a compensation. (g") 
 
 47. It is a fatal objection at law, that an inclosed estate is 
 subject to a right of common every third year, which was not 
 noticed in the * contract; (r) and equity, it is apprehended, would 
 not hold it to be a subject for compensation against a purchaser, 
 although he might be allowed to take the estate with a compen- 
 sation. But where an estate was sold with a representation in 
 general terms that the purchaser would have an unlimited right 
 of common, whereas it appeared that the right of common was 
 limited to sheep only, that was held to be a subject for compen- 
 sation. (s) But a seller cannot represent the estate as his free- 
 hold, and then require the purchaser to take what in effect are 
 nothing but sheep-walks.(^) 
 
 48. A right to dig for mines not disclosed would be aground 
 to set aside the contract at the instance of the purchaser. (m) 
 But purchasers may take the title with a compensation. (a;) So 
 a right in the owners of other lands of easements over the lands 
 
 (o) Farebrother v. Gibson, 1 De G. & J. (r) Gibson v. Spurrier, Peake Ad. Cas. 
 602. 49 ; as to footways, post. 
 
 (p) Edwards- Wood v. Majoribanks, 1 (s) Howland v. Norris, 1 Cox, 59. 
 
 Giff. 384, 3 De G. & J. 333, 7 H. L. Cas. (t) Vancouver v. Bliss, 11 Ves. 458. 
 
 806. {„) Infra. 
 
 iq) Ridgway B. Gray, 1 Mac. & G. 109, {x) Seaman v. Vaudrey, 16 Ves. 390. 
 post, 
 
 [312] 
 
474 RENTCHARGE, FEE-FARM RENTS, ETC. [CH. VHI. § I. 
 
 sold for a supply of water, was held to be fatal to the title, not- 
 withstanding the usual clause for compensation for misdescrip- 
 tions, as the particulars of sale described the property as eligible 
 for building purposes.(^) 
 
 49. If the estate be liable to repair the chancel of a church, the 
 purchaser, if he bought without notice of that liability, would 
 not, it seems, be compelled to perform the contract with a com- 
 pensation. (z) 
 
 50. And where a house was sold by auction and no notice 
 was taken of a fee-farm rent of 55. 4d. charged upon that and 
 upon other property, of very great value, the purchaser brought 
 an action for breach of contract, and Sir Vicary Gibbs for the 
 vendor, the defendant, declined arguing the point.(a) 
 
 51. But in equity quit-rents are subjects of compensation, 
 probably because they are regarded as incidents of tenure,(&) 
 which rentcharges are not; still the purchaser would be com- 
 pelled to complete where the rentcharge is small. (6^) In Lord 
 Thurlow's time, the rule was larger than it is now. He laid it 
 down as settled, that wherever it is possible to compensate the 
 
 (y) Shackleton v. SutclifFe, 1 De G. & the existence of such an incumbrance, if it 
 
 Sm. 609. was any, was no objection to a decree of 
 
 (z) Forteblow or Horniblow v. Shirley, specific performance of the contract. Ten 
 
 ■2 Swan. 223; 13 Ves. 81. Broeck v. Livingston,! John. Ch. 357. 
 
 (o) Turner v. Beaurain, Sitt. Guild. The quit-rent in this case did not appear 
 
 cor. Ld. EUenborough, 2 Jun. 1806; to have been demanded or paid for over 
 
 Barnewall v. Harris, 1 Taunt. 430. sixty years. In another case where the 
 
 (b) Esdaile u. Stephenson, 1 Sim. & vendor upon a contract for the sale of a 
 
 Stu. 122 ; Bowles v. Waller, 1 Hay. 441 ; farm, which was held under a lease from 
 
 as to rent of a leasehold, Pope v. Garland, V. R. at a nominal rent of a pound of 
 
 4 Yo. & Col. 394. [But ground rents are wheat, containing a reservation of mines 
 
 not. Gans v. Renshaw, 2 Barr, 34.] and minerals and water privileges, and a 
 
 (5') [See Gans v. Kenshaw, 2 Barr, 34. preemptive right of purchase, covenanted 
 Where the vendor contracted to convey to to give to the purchaser a good and lawful 
 the vendee, " by a good and valid convey- deed of the premises, it was held that the 
 ance in law," a farm, which was originally reservation of the nominal rent was no ob- 
 parcel of a large tract of land granted by jection to the title ; and there being no 
 the proprietor o^a manor to the ancestor mines or minerals or water privileges on 
 of the vendor in fee, " yielding and paying the premises, and V. K. having agreed to 
 to the grantor, his heirs and assigns, the relinquish his preemptive right of pur- 
 yearly rent of ten shillings ; " the propor- chase, of which the vendee had notice at 
 tion of which quit-rent on the farm was the time of making his contract to pur- 
 fifty-four cents a year ; the existence of chase, a specific performance was decreed, 
 the quitrent being known to the vendee at Winne v. Reynolds, 6 Paige, 407.] 
 the time of the contract, it was held that 
 
CH. Vm. § I.] EENTCHAEGE, FEE-FARM RENTS, ETC. 475 
 
 purchaser for any article which diminishes the value of the sub- 
 ject matter, he must be satisfied with such compensation; or to 
 speak in the usual terms, wherever the matter lies in compensa- 
 tion ; but he could not lay down this rule as universal, for a case 
 might be so circumstanced, that the party might have purchased 
 purely for the sake of the very particular wanting. Acting upon 
 this rule, where an estate had been * sold as tithe free, which 
 turned out to be, with other lands, subject to 14Z. per annum in 
 lieu of tithes, Lord Thurlow held the charge to be a subject for 
 compensation. (f) This was going a great way, but no case is to 
 be found where this doctrine of compensation has been applied 
 beyond rentcharges of small amount.(rf) The ground, of course, 
 upon which compensation is allowed is that such rents are in- 
 cumbrances which the seller is bound to remove, or to allow a 
 compensation for them.(e) 
 
 52. And as a general rule — if it admit of any exceptions, it 
 must be in a rare case — the court will not, as we have seen, 
 compel the purchaser to take an indemnity, nor the vendor to 
 giveit.(/) 
 
 53. Where the benefit of quit-rents is sold, a mistake in their 
 amount will not be material. In Cuthbert v. Baker,(g-) the quit- 
 rents of a manor were stated in the particulars of sale to be 21. a 
 year, and they amounted to only 30s. a year ; but this was held 
 to be^ subject of compensation. 
 
 (c) Rowland v. Norris, 1 Cox, 59; Hill, Comyns, 180, inf. ch. 15, s. 2, pi- 
 Nouaille v. Fliglit, 7 Beav. 521. 12. 
 
 (d) Prendergast v. Eyre, 2 Hog. 94; (/) 1 Ves. & Bea. 225; post, ch. 11, s. 
 Portman v. Mill, 1 Rus. & My. 696. 2 ; Powell v. South Wales Ey. Co. 1 Jur. 
 
 (e) Massy v. O'Dell, 9 Ir. Ch. Rep. N. S. 773. 
 
 441; 10 Ir. Ch. Rep.^22; Hammond v. (g) Reg. Lib. A. 1790, fol. 442. 
 
 [313] 
 
476 
 
 WHERE SELLER HAS NO TITLE TO PART. [CH. VIII. § II. 
 
 SECTION 11. 
 
 OF WANT OF TITLE TO A PART OE TO A SHARE OF THE ESTATE. 
 
 9. 
 10. 
 11. 
 12. 
 13. 
 
 14. 
 
 15. 
 
 Mistake as to what is sold. — Uncertain 
 property. 
 
 Want of title to part fatal at law. — Sep- 
 arate valuations. 
 
 Enforced partially against purchaser 
 where part small; not after sale va- 
 cated. 
 
 Want of title to approach. — Condition. 
 
 Want of title to strip between the house 
 and rpad. 
 
 Sale of house and wharf. 
 
 Not binding on purchaser where portion 
 large. — Purchaser's right against seller 
 where no title to large part. 
 
 f Not bound to take shares. 
 
 But may elect to do so. 
 
 Right reversed to rescind if want of title. 
 
 Wheatley v. Slade, semUe against pur- 
 chaser's right to shares. 
 
 Jones V. Evans. Croome v. Lediard. 
 Want of title to shares or part. 
 
 Contract by one tenant in common. 
 
 16. Mutual conti'acts. 
 
 17. Lease containing more than held under 
 
 it. 
 
 18. Mistake in omitting part corrected after 
 
 conveyance. 
 
 19. Sale in lots good as to those with title. 
 
 20. Unless]complicated with the rest. — Right 
 
 of common. 
 
 21. Rule acted upon at law. 
 
 22. Eight of way. 
 
 * 23. Lord Kenyon's doctrine. — The present 
 
 rule. 
 24. Where the seller has not all the tithes he 
 
 sells. 
 25. 
 
 25. ) 
 29. ) 
 
 Where the estate is not tithe free. 
 
 30. Commutation of tithes by statute. 
 
 31. Land tax and tithe rentcharge. 
 
 32. Purchaser freed from land tax redeemed, 
 
 where conditions ambiguous. 
 
 33. Evidence of redemption. 
 
 34. Purchaser's right bound by his conduct. 
 
 1. If a purchaser of an estate thinks he has purchased bond 
 fide a part which the vendor thinks he has not sold, that is a 
 ground to set aside the contract, or at least not to execute it, 
 that neither party may be damaged. (a) If both understood the 
 whole was to be conveyed, it must be conveyed. (&) If an un- 
 certain property be sold and bought as such, neither party can 
 object in regard to its extent; but where a manor was sold with 
 all the lord's rights, &c., and its boundaries were not known, yet 
 as subsequently to the contract it appeared that they were more 
 extensive than either party contemplated, the purchaser was re- 
 fused a specific performance. (c) 
 
 2. A defect of the nature we are now about to consider, arises 
 
 (a) 13 Ves. 427 ; Higginsou v. Clowes, 
 15 Ves. 516; Neap v. Abbott, C. Coo. 
 333; Chamberlain a. Lee, 10 Sim. 445; 
 Alvanley v. Kinnaird, 2 Mac. & G. 1 ; 
 Whittington v.. Corder, 16 Jur. 1034; 
 [Spun- V. Benedict, 99 Mass. 463 ; Kyle v. 
 Kavanagh, 103 Mass. 356; Western Rail- 
 
 [314] 
 
 road Corp. v. Babcock, 6 Met. 346 ; Denny 
 ^,. Hancock, 19 W. E. h^.\lf-'^,^A.6^'^ 
 
 (6) 1 Ves. jr. 211 ; 6 Ves. 339 ; see ^ott 
 V. Littledale, 8 E. & B. 815, as to rescind- 
 ing the sale of goods by a wrong sample 
 in mistake, 
 
 (c) Baxendale v. Seale, 19 Beav. 601. 
 
CH. VIII. § II.] WHERE SELLER HAS NO TITLE TO PART. 477 
 
 either where the seller has not a good title to a portion of the 
 estate which he has sold, or having a good title to the estate, it 
 does not contain the quantity represented in the contract. Al- 
 though the purchaser's bill simply seeks a specific performance, 
 and a reference in the cause is drawn up by him generally as to 
 title without adding, as the court directed, "without prejudice 
 to the question of compensation ; " yet upon the case coming back 
 he may obtain compensation for a want of title to part, although 
 he was aware of the defect before he filed his biU.(«^) 
 
 3. Where an estate is sold in one lot, either by private eon- 
 tract, or public sale, and the vendor has not a title to the whole, 
 he cannot enforce the contract at law. At law, neither a vendor 
 can, on an entire contract, recover part of the purchase money, 
 where he cannot make a title to the whole estate ; nor would a 
 purchaser be suffered to say, that he would retain all of which 
 the title was good, and vacate the contract as to the rest : such 
 questions being subjects only for a court of equity.(e) But 
 where a house and land were sold by private contract for 1,000/., 
 but the court considered there were two distinct contracts, one 
 of the house at 300/., and the other of the land at 700/., and it 
 did not appear that they were necessary to the occupation of 
 each other, and the purchase money was paid, and the purchaser 
 was evicted from the house for want of title in the sellers, * be- 
 fore the conveyance was completed, but as he had built upon the 
 land to which the title was good, he retained that, he was allowed 
 in an action for money had and received, to recover the money 
 which he had paid for the house.(/) 
 
 4. But if the part to which the seller has a title was the pur- 
 chaser's principal object, or equally his object with the part to 
 which a title cannot be made, and is itself an independent sub- 
 ject, and not likely to be injured by the other part, equity will 
 compel the purchasefr to take it at a proportionate price ; (/i) and 
 in these cases it will be referred tq chambers, to inquire, " whether 
 the part to which a title cannotbe made, is material to the pos- 
 
 (d) Wilson V. Williams, 3 Jur. N. S. (/) S. C. 
 
 810. (yi) [See Buck v. M'Caughtiy, 5 Mon- 
 
 (e) Johnson v. Johnson, 3 Bos. & Pul. roe, 230 ; Pratt v. Law, 9 Cranch, 458 ; 
 162. [See Parham u. Eandolph, 4 How- Simpson v. Hawkins, 1 Dana, 305; Col- 
 ard (Miss.), 435.] lard v. Groom, 2 J. J. Marsh. 488.J 
 
 [315] 
 
478 WHERE SELLER HAS NO TITLE TO PART. [CH. VIII. § II. 
 
 session and enjoyment of the rest of the estate."(g-) If the part 
 to which a title cannot be made be a considerable portion, that 
 upon the face of it would be deemed material ; for when a man 
 buys a large estate, he must be supposed to want what he buys ; 
 on the other hand, it matters not how trifling the subject is if it 
 is necessary to the enjoyment of the rest, or- was the purchaser's 
 object in his purchase ; and this has been extended to a want of 
 title to part of the timber sold.(A) If the purchaser, under a 
 stipulation in the contract, has vacated the sale for want of title, 
 he cannot be compelled to complete with a compensation for 
 part to which a good title is not shown.(i) 
 
 5. In a case, where the seller could not make a title to a piece 
 of land over which the approach to the house lay, the purchaser 
 was compelled to complete with a compensation, because there 
 was the usual clause, that if any mistake or omission should be 
 discovered in the description of the property, compensation was 
 to be accepted. (A) But this clause does not seem to apply to a 
 defect of title to part, and where the part is material to the enjoy- 
 ment of the rest, as in this case, it is not a case for compensation. 
 The case, upon appeal, was decided on another ground.(/) 
 
 6. Where upon a sale of a house and about four acres the 
 seller could not make a title to a small strip of land between the 
 house and the road, so that people in passing could look in at 
 the window, of course it was held not to be a case for compen- 
 sation. (m) 
 
 (g) M'Queen v. Farquhar, 11 Ves. 467 ; 1, ch. 3, § 9, note (i) ; Toung v. Lillard, 
 
 Knatchbull v. Grueber, 1 Mad. 153; Bow- 1 Marsh. 482; Kelly v. Bradford, 3 Bibb, 
 
 yer u. Bright, 13 Pri. 698 ; Prendergast u. 317; Butler v. O'Hear, 1 Desaus. 382; 
 
 Eyre, 2 Hog. 81. 2 Kent (Uth ed.), 475, 476, & notes; 
 
 (h) Stewart v. Marquis of Conyngham, Watts o. Waddle, 6 Peters (U. S.), 389; 
 
 1 Ir. Ch. R. 573. [See Cooper «. Denne, see Marvin v. Bennett, 8 Paige, 312; 
 
 1 Ves. jr. (Sumner's ed.) 565, 567, note Pringle v. Witten, 1 Bay, 256; Glover w 
 
 (5) of Mr. Hovenden; Eeed v. Noe, 9 Smith, 1 Desaus. 433 ; Tunno w. Plood, 1 
 
 Yerger, 283; M'Kean o. Eeid, Litt. Sel. McCord, 121.] 
 
 Gas. 395 ; Parham v. Randolph, 4 How. (i) Ashton v. Wood, 3 Jur. N. S. 1164 ; 
 
 (Miss.) 435. Where there is a substantial 3 Sm. & Gif. 436 ; where the stipulation 
 
 defect in the estate sold, either in the title referred to is omitted ; consider the case 
 
 itself, or in the representation or descrip- and the frame of the bill, 
 tion of the nature, character, situation, (k) Freer v. Hesse, 17 Jur. 177, sup. p. 
 
 extent, or quality of it, which is unknown 30. 
 
 to the vendee, and in regard to which he (l) 17 Jar. 703 ; 2 Eq. R. 13 ; 4 De G., 
 
 is not put upon inquiry, then a specific M. & G. 495. 
 
 performance will not be decreed against (m) Perkins v. Ede, 16 Beav. 193 ; qu. 
 
 him. 1 Story Eq. § 778 ; Fonhl. Eq. b. the point as to the statute of limitations. 
 
CH. VIII. § II.] WHEEE SELLER HAS NO TITLE TO PAET. 479 
 
 7. This equity was at one period exercised against purchasers to 
 an extent which is not now followed, but the stream of authority 
 sets the other way.(«) In a case (o) before Sir Thomas Sewell, 
 a man "who had contracted for the purchase of a house and 
 wharf, was compelled to take the house, although he could not 
 obtain the wharf, and although his object was to carry on his 
 business at the wharf; but this has long been overruled, (jn) and 
 now, although the purchaser did not require the wharf for his 
 trade, yet if the house and wharf were connected together as 
 one property, the want of title to the wharf would authorize the 
 purchaser to rescind the whole contract Accordingly (q) where 
 a wharf, described as superior waterside premises, with jetty, &c., 
 was sold, and no sufficient title could be made to the jetty, it 
 was considered essential to the beneficial enjoyment of the prem- 
 ises, and the seller's bill for specific performance was dismissed 
 with costs. 
 
 8. There are many cases where a purchaser might elect to 
 take the portion of the estate to which a title could be made, 
 although the vendor could not compel him to do so.{q^) A pur- 
 
 (n) 13 Pri. 702. 
 
 o) 6 Ves. 678; 7.Ves. 270; M'Queen 
 V. Farquhar, 11 Ves. 467 ; 1 Cox, 61, 62. 
 
 {p) 1 Esp. 152; 6 Ves. 679; 13 Ves. 78, 
 228, 427 ; Prendergast v. Eyre, 2 Hog. 81 ; 
 Shackleton v. Sutcliffe, 1 De 6. & Sm. 
 609. 
 
 (q) Peers v. Lambert, 7 Bear. 546 ; see 
 15 Beav. 209. ["The good sense and 
 equity of the law on this subject,'' says 
 Chancellor Kent, "is, that if the defect of 
 title, whether of land or chattels, be so 
 great as to render the thing sold unfit for 
 the use intended, and not within tlie in- 
 ducement to the" purchase, the purchaser 
 ought not to be held to the contract, but 
 be left at liberty to rescind it altogether." 
 " If there be a failure of title to part, and 
 that part appears to be so essential to the 
 residue, that it cannot reasonably be sup- 
 posed the purchase would have been made 
 without it ; as, in the case of the loss of a 
 mine, or of water necessary to a mill, or of 
 a valuable fishery attached to a parcel of 
 poor land, and by the loss of which the 
 
 residue of the land was of little value ; the 
 contract may be dissolved in toto." 2 Kent 
 (11th ed.), 475, 476; see Stoddart v. 
 Smith, 5 Binney, 35.5, 363 ; Parhara v. 
 Randolph, 4 How. (Miss.) 435 ; . Marvin v. 
 Bennett, 8 Paige, 312; Tunno v. Flood, 
 1 McCord, 121 ; Osborne v. Bremar, 1 
 Desaus. 486; Buck v. McCaughtry, 5 
 Monroe, 230; Simpson v. Hawkins, 1 
 Dana, 305; CoUard v. Groom, 2 J. J. 
 Marsh. 488.] 
 
 (ji) [See Evans v. Kingsbury, 2 Rand. 
 120; Jones w. Belt, 2 Gill, 106; Morss v. 
 Elmendorf, 11 Paige, 277. " The general 
 rule in all such cases," says Mr. Justice 
 Story, "is, that the purchaser, if he 
 chooses, is entitled to have the contract 
 specifically performed, as far as the vendor 
 can perform it, and to have an abatement 
 out of the purchase money, or compensa- 
 tion, for any deficiency in the title, quan- 
 tity, quality, description, or other matters 
 touching the estate." 1 Story Eq. § 779 ; 
 Morss V. Elmendorf, 11 Paige, 277 ; Voor- 
 hees V. De Meyer, 2 Barb. 37 ; Wiswall v.' 
 
 [316] 
 
480 WHERE SELLER HAS NO TITLE TO PART. [CH. VIII. § II. 
 
 chaser cannot be con)pelled to take a compensation for a large 
 portion of the estate.(q^) In regard to the limits of the rule, 
 that a purchaser may elect to take the part to which a title can 
 be made at a proportionate* price, it has not been determined 
 whether under any circumstances of deterioration to the remain- 
 ing property, the vendor could be exempted from the obligation 
 of conveying that part to which a title could be made ; but the 
 proposition is untenable, that if there is a considerable part to 
 which no title could be made, the vendor was therefore exempted 
 from the necessity of conveying any part.(r) But a seller, for 
 example, could not, at the election of the purchaser, be deprived 
 of his mansion house and park to which he could make a good 
 title, whilst a large adjoining estate held and sold with it, would 
 be left on his hands with a proclaimed bad title. 
 
 9. If the seller has not the entirety of the estate sold, he can- 
 not compel the purchaser to accept at a proportionate price the 
 shares which he actually has in the estate ; and the rule is the 
 same if the entirety is sold by several who are entitled to it 
 amongst them in aliquot shares. Therefore, if a man contract 
 with tenants in common for the purchase of their estate, and 
 one of them die, the survivors cannot compel the purchaser 
 to take their shares, unless he can obtain the share of the de- 
 ceased. (s) 
 
 10. And in a case where under a decree a person purchased 
 two, sevenths of an estate in one lot, and a good title was made 
 to one seventh only, the purchaser was allowed to rescind the 
 contract as to the whole of the lot.(i) 
 
 * 11. But the converse of this proposition does not hold good, 
 
 McGown, 2 Barb. 270. But the vendor (q^) [As where the property was stated 
 
 cannot be required to convey a different to contain 753 square yards or thereabouts, 
 
 parcel of land from that agreed to be con- but in fact contained only 573 square 
 
 veyed, Morss i>. Elmendorf, U Paige, 277 ; yards. Whittemore k. Whittemore, L. R. 
 
 Beverley v. Lawson, 3 Munf. 317. Where 8 Eq. 603.] 
 
 the contract for sale of land embraces two (r) 3 Vea. & Bea. 187. 
 
 parcels, to only one of which the vendor (s) Att. Gen. v. Day, 1 Ves. 218 ; [1 
 
 can make a good title, the vendee may Story Eq. Jur. § 778 ; Seed o. Noe, 9 
 
 claim n. conveyance of that parcel if he Yerger, 283 ; Bates v. Delavan, 5 Paige, 
 
 will pay the stipulated price of it, and ac- 300.] 
 
 cept it in full satisfaction of the contract. {i) Roffey v. Shallcross, 4 Mad. 227 ; 
 
 "White jj. Dobson, 1 7 Grattan, 262. See Dalby w. PuUen, 3 Sim. 29 ^ Casamajor u. 
 
 Stoddart • . Smith, 5 Binney, 355, 363.] Strode, 2 My. & Ke. 726. 
 
 [317] 
 
CH. VIII. § II.] WHERE SELLER HAS NO TITLE TO PART. 481 
 
 for the purchaser may compel the survivors in the case before 
 put to convey their shares to him, although the contract cannot 
 be executed against the heir of the deceased,(M) for a purchaser 
 generally, although not universally, may take what he can get, 
 with compensation for what he cannot have.(a;) 
 
 12. But where an agreement stipulated that errors in the 
 description should not vacate the agreement, with a stipulation 
 that if the purchaser's counsel should be of opinion that a mar- 
 ketable title could not be made the agreement should be void 
 and counsel's opinion was that a title could be made to only 
 two thirds of the property ; notwithstanding which the purchaser 
 filed a bill for a specific performance with an abatement; his 
 bill was dismissed with costs. The court thought that as the 
 above mentioned stipulation was the contract of both parties, 
 it could not make a new contract for them. They had stipu- 
 lated, that in a given event, which had happened, the agreement 
 should be void. (2/) The condition, however, hardly seemed to 
 apply to the want of title to one third of the property. 
 
 13. In the case of Wheatley v. Slade,(z) where a manufactory 
 was sold, it appeared that the sellers were entitled to nine six- 
 teenths only, the vice chancellor was of opinion against the pur- 
 chaser's right to enforce a performance pro tanto. He said that 
 in Hill V. Buckley, it was decided that a purchaser might file a 
 bill, and insist on having the agreement performed as far as the 
 vendor was capable of performing it, and that a deduction 
 should be made to him in respect of the deficiency ; but that 
 was not allowed where a large portion of the property could not 
 be conveyed. This sale, he observed, was made under the im- 
 pression that they were possessed of the entirety of it; but that 
 it afterwards appeared that they could make a title to nine six- 
 teenths only of the property, and that it was subject to a debt of 
 10,000^. and interest, which would exhaust nearly the whole of 
 the purchase money. He therefore dissolved an injunction to 
 prevent the sellers from selling to any other person, as the court 
 at the hearing would not deal with this case as it dealt with 
 Hill V. Buckley. This decision may, perhaps, be referred to th 
 
 (u) Att. Gen. v. Day, 1 Ves. 218. (y\ Williams v. Edwards, 2 Sim. 78. 
 
 (x) 1 Ves. & Bea. 353 ; Wilson v. Will- (z) i Sim. 126. 
 iams, 3 Jur. N. S. 810. 
 
 VOL. 1. 31 
 
482 WHEEE SELLER HAS NO TITLE TO PART. [CH. VHI. § II. 
 
 nature of the property — although the sellers' object appears to 
 have been to get rid of one sale in order to join in another — 
 otherwise it might be difficult to support it, for whatever was 
 really the number of the shares to which the sellers were entitled, 
 they were bound to that extent to pay the charges, and it is no 
 objection to the performance of a contract that the charges on 
 the estate will, contrary to the seller's expectation, exhaust the 
 purchase money. If the case be "reduced to the simple one, 
 that the sellers had only nine sixteenths, although they consid- 
 ered they had the entirety, the authorities would seem to show 
 that the purchaser had a right to those shares at a price pro 
 tanto: no hardship would have been thrown upon the sellers; 
 they would not have had the other shares left on their hands 
 with a bad title, for the nine sixteenths were all the shares they 
 possessed ; the owner of the other seven sixteenths was a party 
 to the suit, and his title was undisputed by the sellers of the 
 nine sixteenths. 
 
 14. In a later case,(a) where two persons agreed to sell two 
 sixths of a leasehold, together with other then' estates or interests 
 therein, and had only 2-21th shares, the same learned judge held 
 that the purchaser was entitled to a specific performance as to 
 the actual shares, with an abatement; for if the parties might 
 have had more, they might also take less than two sixth parts. 
 He thought that the case came quite within Hill v. Buckley. 
 This was very unlike a case where parties contracted to sell the 
 whole, but could only sell a part. Here they were in any case 
 only to sell a part, and the only question was whether that part 
 was more or less. The vice chancellor thus confined his rule to 
 a sale of the whole of an estate, but he seems to have failed in 
 establishing any solid distinction between the sale of the entirety 
 of an estate with a want of title to part, and a sale of shares of 
 an estate with a want of title to some. As a purchaser may 
 take such shares as the seller can make a title to where he con- 
 tracted for more shares, why may he not do so where he con- 
 tracted for the entirety? The vice chancellor probably meant 
 only to say that where a man bond fide believed the entirety of 
 an estate belonged to him, although in truth many shares of it 
 
 (a) Jones v. Evans, 12 Jur. 664, 
 
 [318] 
 
CH. VIII. § II.] WHERE SELLER HAS NO TITLE TO SOME LOTS. 483 
 
 did not, equity would not compel him to convey his shares to 
 the purchaser, with a large compensation for the others. But 
 still this rule might equally apply to a portion of shares. 
 
 15. Where one of two tenants in common in fee agreed to 
 lease the minerals, and the other tenant in common did not con- 
 cur, it was considered that the lessee could not obtain a specific 
 performance as to a moiety, for the party who agreed to lease 
 intended to contract for a lease of the whole colliery, and he had 
 been guilty of no improper conduct or misrepresentation. (&) 
 
 16. If A. contract to sell one estate to B., and B. contract to 
 sell another estate to A., although entered into by the same in- 
 strument, they are several contracts, and either A. or B. may 
 compel the other to convey his estate to him, although he him- 
 self cannot make a title to the estate which he contracted to sell. 
 But where two estates were conterminous, or where there was a 
 mixed case of enjoyment of the estates, as in the case of one of 
 the parties having an easement * over the property of the other, a 
 contract depending upon such mutuality as to sale on one side 
 and purchase upon the other might well exist; (c) and so in like 
 cases. 
 
 17. Where the estate sold consisted of several houses, stated 
 to be held under lease from A. and the lease comprised a 
 small piece of ground formerly held with one of the houses, but 
 divided from it previously to the lease, and let to another; the 
 purchaser was allowed to recover his deposit; for he would be 
 liable at law under the covenants for the whole as demised. (rf) 
 
 18. Where A. purchased a leasehold, and by mistake left out 
 of his assignment part of his lot which was assigned to B., the 
 purchaser' of an adjoining lot, and the abstract furnished to A. 
 showed no title to the part in question, and the sales were com- 
 pleted, it was held that A. was entitled to no relief against either 
 the seller or B., but the particulars seemed not to warrant this 
 conclusion, for the part in question was described in A.'s lot and 
 not in B's, and, upon appeal, A. was held entitled as against B. 
 
 (6) Price V. Griffith, 1 De G., M. & G. (c) Croome v. Lediard, 2 My. & Ke. 251 , 
 80 : there was no binding agreement. 293. 
 
 (d) Tomkins v. White, 3 Smith, 435. 
 
 [319] 
 
484 WHERE SELLER HAS NO TITLE TO SOME LOTS. [OH. VIIL § II. 
 
 to the part left out of his conveyance by mistake and conveyed 
 to B., but the bill was dismissed against the vendor with 
 costs.(e) 
 
 19. Where an estate is sold by auction, or by the court, in 
 lots, and the vendor has not a title to all the lots sold, equity 
 will compel the purchaser to take the lots to which a title can 
 be made, if they are not complicated with the rest; and will 
 allow him a compensation pro tanto.{f) 
 
 20. But if a title cannot be made to a lot which is compli- 
 cated with the rest, the purchaser will not be compelled to accept 
 the lots to which a title can be made ; e. g. if a purchase of a 
 mansion house in one lot, and farms, &c., in others, and no title 
 could be made to the lot containing the mansion house. 
 
 21. Even a court of, law is at liberty to look at the nature of 
 the property, and will permit a purchaser to rescind the contract 
 as to all the lots if a title cannot be made to any which are nec- 
 essary to the enjoyment of the rest,(g') although a distinct con- 
 tract arises upon each lot. Therefore, where the property was 
 represented as freehold, but no notice was taken that a meadow, 
 part of it, was liable to a right of common : the plaintiff pur- 
 chased two lots, one a house, garden, &c., the other the meadow 
 close adjoining, and which he wished to occupy with it; and 
 Lord Kenyon held that if these lots were so near each other that 
 the hope of possessing one as an appendage *to the other was 
 the inducement to the purchaser to purchase both, he ought not 
 to be compelled to take one alone.(i%) 
 
 22. And where a purchase by auction of a lot, numbered 13, 
 was held not to be binding, because a right of way over it had 
 not been sufficiently disclosed, and he had also bought an ad- 
 joining lot. No. 12, containing a house, which was to have a 
 right of way over lot 13, he was allowed to rescind the purchase 
 as to lot 12 also, as he might be reasonably understood to have 
 
 (e) Leuty v. Hillas, 2 De G. & J. IIO. James u. Shore, 1 Star. 426; Baldey v. 
 
 (/) Poole V. Shergold, 2 Bro. C. C. 118 ; Parker, 2 B. & C. 37 ; Roots v. Ld. Dor- 
 
 1 Cox, 273 ; 6 Ves. 676 ; 2 My. &Ke. 727 ; mer, 4 B. & Ad. 77 ; Seaton v. Booth, 4 
 
 [See Stoddart v. Smith, 5 Binney, 355, 363 ; Ad. & El. 528. 
 
 Van Eps v. Schenectady, 12 John. 436 ; (h) Gibson v. Spurrier, Peak. Ad. Gas. 
 
 Waters v. Travis, 9 John. 450.] 49. 
 
 (g) Emmerson v. Heelis, 2 Taunt. 38 ; 
 
 [320] 
 
CH. VIII. § II.] WHERE SELLER HAS NO TITLE TO SOME LOTS. 485 
 
 purchased lot 12, in order by unity of seisin to extinguish the 
 right of way over lot 13.(f) 
 
 23. There has been some doubt and confusion about Lord 
 Kenyon's doctrine at law in Chambers v. Griffiths. (A) (1) But it 
 is now understood that a purchaser of several lots at law cannot 
 resist the contract as to one, because a title cannot be made to 
 the other, unless upon the ground before stated, or unless it 
 could be shown that there was an understanding that the pur- 
 chaser was not to take any of the lots unless he could obtain 
 them all; (I) or, in other words, that where it is not shown that 
 the lots are complicated with each other, a purchaser cannot for 
 want of title to one lot rescind the sales as to all the lots, unless 
 it could be shown that there was such an understanding. (ot) 
 
 (0 Dykes v. Blake, 4 Bing. N. C. 463; (m) Lewiu v. Guest, 1 Bus. 325; Har- 
 
 see Daniel v. Anderson, 8 Jur. N. S. 328. wood v. Bland, 1 Pla. & Ke. 540 ; 2 My. & 
 
 (k) 1 Esp. 149. Ke. 725. [See Hepbuni v. Auld, 5 Cranch, 
 
 {!) Drewe v. Hanson, 6 Ves. 675 ; Casa- 262 ; Van Eps v. Schenectady, 12 John. 
 
 major v. Strode, 2 My. & Ke. 724 ; Boyer 436, 443.] 
 
 V. Blackwell, 3 Ans. 657. 
 
 (1) Lord Kenyon held that the contract for some houses sold in separate lots could 
 not be enforced, as a title could not be made to all of them. And this was the opinion 
 of the court of exchequer. In a case before Lord Eldon, 19 July, 1806, MS., in which 
 most of the authorities' on this head were cited, that of Chambers v. Griffiths was not 
 noticed, and the report of Gibson v. Spurrier was not then published. But Lord Eldon 
 afterwards mentioned from the bench, that he had met with the case of Chambers v. 
 Griffiths, and he desired it to be understood, that he was not of the same opinion as 
 Lord Kenyon ; and in a still later case Lord Eldon expressed an opinion that Lord 
 Kenyon's rule would not be followed unless it could be shown that there was an un- 
 derstanding, that the purchaser was not to take any of the lots unless he could obtain 
 them all. In Casamajor v. Strode, Lord Brougham L. C. disagreed with Lord Ken- 
 yon's opinion in Chambers v. Griffiths ; he obserred, that Lord Eldon was said to have ' 
 expressed a similar opinion in Drewe v. Hanson, but if so it had escaped the reporter. 
 Lord Eldon's observation was mentioned shortly after it was made in an early edition 
 of this work, and it was stated to have fallen from him after he had decided Drewe 
 V. Hanson, which accounts for its having escaped the reporter. There is no doubt that 
 Lord Eldon did make the observatipu, and the statement of it in this work must have 
 been under his eye upon more than one occasion. Lord Eldon did not intend to touch 
 the general rule, where it is shown that the lots are complicated with each other, but 
 merely said that Lord Kenyon's rule would not be followed, unless it could be sl^own 
 that there was an understanding to that effect ; or, in other words, that where it is not 
 shown that the lots are complicated with each other, a, purchaser cannot for want of 
 title to one lot rescind the sales as to all the lots, unless it could be shown that there 
 was such an understanding. In the case in the exchequer (Boyer v. Blackwell), the 
 seller could make a title to all the lots, but desired to withdraw some of them because 
 he had a better offer for them. 
 
486 
 
 OF WANT OF TITLE TO TITHES. [CH. VIII. § II. 
 
 *24. We are now to examine the cases relating to tithes. 
 Where they are sold as a distinct existing property, they are — 
 regard being had to the different natures of the properties — sub- 
 ject to the rules already quoted, but where they are the tithes of 
 the very land contracted to be purchased, they rather open to a 
 different consideration. Where upon the sale of an estate, to- 
 gether with the valuable corn and hay tithes of the whole parish, 
 it appeared that the principal object of the purchaser was the 
 corn tithes, and that half the hay tithe belonged to the vicar, and 
 the other half was commuted for by a small annual payment, 
 Lord Eldon was of opinion that the hay tithe, if not of great 
 extent or of such a nature as to prejudice the corn tithe, was a 
 subject for compensation : but otherwise not, as the purchaser 
 would not get the thing which was the principal object of bis 
 contract.(w) 
 
 25. A case (o) often cited, but long misunderstood, led to con- 
 siderable doubt. Lord Thurlow was supposed to have compelled 
 a purchaser to take an estate subject to tithes, although it was 
 sold tithe free, and his object was to buy an estate tithe free ; 
 but it afterwards appeared that the estate was subject only to a 
 money payment of 14Z. in lieu of tithes ; and it is now settled 
 that if an estate be stated to be tithe free, or subject to a modus, 
 a purchaser cannot be compelled to take it with a compensation, 
 if the estate is not tithe free. This was distinctly laid down by 
 Lord Eldon in Ker v. Clobury ; he said that he had so decided 
 in a case from Yorkshire, in which he had told the purchaser if 
 he would take the estate with a compensation, he must under- 
 take to pay the tithes to the vendor.(jo) 
 
 26. Where an estate is sold tithe free, the question whether 
 tithe free is not a question of title but of fact : if the sale was 
 of lands and of tithes, then the matter of tithe would be matter 
 of title.(g') 
 
 27. Where the particular stated about thirty-three acres to be 
 
 (n) Drewe u. Hanson, 6 Ves. 675 ; Van- teis, 75.; Eose v. Calland, 5 Ves. 186; 
 
 couver v. Bliss, 11 Ves. 458 ; Stapylton v. Wallinger v. Hilbert, 1 Mer. 104 ; 6 Ves. 
 
 Scott, 13 Ves. 425. 679; 17 Ves. 280; Howland v. Norris, 1 
 
 (o) Lord Stanhope's case, 6 Ves. 678 ; Cox, 59. 
 
 Howland v. Norris, 1 Cox, 59 ; 6 Ves. 679 ; (p) 26 Mar. 1814, MS. 
 
 17 Ves. 280; Lowndes v. Lane, 2 Cox, (q) Smith u. Lloyd, 2 Swan, 224, n. ; 
 
 363 • 6 Ves 676 ; but see Pincke v. Cur- Wallinger v. Hilbert, 1 Mer. 104. 
 
 [321] 
 
CH. VIII. § II.] OF TITHE : LAND TAX. 487 
 
 tithe free, a-nd errors of description were not to vitiate the sale, 
 the purchaser was compelled to be satisfied with, a compensa- 
 tion, (r) 
 
 28. And where a mansion house and pleasure grounds, and 
 seven acres of pasture were sold, without any mention of tithes, 
 and the great tithes which had been conveyed to the vendor 
 were added without ' any additional price ; the purchaser was not 
 allowed to escape upon the ground of an objection to the title 
 to the tithes.(s) 
 
 29. Where the contract is to sell an estate tithe free, the ven- 
 dor not representing himself to have title to the. tithes, if the 
 purchaser chooses to take it, he cannot compel the vendor to buy 
 the tithes, if there is a positive title to them in permanency ; all 
 he can have is compensation. (<) 
 
 30. These points cease to be important, except for the principle 
 established by them: for the commutation of tithes in England 
 and Wales for rentcharges is provided for,(M) and with few 
 exceptions,(a;) all lands will be absolutely discharged from 
 tithes; (y) and corn rentcharges will be payable in lieu of them, 
 with powers of distress and entry and enjoyment of the land for 
 securing them ; (z) but still a purchaser should ascertain that the 
 commutation is a binding one.(a) Owners of both lands and 
 tithes,(6) even tenants for ]ife,(c) are empowered to merge the 
 tithes in the lands ; and in Ireland tithes are abolished, and rent- 
 charges substituted for them.(d) 
 
 31. Tithe, like land tdx,(l) has never been deemed an incum- 
 brance, and therefore, if nothing is said upon the subject, the 
 
 (r) Sinks v. Ld. Eokeby, MS. 2 Swku. (■«) 6 & 7 Will. 4, c. 71 ; 1 Vict. c. 69. 
 
 222 ; Smith v. Tolcher, 4 Eus. 302 ; where (x) S. 90. 
 
 the former case is not accurately quoted in {y) S. 67. 
 
 the judgment. (z) S. 81, 82, 83, 84, 85. 
 
 (s) Smith V. Tolcher, 4 Rus. 302. (a) Banbury v. Fuller, 9 Ex. 111. 
 
 (t) Todd u. Gee, 17 Ves. 273 ; qu. how {bj S. 71. 
 
 is the compensation to be estimated? [See (c) 1 & 2 Vict. c. 64. 
 
 Wainwright v. Eead, 1 Desaus. 573.] {d) 1 & 2 Vict. c. 109. 
 
 (1 ) Where land tax redeemed merges, and where it passes by general words, Blundell 
 V. Stanley, 13 Jur. 998. The 16 & 17 Vict. c. 117, s. 2, as to contracts after the act, 
 merged the land tax redeemed ; but that was repealed by the 19 & 20 Vict. c. 80, s. 3, 
 for the time to come; land tax redeemed between the 28th August, 1843, and the 29th 
 •July, 1856, has of course merged. 
 
 [322] 
 
488 OF TITHE : LAND TAX. [CH. VIII. § II, 
 
 purchaser must take the estate subject to its liability ; and where 
 the estate is free from land tax or tithe, and the non-liability is 
 not mentioned, yet the seller cannot require any allowance on 
 account of the estate being discliarged. Now, the rentcharge will 
 probably not be noticed, unless it be a low one ; but although the 
 particulars or agreement are silent on the subject of tithe, yet the 
 purchaser will not have a right to object to the rentcharge, 
 although a like rentcharge payable to an individual might be fa- 
 tal to the contract, because every estate, where nothing is said to 
 the contrary, is presumed to be subject to tithes, and now rent- 
 charges are substituted for tithes.(e) 
 
 32. Where the land tax had been redeemed and the rentcharge 
 in lieu of land tax had become merged, and part of the property 
 was mentioned in conditions of sale to be " subject to such ap- 
 portionment of the land tax as shall be made by the assessor 
 amongst the respective * purchasers," although it was no longer in 
 the power of the assessor, and another lot was " to be subject to 
 land tax, if any ; " and the estate was afterwards sold by private 
 contract /ree/rom incumbrances ; (1) the purchasers were held to 
 be entitled to the lots free from the land tax.(/) 
 
 33. The proper evidence of the redemption of the land tax is 
 the certificate of the commissioners, or a copy of the register. 
 Where the only evidence on a sale was the' acknowledgment in 
 the witnessing part of a conveyance of the receipt of the pur- 
 chase money in full, for the purchase of the property in fee sim- 
 ple, free from all land tax and all other incumbrances, it was of 
 course held to be insufficient, but it was also held hot to fall 
 within one of the conditions of sale " that every deed dated more 
 than ten years ago shall be conclusive evidence of everything re- 
 cited or stated therein." (g-) 
 
 34. If a purchaser, with notice of a defect in a title to a part 
 of the estate which is complicated with the rest, or which is the 
 
 (c) See Parish v. Sleeman, 1 De G., F. (/) Bulkeley v. Hope, 1 K. & J. 483, 1 
 & J. 326 ; upon a contract between land- Jur.'N. S. 864. 
 
 lord and tenant. (g) Buchanan v. Poppleton, 4 C. B. N. 
 
 S. 20. 
 
 (1) Neither report appears to state the facts accurately ; probably the sale by private 
 contract was subject to the previous conditions of sale. 
 
 [323] 
 
CIJ. Vni. § III.j DEFECTS IN THE QUANTITY OF THE ESTATE. 489 
 
 principal object of his contract, talie possession of tlie estate, and 
 prevent the vendor from making a title, he will be compelled to 
 perform the contract, with a deduction from the price. (A) 
 
 SECTION III. 
 
 OF DEFECTS IN THE QUANTITY OF THE ESTATE. 
 
 1. Compensation for deficiency. 
 
 2. Thougli not sold by the acre. 
 
 3. Lands conveyed by estimation. 
 
 4. Condition excluding compensation. 
 
 5. Contract .for sale by estimation. — By 
 
 estimation, more or less. — Excess. 
 — Deficiency not to be answered for. 
 
 6. Fraudulent statement. 
 
 7. Purchaser's knowledge of estate. 
 
 8. About the quantity stated: plan. 
 
 9. Principle of abatement. 
 
 10. Tyhere quantity greatly exceeds that 
 sold. 
 
 11. Sale not in the lump. 
 
 12. Lands shown to purchaser, but excepted 
 
 in conveyance. 
 
 13. Sale by particular, and part omitted. 
 
 14. Where inore is conveyed than was sold. 
 
 16. Contract not evidence as to what passes 
 
 by the conveyance. 
 
 17. General description : copyholds. 
 
 18. Contents of an acre : old law. 
 
 19. Customary acres. 
 
 20. Contents of an acre : new law. 
 
 21. Contracts, how affected by statute. 
 
 This is a question of quantity: the one already considered is 
 a question of title. 
 
 *1. If an estate be sold at so much per acre, and there is a de- 
 ficiency in the number conveyed, the purchaser will be entitled 
 to a compensation, although the estate was estimated at that 
 number in an old survey.(a) 
 
 2. The rule is the same, though the land is neither bought nor 
 sold professedly by the acre. The general rule therefore is, that 
 
 (h) Calcraft v. Eoebuck, 1 Ves. jr. 221. 
 
 (a) Sir C. Shovel u. Bogaij, 2 Eq. Ca. 
 Ab. 688 ; [Stebbins v. Eddy, 4 Mason, 
 414; Whaley v. Elliot, 1 A. K. Marsh. 
 343 ; Nelson v. Carrington, 4 Munf. 332 ; 
 Harrison v. Talbot, 2 Dana, 266 ; Grant v. 
 Combs, 6 Monroe, 281 ; Bierne v. Erskine, 
 5 Leigh, 59 ; see Hoffman v. Jotnson, 1 
 Bland, 109 ; Murdock v. Beal, 1 Bland, 
 109; Marbury v. Stonestreet, 1 Md. 147. 
 In a case where the vendor intended to 
 sell, and the vendee to buy, a quantity of 
 land specified, by exact measurement in 
 square feet, but by mutual mistake in re- 
 
 gard to the length of one of the lines of 
 the lot, the quantity as computed and paid 
 for by the vendor was much larger than 
 the lot in fact contained, the vendee was 
 held entitled to recover back the excess so 
 appearing to have been paid by mistake, 
 although his deed described the lot by 
 metes and bounds, referred to a plan, pur- 
 ported to give the exact length of each of 
 the sides and stated the consideration in an 
 entire sum, which was that ascertained by 
 the price per foot for the number of feet 
 as first supposed. Tarbell i'. Bowman, 103 
 Mass. 341.] 
 
 [324] 
 
490 
 
 DEFECTS IN THE QUANTITY OF THE ESTATE. [CH. VIH. § III. 
 
 where a misrepresentation is made as to the quantity, though in- 
 nocently, the right of the purchaser is to have what the vendor 
 can give, with an abatement, for so much as the quantity falls 
 short.(6) 
 
 3. But where the lands in a conveyance are mentioned to con- 
 tain so many acres by estimation, or the words " more or less " are 
 added, if there be a small portion more than the quantity, the 
 vendor cannot recover it ; and if there be a small quantity less, 
 the purchaser cannot obtain any compensation in respect of the 
 deficiency; (c) and even a large excess or deficiency has not been 
 considered a ground for relieving a vendor or purchaser.{<i) 
 
 (b) Hill V. Buckley, 17 Ves. 394 ; [Steb- 
 bins V. Eddy, 4 Mason, 414 ; Reynolds v. 
 Vance, 4 Bibb, 215; Bond v. Jackson, 3 
 Hayw. 189; Quesnel v. Woodlief, 6 Call, 
 218; S. C. 2 Hen. & M. 173, note; Nelson 
 V. Carrington, 4 Munf. 332; Wainwright 
 V. Read, 1 Desaus. 573 ; Glorer v. Smitb, 
 1 Desaus. 433 ; Durrett v. Simpson, 3 
 Monroe, 519; Solinger v. Jewett, 25 Ired. 
 479; Earl v. Bryan, Phill. (N. C.) Eq. 
 278 ; Nichols v. Cooper, 2 W. Va. 347 ; 
 Kent V. Carcaud, 17 Md. 291. Even where 
 there is a positive statement of the quan- 
 tity of acres, much may depend upon the 
 manner and connection of the statement, 
 and the nature of the contract or convey- 
 ance, whether it is to be deemed mere de- 
 scription or of the essence of the contract. 
 Stebbins v. Eddy, 4 Mason, 414 ; see Mann 
 V. Pearson, 2 John. 37 ; Powell v. Clark, 5 
 Mass. 355 ; Smith w. Evans; 6 Binney, 102 ; 
 Boar V. McCormick, 1 Serg. & R. 164 ; 
 Jackson v. Barringer, 15 John. 471.] 
 
 (c) Twyford v. Warcup, Finch, 310 ; 
 Ld. Townshend v. Stangroom, 6 Ves. 328 ; 
 Eushworth's case. Clay. 46 ; Neale i>. Par- 
 kin, 1 Esp. 229 ; see Manning u. Fitz- 
 gerald, 29 L. J. N. S. Ex. 24; [Davis u. 
 Shepherd, L. R. 1 Ch. Ap. 410 ; Smith u. 
 Fly, 24 Texas, 345.] 
 
 {d} Anon. 2 Free. 106; 2 Phi. 310; 
 [Stebbins v. Eddy, 4 Mason, 414 ; Smith v. 
 Evans, 6 Binn. 109 ; Glen v. Glen, 4 Serg. 
 & R. 488 ; Weart v. Rose, 1 C. E. Green 
 (N. J.), 290. Where a farm or lot is sold 
 
 and conveyed by its boundaries, or in gross 
 by a deed containing the words " more or 
 less,'' such words being deliberately in- 
 serted because neither party professes to 
 know the precise quantity of land con- 
 veyed, and it is afterwards found that the 
 quantity of land is less than the parties 
 supposed, in the absence of fraud or inten- 
 tional misrepresentation, the purchaser is 
 not entitled to any abatement. Marvin v. 
 Bennett, 8 Paige, 312; S. C. 26 Wend. 
 169 ; Jackson v. M'Connell, 19 Wend. 175 ; 
 Jackson v. Moore, 6 Cowen, 706 ; Lush v. 
 Druse, 4 Wend. 313 ; Weaver «. Carter, 10 
 Leigh, 37 ; Stebbins v. Eddy, 4 Mason, 
 414 ; Brown v. Parrish, 2 Dana, 9 ; Hamp- 
 ton u. Eubank, 4 J. J. Marsh. 634 ; Eu- 
 bank V, Hampton, 1 Dana, 343, 344 ; 
 Pedens v. Owens, Rice Eq. 55 ; Whicker v. 
 Crews, 1 Ired. Eq. 351 ; Galbraith v.'Gsii- 
 braith, 6 Watts, 117 ; Williford v. Bentley, 
 5 J. J. Marsh. 118 ; Perkins v. Webster, 2 
 N. H. 287 ; Howe v. Bass, 2 Mass. 382, 
 383; Hallu. Mayhew, 15Md. 551. A sale 
 was at first made of a farm upon a con- 
 tract of so much per acre, to be ascertained 
 by measurement. Afterwards the parties 
 agreed to waive any measurement, and the 
 vendee took the farm at the gross sura of 
 $2,500, supposing it to contain fifty acres, 
 from the representation of the vendor ; and 
 in the deeds of conveyance the land was 
 stated to contain forty-seven and a half 
 acres, " more or less." Mr. Justice Story 
 held, that as the vendor was not guilty of 
 
CH. vm. § ni.] DEFECTS IN THE QUANTITY OP THE ESTATE. 491 
 
 4. Although a contract state the property to contain a given 
 quantity, yet the purchaser must be content with a much less 
 quantity if it be stipulated that the quantities shall be taken as 
 stated, whether more or less (although the title deeds and court 
 rolls state such quantities to be less), without any compensation, 
 and that the statements in the documents of title shall be 
 deemed conclusive evidence of the properties.(e) 
 
 5. Where the contract rests in fieri, the general opinion has 
 been, that the purchaser, if the quantity be considerably less than 
 it was stated, will be entitled to an abatement, although the 
 agreement contain the words more or less, or by estimation,{f) 
 
 any fraudulent misrepresentation, but ex- 
 pressed his bond fide belief, the vendee was 
 not entitled to relief in equity, although 
 the quantity turned out, upon subsequent 
 measurement, to . he forty and one half 
 acres only, each party having been well 
 acquainted with the local boundaries of the 
 farm. Stebbins u. Eddy, 4 Mason, 414. 
 Mr. Chancellor Kent thus states the rule : 
 " Whenever it appears by definite bounda- 
 ries, or by words of qualification, as ' more 
 or less,' or as ' containing by estimation,' 
 or the like, that the statement of the quan-" 
 tity of acres in the deed is mere matter of 
 description, and not of the essence of the 
 contract, the buyer takes the risk of the 
 quantity, if there be no intermixture of 
 fraud in the case." 4 Kent (llth ed.),467 ; 
 see Innis v. M'Crumniin, 12 Martin (La.), 
 425 ; Lesassier v. Dashiell, 13 Louis. 151 ; 
 Phelps V. Wilson, 16 Louis. 185 ; Morris 
 Canal Co. v. Emmett, 9 Paige, 168; 4 
 Kent (llth ed.), 467, note (6), and cases 
 cited ; Slothower v. Gordon, 23 Md. I ; 
 Hall V. Mayhew, 15 Md. 551 ; Tyson u. 
 Hardesty, 29 Md. 305 ; Shipman y. Briggs, 
 8 Cal. 76; Johnson v. Tuber, 10 N. Y. 
 319; Clark v. Carpenter, 4 C. E. Green 
 (N. J.), 328 ; Weart v. Eose, 1 C. E. Green 
 (N. J.), 290; Zeringue v. Williams, 15 La. 
 An. 76 ; Wear v. Parish, 26 111. 240. So 
 where land is sold by certain boundaries, 
 or for so much for the entire parcel, any 
 surplus of land over the quantity given be- 
 longs to the vendee, and the price cannot 
 
 be increased or diminished on account of 
 disagreement in measure or quantity. 
 Weart v. Kose, 1 C.E. Green (X. J.), 290. 
 In Smith v. Fly, 24 Texas, 345, it was 
 held that the words " more or less " in the 
 deed would not cover a mistake of one 
 quarter.] 
 
 (c) NicoU V. Chambers, 11 C. B. 996. 
 [So where, by an unintentional error, land 
 was stated to contain 7,683 square yards, 
 but in fact contained only 4,350 square 
 yards, and the purchaser, notwithstanding 
 the conditions, insisted on compensation, 
 though the vendor offered to vacate the 
 sale ; specific performance was decreed at 
 the suit of the purchaser, but upon pay- 
 ment of the whole of the purchase money 
 and costs. Cordingley v. Cheeseborough, 
 4 De G., F. & J. 379. But the common 
 general condition that any misstatement 
 or omission in the particular shall not 
 avoid the sale, nor shall any compensation 
 be claimed either by the vendor or pur- 
 chaser in respect thereof, has been held to 
 apply only to trivial errors, and not to pre- 
 clude a purchaser from the right to com- 
 pensation for a material deficiency in the 
 quantity stated ; Whitemore v. Whitemore, 
 W. N. 1869, 214 V. C. M. ; L. R. 8 Eq . 
 603 ; or from avoiding the conti'act where 
 the misdescription is of such a nature as 
 not to be a fit subject for compensation. 1 
 Dart V. & P. (4th Eng. ed.) 130; Dim- 
 mock V. Hallett, L. R. 2 Ch. Ap. 21.] 
 
 (/) Hill V. Buckley, 17 Ves. 394. 
 
492 
 
 DEFECTS IN THE QUANTITY OF THE ESTATE. [CH. VIH. § III. 
 
 or even stronger words.(g") But in a case where the estate was 
 stated in. the contract to contain by estimation forty-one acres, 
 
 (g) Portman v. Mill, 2 Rus. 570 ; see 11 
 C. B. 1008. [See Harrell v. Hill, 19 Ark. 
 102; Belknap v. Sealy, 14 N. Y. 143; 
 Smith u. Fly, 24 Texas, 345 ; Quesnel v. 
 Woodlief, 2 Hen. & M. 173 ; S. C. 6 Call, 
 218 ; Thomas v. Perry, 1 Peters C. C. 49 ; 
 Nelson v. Matthews, 2 Hen. & M. 164; 
 Pollock V. Wilson, 3 Dana, 25 ; Harrison 
 V. Talbot, 2 Dana, 258 ; Bailey w. Snyder, 
 13 Serg. & R. 160; Kerr P. & M. (Am. 
 ed.) 65, 66, in notes ; 2 Dart V. & P. (4th 
 Eng. ed.) 598, 599, 600; Cordingley v. 
 Cheeseborough, 4 De G., F. & J. 379; 
 Earl of Durham v. Legard, 11 Jur. N. S. 
 706. See the remarks of Mr. Justice Gray 
 upon the bearing of the statement in the 
 text, in Noble v. Googins, 99 Mass. 234, to 
 which he adds, that the American courts 
 have shown more unwillingness than the 
 English to encourage litigation about the 
 amount of the price by reason of a varia- 
 tion in the quantity of land agreed to be 
 conveyed, without clear evidence that the 
 quantity was made an essen tial element of 
 the bargain. In the above case of Noble v. 
 Googins, it appeared that the vendee agreed 
 in writing to pay the vendor a gross sum 
 for a "wharf lot on C street," extending 
 from the street to the channel, and de- 
 scribed as bounded on one side by D.'s 
 ship-yard, and on the other side by the 
 ship-yard of E., and as " measuring about 
 two hundred and twenty feet on C street, 
 more or less " ; that in fact it measured 
 only one hundred and seventy feet on C 
 street, and was proportionally less valu- 
 able ; and that at and long before the time 
 of signing the agreement, deeds of the lot 
 and of (he. adjoining ship-yards, showing 
 their actual width and boundaries, were 
 duly recorded in the registry of deeds, and 
 it was thereupon held, that in the absence 
 of fraud the vendee was not entitled, in 
 law or eijuity, to any abatement of the 
 stipulated price. It was considered by the 
 court to be settled in accordance with the 
 soundest reason, " that in an agreement 
 
 for the sale and purchase of land for an 
 entire sum, either the description of the 
 land by its boundaries, or the insertion of 
 the words " more or less," or equivalent 
 words, will control a statement of the 
 quantity of land or of the length of one 
 of the boundary lines, so that neither 
 party will be entitled to relief on account 
 of a deficiency or surplus, unless in case 
 of so great a difference as will naturally 
 raise the presumption of fraud or gross 
 mistake in the very essence of the con- 
 tract." An agreement was made to con- 
 vey " the Hawkins place, containing one 
 hundred acres" the clause "containing 
 one hundred acres," was rejected as sur- 
 plusage, and the contract was held to 
 cover the whole lot surveyed and set off to 
 Hawkins, and upon which he entered, im- 
 proving part, under a parol contract of 
 purchase, though it in fact contained one 
 hundred and six acres. Butterfield v. 
 Cooper, 6 Cowen, 481 ; see Pedens v. 
 Owens, Rice Eq. 55 ; Whicker v. Crews, 1 
 Ired. Eq. 351. In Stebbins ?;. Eddy, 4 
 Mason, 419, 420, Mr. Justice Story said : 
 " The latest cases generally concur with 
 the doctrine laid down in the Anonymous 
 case in 2 Freeman, 106. It seems to me 
 that there is much good sense in holding 
 that the words " more or less," or other 
 equivalent words used in contracts or con- 
 veyances of this sort, should be construed 
 to qualify the representation of quantity 
 in such a manner that, if made in good 
 faith, neither party should be entitled to 
 any relief on account of a deficiency pr 
 surplus. Nor am I prepared to admit that 
 the fact that the sale is not in gross, but 
 for a specific sum by the acre, ought 
 necessarily to create a difference in the ap- 
 plication of the principle. I do not say 
 that cases may not occur of such an ex- 
 treme deficiency as to call for relief ; but 
 they must be such as would naturally 
 raise the presumption of fraud, imposition, 
 or mistake in the very essence of the con- 
 
CH. Vni. § III.] DEFECTS IN THE QUANTITY OF THE ESTATE. 493 
 
 be the same more or less; and upon an admeasurement, the 
 quantity proved to be only between thirty -five and thirty- six 
 acres; and the purchaser claimed an abatement; the master of 
 the rolls decided against the claim.(A) Upon a motion in Port- 
 man V. Mill,(i) it appeared that the lands were described as con- 
 taining, by estimation, three hundred and forty-nine acres, or 
 thereabouts, be the same more or less, and the agreement stipu- 
 lated that the parties should not be answerable for any excess or 
 deficiency in the quantity of the premises, but that the premises 
 should be taken by the purchaser *at the quantity, whether more 
 or less ; and the actual number of statute acres was less by one 
 
 tract. Where the sale is fair, and the par- 
 ties are equally innocent, and the quantity- 
 is sold by estimation, and not by measure- 
 ment, there is little if any hardship, and 
 much ■convenience in holding to the rule 
 caveat emptor." See^ Boar o. McCormick, 
 
 1 Serg. & E. 166 ; Glen v. Glen, 4 Serg. & 
 R. 488 ; Jones v. Plater, 2 Gill, 125 ; Bailey 
 V. Snyder, 13 Serg. & K. 160; Phillips v. 
 Scott, 2 Watts, 318 ; 1 Story Eq. Jur. §§ 
 144 a, 195; 4 Kent (Uth ed.), 467, and 
 note ; Marvin ;;. Bennett, 8 Paige, 312 ; S. 
 C. 26 Wend. 169 ; Morris Canal Co. v. Em- 
 mett, 9 Paige, 168; Faure i'..Martin, 3 Sel- 
 den, 219; Weart i^. Rose, 1 C. E. Green 
 (N. J.), 290 ; Stullu. Hurtt, 9 Gill, 446 ; S. 
 C. 3 Md. Ch. 26 ; Ketchum o. Stout, 20 
 Ohio, 453 ; McCrea v. Longstreet, 1 7 Peun. 
 St. 316. In Smith v. Evans, 6 Binney, 
 102, there was a deficiency of 88 acres in 
 991 J acres, and no relief granted; so no 
 relief was granted in Howes v. Barker, 3 
 John. 506, in which there was a deficiency 
 of 12 acres in 275. In Mann v. Pearson, 
 
 2 John. 37, the land was described as a 
 certain lot containing 600 acres, in the 
 bond or agreement to convey. A deed 
 describing the lot as containing 600, " be 
 the same more or less," was held to be 
 a full performance of the stipulation, 
 although the lot in fact contained only 421^ 
 acres. The agreement in StuU v. Hurtt, 9 
 Gill, 446, was to purchase " a farm or 
 tract of land, called Mother's Care, con- 
 taining 173 acres, more or less." It was 
 
 regarded as a proper case for specific per- 
 formance; although the farm, on measure- 
 ment, was found to contain only 145 acres. 
 See Farmers' & Mechanics' Bank o. Gal- 
 braith, 10 Barr, 490 ; Frederick v. Camp- 
 bell, 13 Serg. & R. 136; M'Lelland v. 
 Creswell, 13 Serg. & R. 143 ; Jones v. 
 Plater, 2 Gill, 128; Dalton u. Rust, 22 
 Texas, 133. But the rule that the boun- 
 daries of a specified tract of land, sold for 
 a sum in gross, control the statement of 
 the quantity it contains, does not apply to 
 a case where the mistake is in the bounda- 
 ries of the tract sold ; and not in the thing 
 described, but in the ability of the vendor 
 to convey the thing described, as, if the 
 vendor and vendee, knowing a certain tract 
 of land to contain a certain number of 
 acres, suppose it all to belong to the 
 vendor, and the salejs made of the whole 
 tract by its boundaries, but those bounda- 
 ries include a parcel of land which does 
 not in fact belong to the vendor, the vendee 
 will be entitled to relief. Voorhees v. De 
 Meyer, 2 Barb. 37.] 
 
 (A) Winch v. Winchester, 1 Ves. & Bea. 
 385 ; Day v. Finn, Ow. 133 ; as to goods, 
 Pettitt V. Mitchell, 4 Man. & Gra. 819. 
 [See Hoffman v. Johnson, 1 Bland, 109 ; 
 Joliffe V. Hite, 1 Call, 262 ; Clark v. Bell, 
 4 Dana, 115.] 
 
 (i) 2 Rus. 570 ; in Leslie v. Tompson, 
 9 Hare, 268, the seller of course submitted 
 to the allowance. 
 
 [325] 
 
494 DEFECTS IN THE QUANTITY OF THE ESTATE. [CH. VHI. § III. 
 
 hundred acres than the number stated in the contract. Lord 
 Eldon said, that as to this stipulation, he never could agree that 
 such a clause (if there were nothing else in the case) would 
 cover so large a deficiency in the number of acres as was alleged 
 to exist there. 
 
 6. But a seller knowing the true quantity, would not be allowed 
 to practise a fraud, by stating a false quantity, with the addition 
 of the words "more or less," or the lik'e.(A;) 
 
 7. If an estate be represented as containing a given quantity, 
 although not sold by the acre, and the purchaser was intimately 
 acquainted with the estate, the statement of the quantity would 
 convey the notion of admeasurement; and therefore the court- 
 would not infer that the purchaser knew the real quantity. (/) So 
 upon a sale of a house to the tenant in possession, a statement in 
 the particulars that the property was forty-six feet in depth, when 
 in fact, the depth was only thirty-three feet, was held to entitle the 
 purchaser to an abatement.(m) But if the purchaser did know 
 the real quantity in the one case or the real depth in the other, of 
 course he could not claim any allowance for the deficiency, nor, as 
 we have seen, if the "deficiency is provided for by the contract.(w) 
 
 8. And where the particular quantities of each close are stated 
 with reference to a plan, a further statement of them, " contain- 
 ing altogether about 101 a. 3 r. 29 p.," will not preclude the pur- 
 chaser's right to an abatement, where the quantity of each close 
 is not correct.(o) 
 
 9. The principle upon which an abatement is made is, to place 
 the parties in the same situation as if there had been no misrep- 
 resentation. Therefore, where a man purchased a wood, and 
 obtained the right quantity of wood but not of soil, the abate- 
 ment was decreed to be only so much as soil covered with wood 
 would be worth, after deducting the value of the wood.(jt7) 
 
 [Jc) See Duke of Norfolk v. Worthy, 1 or by the acre. Thomas v. Beebe, 25 N. 
 
 Cam. 337 ; sup. p. 28, 1 Ves. & Bea. 377 ; Y. 244.] 
 
 [Stebbins u. Eddy, 4 Mason, 414; see (m) King a. Wilson, 6 Beav. 124. 
 
 Pringle v. Samuel, 1 Litt. 44 ; Duvals v. (n) Sup. Lethbridge v. Kirkman, 25 L, 
 
 Eoss, 2 Munf. 290 ; Earl v. Bryan, Phill. J. N. S. 29 ; in the fourth condition, the 
 
 N. C. Eq. 278.] actual quantity was in excess of that stated 
 
 (I) Winch V. Winchester, 1 Ves. & Bea. in the deeds. 
 
 375. [See Craddock -. Shirley, 3 A. K. (o) Gell v. Watson, 16 Nov. 1825, MS. ; 
 
 Marsh, 288. Where fraudulent represeu- post, pi. 11. 
 
 tations relate to the quantity of land sold, (p) Hill v. Buckley, 17 Ves. 394; Les- 
 
 it is immaterial whether the sale is in gross lie v. Tompson, 9 Hare, 268. 
 
CH. Vm. § m.] DEFECTS IN THE QUANTITY OF THE ESTATE. 495 
 
 10. In Price v. North, (5') where the estate was described as 
 seven fields 14 a. more or less, with the usual condition, that mis- 
 takes in description should not annul the sale, but be the subject 
 of compensation, it appeared that the acres were customary 
 ones, and were equal to twenty-seven statute acres ; it was con- 
 sidered that such a misdescription as this would not be ground 
 for modifying the contract, but for avoiding *it altogether.(5i) 
 This observation was made upon a petition against the pur- 
 chaser, and no doubt it would be difficult in such a case to make 
 a bond fide purchaser buy an estate twice as large as that for 
 which he had contracted, and pay double the amount of the pur- 
 chase money for it, but he could doubtless enforce the contract 
 upon payment of the additional price. The vendor alone was 
 in fault. 
 
 11. Where a country residence, park, coppice, and grounds, all 
 in a ring fence (except the stabling and kitchen garden), were 
 sold, under the usual condition as to mistakes, as a lot compris- 
 ing about 70 A. 24 p. divided in the following manner, and then the 
 quantities by acres, roods, and perches were stated by reference 
 to a plan of the lawns, park, coppice, &c., a'nd after the sale it 
 was discovered that the lot contained 89 a. 29 p., it was held that 
 the sale w^as not intended to be in the lump, and that the seller 
 was entitled to a compensation for the overplus. (r) 
 
 12. Where lands are shown to a purchaser as part of his pur- 
 chase, he will be entitled to them, although expressly excepted in 
 his conveyance by name, provided he did not know them by that 
 name.(s) 
 
 13. So if a man clearly purchase an estate by a particular, and 
 in the conveyance part of the land is left out, equity will relieve 
 him.(i) 
 
 14. On the other hand, the court will equally relieve a vendor, 
 where more land had passed than was contracted for.(M) 
 
 {q) 2 Yo. & Col. 620 ; consider Leslie v. (i) Pre. C. 307 ; Nelson v. Nelson, Nel. 
 
 Tompson, 9 Hare, 268. C. Eep. 7 ; Cass v. Waterhouse, Pre. C. 
 
 (?i) [But see Cordingley v. Cheesebor- 29 ; Clinan v. Cooke, 1 Sch. & Lef. 22 ; 
 
 ough, 4 De G., F. & J. 379.] eh. 4, sup. ; 2 Dow. 301 ; Leuty v. Hillas, 
 
 (r) Leslie v. Tompson, 9 Hare, 268 ; 2 De G. & J. 110; supra, s. 2, pi. 18. 
 
 Painter v. Newby, 1 Eq. R. 173. (u) Clifford v. Laughton, Tot. 83, con- 
 
 fs) Oxwick V. Brockett, 1 Eq. Ca. Ab. tra ; but Tyler v. Beversham, rinch, 80 ; 
 
 355. 2 Ch. C. 195 ; Gibson v. Smith. Bar. C. 
 
 [326] 
 
496 DEFECTS IN THE QUANTITY OF THE ESTATE. [CH. VIU. § III. 
 
 15. And where a purchaser took a conveyance of an estate 
 from his own instructions, he was held not to be entitled to land 
 answering the general description in the advertisements of sale, 
 but which was not included in his conveyance, nor in a more 
 particular description from which he prepared his instruc- 
 tions, (x) 
 
 16. Where a question arises as to what lands are conveyed to 
 a purchaser, the previous contract is not admissible at law, al- 
 though it expressly names the locus in qvx) as part of the land to 
 be sold.(«/) 
 
 C. 491, ace. [See Gilmore v. Morgan, 2 
 J. J. Marsh. 65 ; Smith v. Smith, 4 Bibb, 
 81 ; Bowles v. Craig, 8 Cranch, 371 ; Har- 
 rison V. Talbot, 2 Dana, 268 ; Ilogers v. 
 Garnett, 4 Monroe, 271. Where there 
 was so great a surplus of land, namely, 
 eight hundred and seventy six acres, in a 
 patent for fifteen hundred and thirty-three 
 and one third acres — beyond what the 
 patent nominally called for; as it could 
 hardly be presumed to hare been within 
 the view of either of the parties, the court 
 decreed a conveyance of the surplus ; the 
 vendee to pay for the same at the average 
 rate per acre with interest, which the con- 
 sideration money mentioned in the con- 
 tract, bore to the quantity of land named 
 in the same. King v. Hamilton, 1 Peters 
 (U. S.), 311 ; see Hundley v. Lyons, 5 
 Munf. 342 ; Ascam ». Smith, 2 Penn. 
 211.] 
 
 (x) Calverley a. Williams, 1 Ves. jr. 
 210. [See Morss u. Elmendorf, U Paige, 
 277. Where, under a contract for the 
 conveyance of land, the purchaser got the 
 precise land he bargained for by the very 
 lin^s pointed out to him, and by the pre- 
 cise lines designated in the written contract, 
 equity wiU not, in a suit for specific per- 
 formance, compel a conveyance of ad- 
 ditional land, because a general expression 
 " homestead farm," used in the written 
 contract as synonymous with the descrip- 
 tion in the deed, may be construed to 
 mean more by certain artificial rules of 
 legal construction, but will leave the plain- 
 tilF to his remedy at law. Conover v. 
 
 Warden, 5 C. E. Green (N. J.), 266; see 
 Howell V. Saule, 5 Mason, 410.] 
 
 (y) Williams v. Morgan, 15 Q. B. 782. 
 [The articles of agreement for the convey- 
 ance of land are generally merged in the 
 deed made, delivered, and accepted in pur- 
 suance of them. Jones v. Wood, 16 Penn. 
 St. 25 ; Bull V. Willard, 9 Barb. 641 ; 
 Witbech v. Waine, 16 N. Y. 532, 535; 
 Homes w. Barker, 3 John. 506 ; "Williams 
 V. Hathaway, 19 Pick. 387 ; Colvin xi. 
 Schell, 1 Grant Gas. 226 ; Thompson o. 
 Christian, 28 Ala. 399. And a vendor sell- 
 ing in good faith is not resppnsible for the 
 goodness of his title beyond the extent of 
 the covenants in his deed. Falconer v. 
 Griffiths, 3 Md. Ch. 151 ; Smith v. Chaney, 
 4 Md. Ch. 246 ; Palconer v. Clark, 7 Md. 
 177 ; Carr v. Roach, 2 Duer (N. Y.), 20 ; 
 Earl V. De Witt, 6 Allen, 520 ; Spurr v. 
 Benedict, 99 Mass. 467; "«<«, 251, note, 
 337, note ; jiost, 549, and note. But where 
 one contracts for a specified consideration 
 to convey land at a future time, and to do 
 at a still later period other acts for the 
 benefit of the other contracting party, or 
 where the contract is for a series of acts to 
 be performed at successive periods, the 
 prior contract is superseded only as to 
 such of its provisions as are covered by 
 the conveyance made pursuant to its 
 terms. The agreement remains in full 
 force as to all its other provisions. Wit- 
 bech V. Waine, 16 N. Y. 535, 536; Bogart 
 V. Burkalter, 1 Denio, 125 ; Coxw. Henry, 
 32 Penn. St. 18 ; Colvin v. Schell, 1 
 Grant Cas. 226 ; Selden i/. Williams, 9 
 Watts, 9.] • 
 
CH. Vin. § m.] NEW STANDARD OF MEASUKE, 497 
 
 17. We may here observe, that old general or vague descrip- 
 tions, particularly in the case of copyholds, will in most cases be 
 held to pass the lands which have regularly been held under 
 them.(2;) 
 
 18. By the statute de terris mensurandis (a) an acre contains 
 one * hundred and sixty square perches ; so that every acre is a 
 superficies of forty perches long and four broad ; or in that pro- 
 portion, be the length or breadth more or less. 
 
 19. But where a man agreed to convey or actually con- 
 veyed,(6) any given number of acres of land, which were known 
 by estimation, the acres were taken according to the estimation 
 of the country where the land lies. 
 
 20. But by an act of the 5th of Geo. 4, a standard yard was 
 provided ; and the pole or perch in length is to contain Jive such 
 yards and a half, and all superficial measure is to be computed 
 by the said standard yard; and the rood of land is to contain 
 1,210 square yards according to the said standard yard ; and the 
 acre of land is to contain 4,840 such square yards, being 160 
 square perches, poles, or rods.(c) And by a later act, local or 
 customary measures are abolished.((i) 
 
 21. The act of Geo. 4 determines what now in law is the 
 superficial quantity of an acre of land. A question will no 
 doubt arise, whether it applies to contracts for land, or whether 
 it is not confined to goods, wares, merchandise. At all events, 
 the section applies only to sales by measure; and wherever 
 a purchaser is under a contract entitled to statute acres, the 
 measure will be regulated by this act.(e) 
 
 (z) Long V. Collier, 4 Rus. 267. Bethill, 1 Kol. R. 420, pi. 8 ; Andrew's 
 
 (a) 33 Edw. 1. ; and see 24 H. 8, c. 4 ; case, Cro. Eliz. 476. 
 
 2 Inst. 737 ; Co. Lit. 69 a ; Spelm. Gloss. (c) S. 15 ; 5 & 6 Will. 4, c. 63, s. 3. 
 
 0. Acra, particata terrm, pertica, pes far- {d) 5 & 6 Will. 4, c. 63, s. 6. 
 
 estce, roda terrw. Cow. Interp. v. Acre. (e) Consider 5 & 6 Will. 4, c. 63, s. 3 ; 
 
 (i) 47 E. 3, 18 a, pi. 35; 6 Co. 67 a; and 6 in connection with s. 15 of 5 Geo. 
 
 Morgan v. Tedcastle, Pop. 55; Floyd v. 4, c. 74; see Jones v. Giles, 10 Ex. 119; 
 
 32 
 
 11 Ex. 393. 
 
 [327] 
 
498 OF DEFECTS IN THE QUALITY OF THE ESTATE. [CH. Vlll. § IV. 
 
 SECTION IV. 
 
 OF DEFECTS IN THE QUALITY OF THE ESTATE. 
 
 2. 
 21. 
 3. 
 4. 
 5. 
 
 10. 
 
 11. 
 
 12. 
 13. 
 
 14. 
 
 I Caveat emptor. 
 
 Eight of way not stated. 
 
 Leggs V. Croker. 
 
 Gibson V. D'Este. 
 
 Want of right of way. 
 
 Sale after contract with railway. 
 
 Uncommonly rich water meadow. 
 
 Residence for a respectable family. 
 
 House in different county. — Where 
 house will not answer for purpose in- 
 tended. 
 
 Where purchaser supposed conveyance 
 would operate differently. 
 
 False description. 
 
 Of state of repair. 
 
 Notice to repair not disclosed. 
 
 15. Where purchaser knows the description 
 
 is false. 
 
 16. Description not binding, if purchaser 
 
 have not full knowledge. 
 
 17. Statement of annual produce of woods. 
 
 18. Error for and against the seller. 
 
 *19. Repairs not subject of compensation 
 when possession required. — Cutting 
 down ornamental or ordinary timber 
 after contract. 
 
 20. Faults in a mine do not avoid the con- 
 
 tract. 
 
 21. Latent defect which purchaser cannot 
 
 discover. — Sale with all faults. 
 
 22. The scienter. 
 
 23. In the case of title. 
 
 24. Concealment of defect. 
 
 25. Purchaser waiving his right. 
 
 1. "We have under a preceding head anticipated questions 
 arising upon rights of sporting, of common, or the like, to which 
 we must now refer. (a) 
 
 2. In most cases on this head, the rule caveat emptor applies, 
 and therefore, although there be defects in the estate, yet if they 
 are patent, the purchaser can have no relief.(6) 
 
 3. Thus, where a meadow was sold to the owner of a house 
 and ground adjoining without any notice of a footway round it, 
 and also one across it, which of course lessened its value, a spe- 
 cific performance was decreed with costs, as the purchaser did not 
 choose to inquire. (c) It was not a latent defect. Had he used 
 ordinary caution, he would have discovered the easement.(rf) 
 
 4. In a case (e) in which a high road had been stopped up by 
 the presentment of a grand jury, and the owner had opened a 
 
 (a) Supra, =. 1, pi. 43. 506 ; Gibson v. D'Este, 2 To. & Col. C. 
 
 (b) Introduction; Lowndes v. Lane, 2 C. 542; 1 H. L. Cas. 605 ; Sugd. H. ofL. 
 Cox, 263. [See Sherwood v. Salmon, 5 614; [Lallande v. Wentz, 18 La. An. 
 Day, 439; 2 Kent (11th ed.), 478, 479; 321 ;] see, as to representation, Scott v. 
 1 Story Eq. Jur. § 212.] Sykes, 2 Fos. & Ein. 191. 
 
 (c) Oldfield v. Eound, 5 Ves. 508; 1 (e) Legge v. Croker, 1 Bal. & Beat. 
 Bal. & Beat. 250. 507. 
 
 {d) Legge v. Croker, 1 Bal. & Beat. 
 [328] 
 
OH. VIII. § IV.] OF DEFECTS IN THE QUALITY OF THE ESTATE. 499 
 
 quarry there, and ploughed up the rpad and inclosed the same 
 with a wall, but persons were permitted to walk through the 
 gates, for, as it was said, recreation, and there was a gravel walk 
 across the demesne in the old direction — the owner, upon a 
 treaty for a lease, and upon the intended tenant observing the 
 gravel walk, told him that the footpath existed only by permis- 
 sion. After the lease was executed, the right to the footpath 
 was established at law ; but Lord Manners held, that the tenant 
 had no right to relief in equity, for there was nothing which 
 could be called wilful misrepresentation, and the lease was silent 
 on the subject. The lessor conceived himself to be, in point of 
 law, justified in asserting that there existed no right of way after 
 the presentment by the grand jury, and to be warranted in point 
 of fact, when after having erected gates, having directed his ser- 
 vants to prevent people passing he found it acquiesced in for 
 many years. This decision was highly approved of in the case 
 of Gibson v. D'Este in the House of Lords ; but it may be 
 doubted whether the facts, which are somewhat complicated, 
 authorized the decree.(/) ' 
 
 5. In the case of Gibson v. D'Este just referred to,(g') the per- 
 son *from whom the seller claimed by voluntary conveyance, 
 had, under a license from the parish by deed with stringent cove- 
 nants, inclosed a public way which ran in front of her house, 
 subject to a very small rent, which had been regularly paid by 
 the agent of herself, who continued the payments as agent of her 
 daughter, to whom she had conveyed. In allotting the property 
 for resale, the seller's surveyor and agent believed that they had 
 thrown the old road into a new road which was to be made by 
 the purchasers ; but it turned out that a few feet of the old road 
 were left within the principal lot, which the purchaser was bound 
 to inclose by a wall or iron railing, which he did after the con- 
 veyance. The parishioners asserted their right to the part of the 
 old road which had been inclosed by the purchaser, and upon 
 filing his bill to be relieved, it was held by the House of Lords 
 that the purchaser was not entitled to relief, for positive knowl- 
 edge was not brought home to the seller, of the deed, or of the 
 
 (/) Sagd. H. of L. 656 ; for the dis- (g) 2 Yo. & Col. N. S. -542 ; Sugd. H. 
 tinction between the two cases, lb. 660 ; of L. 614 ; 1 H. L. Cas. 605. 
 see 8 Hare, 263, n. 
 
 [329] 
 
500 OF WITHHOLDING A DOCUMENT. [CH. VIII. § IV. 
 
 nature of the payment, and the knowledge of her agent was not 
 obtained in the course of his agency. The decision in the pur- 
 chaser's favor in the court below, which was reversed, seems 
 however to be the correct one, for the seller's agent had full 
 knowledge of the deed, and had made the payments under it; 
 the right too was kept alive by perambulations, and the seller 
 was bound to know the nature of her title and of the payments 
 under it. It was a case in which the deed which would have 
 disclosed the defect was kept back, because it was supposed not 
 to be necessary to produce it, inasmuch as the old road had 
 been, as the seller's agants supposed, wholly thrown into the new 
 one. They had, however, failed to execute their intention, and 
 the consequent loss ought not to have been thrown on the inno- 
 cent purchaser. He had no means of discovering the true state 
 of the title : the seller and her agent had the deed in their pos- 
 session, and possessed full knowledge of the facts, for although 
 the seller had no actual knowledge of the deed, yet it was held 
 by a solicitor in the neighborhood for her and the parish, and her 
 agent had actual knowledge of the deed ; and indeed he swore 
 that the seller did clearly know that such right of way was 
 claimed, and that such payments were made by him on her be- 
 half as an acknowledgment of such right; but the Law Lords 
 explained away this evidence. There was of course no repre- 
 sentation that there was no right of way, but although the sell- 
 er's title was acquired expressly subject to the right, she assumed 
 to be owner of the fee of the whole of the lot, and did not pro- 
 duce the deed by which as against her the right of way was 
 established forever. The decision, it is apprehended, cannot be 
 relied upon. There was some dangerous doctrine laid down in 
 the house, as to not charging the appellant, as owner of the 
 estate, with the knowledge of the deed which was held for her 
 and constituted part of her title, or with the knowledge of her 
 agent by * whom payments were made for her under the deed, 
 or with the knowledge of the nature of the payments, although 
 regularly inserted in the accounts and allowed by her. (A) 
 
 6. Equity will not decree a specific performance of a contract 
 for sale of arable lands to which there is no right of way for 
 
 (A) Sugd. H. of L. 614-660. 
 [330] 
 
CH. VIII. § IV.] OF FALSE DESCRIPTIONS. 501 
 
 carts and carriages where the contract for sale is silent on the 
 point.(i) 
 
 7. Where a railway was on the property, and it was alleged 
 that the owner of the property had entered into a contract with 
 the railway company and then sold the property, the court ob- 
 served that the purchaser was bound by every contract that 
 would aifect his vendor. There was a railway ; if he chose not 
 to know it was there, he could not set up his ignorance in bar 
 of the contract.(A;) 
 
 8. A description, that the land was uncommonly rich water 
 meadow, was held to be immaterial, although the property was 
 imperfectly watered. The words were confined to the quality 
 of the land, and it professed to be nothing more than the loose 
 opinion of the auctioneer or vendor as to the obvious quality of 
 the land.(Z) 
 
 9. So where a house was represeoted as a residence fit for a 
 respectable family, the court said the purchaser might see the 
 house and judge for himself. That was merely puff.(m) 
 
 10. Where the subject of the contract was a house on the 
 north side of the river Thames, supposed to be in Essex, but 
 which turned out to be in Kent; the purchaser was told he 
 would be made a churchwarden of Greenwich, when his object 
 was to be a freeholder of Essex ; yet he was compelled to take 
 the house.(w) But this would not now be followed. And where 
 an agreement was for the purchase of a house for a coffee-house, 
 and it was found that a chimney could not be made convenient 
 for a coffee-house, the purchaser was not compelled to take it 
 for a purpose he did not want.(o) There is no case which is of 
 
 (t) Deune v. Light, 3 Jur. N. S. 627 ; prevented by the artifice of the vendor. 
 
 [S. C. 8 De G., M. & G. 774.] Taylor ti. Fleet, 4 Barb. 102, per Strong 
 
 (k) Meynell u. Surtees, 25 L. J. N. S. J.; Dugan v. Carlton, 1 Ark. 31.] 
 
 266 ; 3 Sm. & Gif. 101. (m) Magennis v. Fallon, 2 Mol. 561 ; 
 
 (I) Scott ti. Hanson, 1 Sim. 13 ; vide [ante, 3, note. The vendee will be held to 
 
 sup. p. 2; [ante, 2, 3, notes; Hutchinson have known what by reasonable diligence 
 
 V. Brown, 1 Clarke, 408 j 1 Story Eq. Jur. he could have known. Taylor v. Fleet, 4 
 
 §§ 199-202. The vendee must guard him- Barb. 108 ; see Attwood v. Small, 6 CI. & 
 
 self against the vendee's strong representa- Fin. (Am. ed.) 232, & notes.] 
 
 tions and commendations of the good (») Shirley v. Davies, 6 Ves. 678, dis- 
 
 quaEties of the land sold by personal ex- approved of. 
 
 amination and inquiry, unless such exam- (o) Magennis v. Fallon, 2 Mol. 588, 
 
 ination and inquiry are difScult or are 589. 
 
502 Of FALSE DESCRIPTIONS. [CH. VIII. § IV. 
 
 authority deciding that in case of a contract for a peculiar ob- 
 ject, having in the eye of the purchaser a particular value, from 
 circumstances not capable of pecuniary compensation, the 
 purchaser can be compelled to perform it if these be taken 
 away.(p) 
 
 11. But it is no bar to a specific performance, that the con- 
 veyance will not have the operation which the purchaser thought 
 it would. Where a tenant for life of a copyhold purchased the 
 reversion in the hope of extinguishing contingent remainders, 
 and afterwards finding that the conveyance would not affect the 
 remainders, brought a bill to be relieved against a security for 
 the purchase money; the court *gave him his option either to 
 pay the principal, interest, and costs, or to have his bill dismissed 
 with costs.(g) So where, under the legal construction of the 
 terms of an agreement for a lease, the option to determine the 
 lease was in the lessee only,^nd it was argued against a specific 
 performance, that this was contrary to the intention, the master 
 of the rolls said that a specific performance of a written agree- 
 ment cannot be denied because the meaning of the parties does 
 not appear.(?-) 
 
 12. But where a vendor gives a false description of the estate, 
 the purchaser may at law rescind the con tract, (/•!) although it be 
 provided that errors of description shall not vitiate the sale. As 
 where before the reform act an estate was stated to be but one 
 mile from a borough town, and it turned out to be between 
 three and four, the contract was held to be voidable by the pur- 
 chaser.(s) And of course the same rule would prevail in equity. 
 
 13. So where the estate was described to have lately under- 
 
 (p) 1 Rus. & My. 128 ; 1 Ves. 307 ; 13 (r) Price v. Dyer, 17 Yes. 356. [As to 
 
 Ves. 78 ; 2 Mol. 588, 589. [Where land a misrepresentation of a matter of law, see 
 
 was sold for building lots, and bounded on Martin v. Wharton, 38 Ala. 637 ; Chitty 
 
 a street sixty-six feet wide, the salewas Contr. (10th Am. ed.) 752; Russell u. 
 
 set aside because thestreet was only eleven Branham, 8 Blackf. 277.] 
 feet wide and thus very much diminishing (r^) [See Pringle v. Samuel, 1 Litt. 46 ; 
 
 the value of the land. Stewart a. An- Bostwick v. Lewis, 1 Day, 33, 250 ; Nor- 
 
 drews, cited and stated in Taylor v. Meet, ton v. Hathaway, 1 Day, 255.] 
 4 Barb. 105. See, where the lots con- (s) Duke of Norfolk v. Worthy, 1 Ca. 
 
 veyed had been dedicated as public streets, 337 ; Fenton v. Browne, 14 Ves. 144 ; 
 
 Champlin v. Laytin, 1 Edw. Ch. 471 ; v. Christie, 1 Salk. 28, by Ev. ; Trower 
 
 6 Paige, 189.] v. Newcombe, 3 Mer. 704. 
 
 (?) Mildmay v. Hungerford, 2 Ver. 243. 
 
 [331] 
 
CH. vnr. § IV.] OF false descriptions. 503 
 
 gone a thorough repair, whereas it was in a complete state of 
 ruin, and ordered to be pulled down by the district surveyor, the 
 purchaser was allowed to rescind the contract.(<) And where 
 the state of the house was not perfectly visible to everybody, 
 and the state of the repairs was falsely represented by the seller, 
 knowing that the house had the dry rot, without communicating 
 that fact to the purchaser ; the purchaser had a compensation, 
 with which he was satisfied.(M) 
 
 14. So where the purchaser of a leasehold house was aware of 
 the ruinous state of the premises, but no mention was made at 
 the sale of a notice to repair given to the vendor by the lessor, 
 on the day before the sale, under which the lessor reentered and 
 evicted the purchaser, the latter recovered the deposit.(a;) 
 
 15. But if the purchaser knew that the description was false, 
 he cannot, it seems, take advantage of it either at law or in 
 equity.(.«i) As where an estate was incorrectly described as 
 being within a ring fence, which might not be a subject of com- 
 pensation, the purchaser was excluded from insisting upon the 
 objection to complete the contract. He saw the farm before he 
 purchased ; he had lived in the neighborhood all his life, and this 
 variance was the object of sense, and he was not entitled to 
 compensation : («/) it was like a house without a roof or windows 
 warranted as in perfect repair. And in another case, vhere 
 there was a representation as to the state of repair, it was said 
 that as to warranty, if the defect was patent or * obvious, the 
 warranty would not bind.(z) It would be no excuse for a man 
 who had himself personally inspected a house for the purpose of 
 seeing whether it was in a proper state of repair, afterwards to 
 contradict his own judgment, on the ground that he was not a 
 
 («) Loyes !). Rutherford, K. B. 16 May, 498; Dyer v. Hargrave, 10 Ves. 508; 
 
 1809, MS. Kingsley v. Young, 17 Ves. 468; Fare- 
 
 (m) Grant v. Munt, Coop. 173. brother v. Gibson, 1 De G. & J. 602 . 
 
 (x) Stevens v. Adamson, 2 Star. 422. Craddock v. Shirley, 3 A. K. Marsh. 288.] 
 
 (x^) [1 Story Eq. Jur. § 202. So if by (y) Dyer u. Hargrave, 10 Ves. 595. 
 
 using due diligence the purchaser might Consider White v. Cuddon, 8 CI. & Fin. 
 
 have had knowledge of the defect. James 792 ; Ld. Brooke v, Eounthwaite, 5 Hare, 
 
 V. LichBeld, L. E. 9 Eq. 51; 2 Dart. V. 380; Shackleton v. Sutcliffe, 1 De G. & 
 
 & P. (4th Eng. ed.) 988. So, if after hav- Sm. 609. 
 
 ing become acquainted with the defect, he, {z) Grant v. Munt, Coop. 173. [See 
 
 without insisting thereon, proceeds with 2 Kent (11th ed.), 484; Schuyler w. Russ, 
 
 the treaty. Fordyce v. Ford, 4 Bro. C. C. 2 Gaines Eep. 202.] 
 
 [332] 
 
504 
 
 WHERE DESCRIPTION IS FALSE. [CH. Vni. § IV. 
 
 surveyor, and was unable to say whether the house was in a suf- 
 ficient state of repair or not.(a) 
 
 16. But where a particular description is given of the estate, 
 which turnsout to be false, and the purchaser cannot be proved 
 to have had a distinct knowledge of the actual state of the sub- 
 ject of the contract, he will be entitled to a compensation. As 
 where the particular, contrary to the fact, described the house as 
 being in good repair, and the farm as consisting of arable and 
 marsh land, in a high state of cultivation, sufficient knowledge 
 was not proved against the purchaser; and admitting that he 
 might, by minute examination, make that discovery, he was not 
 driven to that examination ; the other party having taken upon 
 him to make a representation. (6) 
 
 17. A representation of the past average yearly produce of 
 woods may, although incorrect, bind a purchaser, if he had suf- 
 ficient information to lead him to inquire. But such a general 
 representation, though literally true, yet if the produce was made 
 by improperly racking the woods, would be a fraud. The 
 maxim, caveat emptor, does not apply where there was a positive 
 representation essentially material to the subject sold, and which 
 at the same time was false in fact.(c) 
 
 18. "Where trustees for sale of a manor, stated generally in the 
 particulars that the fines were arbitrary, which was not correct, 
 but added that the clear profits on an average of eight years 
 had been 150/. a year, whilst they really exceeded 200/. a year; 
 it was held that the purchaser was not entitled to any compen- 
 sation ; (d) but, of course, an incorrect statement of the amount 
 of fines payable by the copyholders would be a subject for com- 
 pensation. (c) 
 
 19. Where a house is described to be in good repair, if the 
 purchaser wanted possession of the house to live in at a given 
 
 (a) Per cur. 25 Bear. 148. would materially enhance the yalue of the 
 
 (6) Dyer v. Hargrave, 10 Ves. 505 ; property, he is in equity bound to make 
 
 Brandling v. Plummer, 2 Drew. 427 ; his representation good. Bradley v . Bos- 
 
 Drysdale v. Mace, 2 Sm. & Gif. 225; 5 ley, 1 Barb. Ch. 125; Parham v. Kan- 
 
 De G., M. & G. 126; see HoUiday v. dolph, 4 How. (Miss.) 435.] 
 
 Morgak, 1 EU. & Ell. 1, warranty of a (c) Lowndes v. Lane, 2 Cox, 363. 
 
 horse. [If the Tendor of land, knowing (d) White v. Cuddon, 8 01. & Fin. 766 ; 
 
 that the purchaser is unacquainted with Sugd. H. of L. 589. 
 
 its situation or value, makes a false repre- (e) Hoy v. Smythies, 22 Beav. 510. 
 sentation as to any matter, which if true 
 
CH. VIII. § IV.] WHERE SALE IS WITH ALL FAULTS. 505 
 
 period, by which time the repairs could not be completed, he 
 ought not, it seems, to be bound to complete the contract.(/) 
 And a purchaser may be released if ornamental timber exhibited 
 on a map is cut down after the contract.(g-) This case proves 
 that a purchaser is entitled to the subject as described, and that 
 the alteration of it after the contract, but before the completion 
 of it, in a subject which admits not * of compensation, avoids 
 the contract as against the purchaser. But ordinary timber cut 
 down after the contract may be a subject of compensation. (A) 
 
 20. If a mine prove after the purchase to be full of faults, 
 and although the coal is not worked out, nature has done what 
 the purchaser knew beforehand it often does, namely, caused an 
 interruption of the vein of coal; that is one of the incidents 
 which must be calculated upon in buying mining property, and 
 therefore cannot be a reason for avoiding the contract ; (i) but 
 taking possession of a mine is not an acceptance of the title. (Zc) 
 
 21. Where the defect is a latent one, and the purchaser cannot 
 by the greatest attention discover it, if the vendor be aware of it, 
 and do not acquaint the purchaser with the fact, the contract is 
 not binding at law or in equity, although he bought the estate 
 with all faults.(l) This question has generally arisen on sales of 
 ships. Where a ship so sold, but improperly described, was kept 
 afloat so that her defects could not be discovered ; that was 
 deemed a fraud,(j») but unless there be fraud, the purchaser 
 buying "with all faults" cannot be relieved.(w) The condition 
 excuses the seller from stating the faults within his knowledge, 
 but he must not use any artifice to conceal them from the pur- 
 chaser. Where the seller knew of the defect, and did not dis- 
 close it, although he also knew that the purchaser could not by 
 any attention whatever possibly discover it, there is much more 
 difficulty. In such a case no artifice need be resorted to by the 
 
 (/) Sup. ch. 6. see 1 Bal. & Beat. 515 ; Early v. Garrett, 
 
 ig) Magennis v. Fallon, 2 Mol. 588. 9 B. & C. 928 ; Bywater v. Richardson, 1 
 
 (A) S. C. Ad. & El. 508 ; Pickering v. Dowson, 4 
 
 (t) Kidgway v. Sneyd, 1 Kay, 636, per Taunt. 779 ; Jones v. Bowden, lb. 847 ; 
 
 V. C. Shepherd v. Kain, 5 B. & Aid. 240 ; Free- 
 
 (h) Haywood u. Cope, 25 Bear. 140. man v. Baker, 5 B. & Ad. 797 ; [Taylor 
 
 (1) Mellish i>. Motteux, Peake, 115. v. BuUen, 5 Exch. 779; Chitty Contr. 
 
 (m) Schneider v. Heath, 3 Camp. 506. (10th Am. ed.) 484, 485.] 
 
 (n) Bagleholew. Walters, 3 Camp. 154; 
 
 [333] 
 
506 OF CONCEALMENT OF DEFECTS. [CH. VIII. § IV. 
 
 seller to conceal the defect from the purchaser, and yet the man 
 who sells such a subject with all its faults without disclosing the 
 concealed one, seems only, in a moral view, on a level with him 
 who, making a similar sale of a subject where a defect might by 
 diligence be discovered, resorts to artifice to prevent the pur- 
 chaser from coming to the knowledge of it. The question is 
 not of more or less of turpitude, but whether in either case a 
 fraud has not been committed. The rule is not that the seller 
 may use his skill to conceal, and that the purchaser is to exercise 
 his to discover the defects. The distinction therefore is but a 
 thin one between a man who has plastered over a rent in the 
 main wall and papered it over, and then sells, subject to all 
 faults, knowing that the purchaser cannot discover this fatal one, 
 which he does not point out, and a man who, knowing that the 
 defect is thu^ concealed, sells the estate * with all its faults with- 
 out disclosing this, which he knows cannot be discovered : in 
 either case the purchaser is deceived. In the first case, no 
 doubt, the seller by his act hides the defect;, but there is no posi- 
 tive fraud in hiding the defect ; the fraud is committed, or at 
 least consummated, when the seller by his silence induces the 
 purchaser to buy without the means of knowledge. Now in 
 this respect the sellers in the two cases are upon a par, for each 
 is aware that the defect is hid, and each is silent. Can it, in 
 point of honesty, matter that the one covered the defect, and 
 that the other only knew that it had been covered? (w^) 
 
 22. But where even the estate is sold generally and not sub- 
 ject to all faults, the ground and basis of an action in a case of 
 this nature, for recovery of a deposit, where the contract is in 
 fieri, or of damages, where the contract is actually executed, is 
 the scienter; and therefore, if the vendor was not aware of the 
 defect, he will not be answerable for it. Nor will trifling defects 
 be a sufficient foundation for such an action. Thus (o) where a 
 purchaser brought an action against a vendor, to recover damages 
 for having sold him a house, knowing it had the dry rot ; it ap- 
 peared that the house was situated in a clayey soil, and that the 
 
 (ni) [See the discussion of this subject (o) Bowles u. Atkinson, N. P. MS. ; 
 
 in Paddock v. Strobridge, 29 Vt. 470 ; Legge v. Croker, 1 Bal. & Beat. 506 ; see 
 
 Hanson v. Edgerly, 29 N. H. 343 ; Chitty Grant v. Munt, Coo. 173, sup. 
 Contr, (10th Am. ed.) 756, & notes.] 
 
 [334] 
 
CH. VIII. § IV.] OF CONCEALMENT OF DEFECTS. 607 
 
 floor lay near the ground, by which some of the timbers had 
 rotted ; but the vendor was not aware of the defects, and the 
 purchaser was nonsuited. Lord Kenyon said, the circumstances 
 that had been proved in this case might be described by a word 
 that was used by one of the witnesses ; they were mere baga- 
 telles. If these small circumstances were to be the foundation 
 of an action, every house that was sold would produce an ac- 
 tion. If a broken pane of glass that might be found in a garret 
 window, perhaps, had not been described by the seller, it would 
 be the ground of an action. If he was to consider himself as a 
 witness in the cause, he could say he had met with something 
 of this kind, and he never thought himself imposed upon, be- 
 cause now and then some rotten boards and rotten joists might 
 be found about a house. Besides, there was no imposition, no 
 mala fides in this case. 
 
 23. And the same rule prevails where the question turns upon 
 title, and the estate is agreed to be sold with ail defects of title. 
 Where, therefore, a leasehold estate, for which rent had been 
 paid, had been sold by the lessee as a fee simple, which alleged 
 fee simple afterwards became vested in assignees of a bankrupt, 
 who sold such right or title as might be theirs, with all faults 
 and defects, if any, and the purchase money was paid, and 
 afterwards the lessor recovered the property ; the purchaser was 
 held to have no right to 'recover the purchase money, although a 
 false statement had been made to him as to the nonpayment of 
 rent, for the concealment must be fraudulent, and the statement, 
 though false, was found by the jury not be fraudulent.(p) 
 
 24. Although the purchaser might, with proper precaution, 
 have discovered the defect ; yet if, during the treaty, the vendor 
 industriously concealed it, equity will not assist him.(p^) Thus, 
 where the estate was represented as clearing a net value of 901. 
 per annum, and there had been an industrious concealment of a 
 necessary repair of a wall during the treaty, the bill against the 
 purchaser was dismissed, but without costs.(g) So where, upon 
 
 (p) Early v. Garrett, 9 B. & C. 928 ; (q) Shirley v. Stratton, I Bro. C. C. 
 post, ch. 13, s. 2. 140. [See Warner v. Daniels, 1 Wood. 
 
 (pi) [Chitty Contr. (lOth Am. ed.) 753 & M. 90.] 
 et seq. & notes ; Taylor v. Fleet, 4 Barb. 
 102.] 
 
 [335] 
 
508 OF CONCEALMENT OF DEFECTS. [CH. VIII. § .IV. 
 
 the sale of a house, the seller being conscious of a defect in a 
 main wall, plastered it up and papered it over, it was held that, 
 as the seller had actually concealed it, the purchaser might re- 
 cover.(r) But in the absence of warranty or active deceit, the 
 rule caveat emptor applies — in the case of a house, for example, 
 he must himself ascertain whether it is in a safe condition for 
 habitation. (s) And, as we have already seen, where upon the 
 sale of an advowson there was no concealment, the circumstance 
 that the rectory was liable to a charge to Queen Anne's bounty 
 was held not to give the purchaser any right to compensation, 
 and he was fixed with the costs of his suit to establish that 
 right.(0 
 
 25. If a purchaser having a right to rescind a sale upon the 
 ground of fraudulent representations, continue to deal with the 
 subject of the sale as owner after he is aware of the fraud, he 
 will be held to have waived his right of action. (m) But although 
 a purchaser waive the objection to a gross misdescription of the 
 property, yet upon a further discovery of objections arising out 
 of the misdescription he may rescind the contract. (a;) 
 
 (r) 4 Taunt. 785. Giff. 384 ; 3 De G.& J. 329 ; 7 H. LCas. 
 
 (s) Keates v. Earl of Cadogan, 10 C. B. 806. 
 
 591 ; a case of landlord and tenant ; Cook («) Campbell v. Fleming, 1 Ad. & El. 40. 
 
 V. Waugh, 2 Giff. 201. (x) Stanton v. Tattersall, 1 Sm. & Gxf. 
 
 (t) Edwards-Wood v. Marjoribanks, 1 529 ; 17 Jur. 967. 
 
* CHAPTER IX. 
 
 OF AGREEMENTS TO ACCEPT A TITLE, AND OF WAIVING OBJEC- 
 TIONS TO TITLE, AND OF THE REMEDIES WHERE THE TITLE IS 
 IN DISPUTE. 
 
 SECTION I. 
 
 OF AG:fBEMENTS TO ACCEPT A TITLE, AND OP WAIVING OBJECTIONS. 
 
 1. Eight to good title, although seller claims 
 
 under purchaser. 
 
 2. General right to good title. — Condition 
 
 to accept the title as it is. 
 
 3. Must be free from ambiguity. 
 
 4. Stipulation as to title, where no'represen- 
 
 tative of legal estate. 
 
 5. Sale under power without the notice re- 
 
 quired. 
 
 6. Preemption: title. 
 
 7. Clarke v. Faux. 
 
 8. Corrall v. Cuttell. 
 
 9. Sale of benefit of proposal : tolls. 
 
 10. Parties bound to fair performance of con- 
 
 ditions. 
 
 11. Contract to be void if purchaser's counsel 
 
 object to title. 
 13. Solicitor buying from client with a title 
 
 which he accepted. 
 13. Possession a, waiver of objections. — 
 
 Should be put in issue. 
 
 15. Waiver a question of fact. — Forcible 
 
 possession by purchaser. 
 
 16. Right of sporting first disclosed in ab- 
 
 stract. 
 
 17. Possession with long delay, a waiver. 
 
 18. Although purchaser swear he did not 
 
 mean it. 
 
 19. Lease by a purchaser to one in posses- 
 
 sion. 
 
 20. Possession under contract no waiver. 
 
 21. Or with vendor's- concurrence. 
 
 23. And acts of ownership do not bind. 
 
 24. Reselling where a waiver. 
 
 26. Or preparation of conveyance. 
 
 28. Notice of^limited title binding. 
 
 29. Purchaser not bound by his counsel's 
 
 opinion. 
 
 30. Nor by his solicitor's statement to coun- 
 
 sel, if seller file a bill. — Waiver by 
 counsel. 
 
 31. Objection taken when too late to be rem- 
 
 edied, a device. 
 
 32. Purchaser accepting abstract may prove 
 
 title bad. 
 
 33. Waiver of objections to title, but not to 
 
 proof. 
 
 34. Acquiescence a waiver. 
 
 37. Possession ; interest and costs. 
 
 38. Seller turning purchaser out of posses- 
 
 sion has no equity. — Waiver restricted 
 by subsequent acts. 
 
 40. Waiver, and then bad title produced. 
 
 41. Purchaser rejecting title should relin- 
 
 quish possession. 
 
 42. Purchaser keeping back one objection. 
 
 43. Opinion taken on title, no waiver of col- 
 
 lateral objection. 
 
 44. Authority of agent to waive. 
 
 45. Letter by solicitor's clerk, without au- 
 
 thority. 
 
 We may first consider the cases where a purchaser by his 
 contract is precluded from calling for a title, or where he has by 
 his conduct after the contract waived his right. 
 
 [336] 
 
610 RIGHT TO GOOD TITLE. [CH. IX. § I. 
 
 1. If the contract stipulate that the seller shall deduce and 
 make a good title, he must do so although the seller claim under 
 the purchaser as a mortgagee, with a power of sale, and there- 
 fore the purchaser *was fully aware of the objection, which was 
 that the property was out of repair, and the landlord had a right 
 of reentry.(a) 
 
 2. The right to a good title is a right not growing out of the 
 agreement be'tween the parties, but is given by the law. (6) (1) 
 But a vendor may, of course, stipulate that the purchaser shall 
 accept the title, such as it is,(c) or shall complete on a given day 
 
 (a) Burnett u. Wheeler, 7 M. & W. 364. 251, note, 326, note jposi, 549, note; Pom- 
 
 (b) Hall V. Betty, 4 M. & G.410; Geog- eroy v. Drury, 14 Barb. 418; Hunter v. 
 hegan v. Connolly, 8 Ir. Ch. Eep. 598. O'Neil, 12 Ala. 37 ; Greenwood v. Ligon, 
 [The vendor must be able to make a mar- 10 Sm. & M. 615.] 
 
 ketable title. Allen v. Atkinson, 21 Mich. (c) Wilmot v. Wilkinson, 6 B. & C. 
 
 360, 361 ; Preetly v. Barnhart, 51 Penn. 506 ; Groom v. Booth, 1 Drew. 548. [See 
 
 St. 279 ; Swain i,. Fidelity Ins. Co. 54 Brown v. Haff, 5 Paige, 235 ; Asbworth v. 
 
 Penn, St. 455; Linkous v. Cooper, 2 W. Mounsey, 9 Exch. 175; Keyset). Heydon, 
 
 Va. 67; Prothero «. Smith,* 6 Rich. Eq. 20 L. T. 244; Tweed v. Mills, L. R. 1 C. 
 
 324 ; Watts o. Waddle, 1 M'Lean, 200 ; P. 39 ; Hume v. Bentley, 5 De G. & S. 
 
 Regney v. Coles, 6 Bosw. 479 ; Swayne v. 520 ; NichoUs v. Corbett, 3 De G., J. & S. 
 
 Lyon, 67 Penn. St. 436; post, 386, note. 18; Hanks v. Pulling, 2 Jar. N. S. 372; 
 
 The purchaser has a right by law to de- 6 El. & Bl. 659 ; Off. Man. of Shccrness 
 
 mand a good title so long as the contract W. W. Co. v. Poison, 3 De G., P. & J. 
 
 remains executory; after a conveyance is 36 ; Fry Specif. Perform. (2d Am. ed.) 464, 
 
 executed by all the necessary parties, the § 832; Chambers v. Tulane, 1 Stockt. (N. 
 
 vendee can look only to his covenants. J.) 146.] 
 Thompson v. Christian, 28 Ala. 399 ; ante, 
 
 (1) But the rule of law is otherwise on the sale of goods where there is no implied 
 warranty ; and if there be no fraud, a vendor is not liable for a bad title unless there is 
 an express warranty, or an equivalent to it by a declaration or conduct. It would 
 seem, however, that there are few cases in which the purchaser losing the goods might 
 not recover the purchase money, as on a, consideration that failed; and the affirming 
 by the seller that the property is his own, amounts to a warranty, and of course fraud 
 is an exception to the general rule; and with respect to executory contracts of pur- 
 chase and sale, when the subject is unascertained, and is afterwards to be conveyed, it 
 would, it is said, probably be implied that both parties meant that a good title to that 
 subject should be transferred in the same manner as it would be implied under similar 
 circumstances that a merchantable article was to be supplied. Morley.u. Attenborough, 
 3 Ex. 500 ; Chapman v. Spiller, 14 Q. B. 622 ; Hall v. Conder, 3 Jur. N. S. 366. [It 
 is very generally held in the United States that upon all sales of personal property by 
 one in possession, the law implies a warranty of title. The possession of the vendor is 
 equivalent to an affirmation of title. Chitty Contr. (10th Am. ed.) 471, and note, 
 and cases cited; Story Sales (4th ed.), 367 et seq.] In sales under the incumbered 
 estates act in Ireland a parliamentary title is conferred, 12 & 13 Viet. c. 7; 15 & 16 
 Vict. c. 67 ; 16 & 17 Vict. c. 64. 
 
 [33T] 
 
CH. IX. § I.] EIGHT TO GOOD TITLE. 511 
 
 with a conveyance of the equitable fee, although he is to be en- 
 titled to have the legal estate subsequently got in at his expense, 
 as far as the seller may be able to obtain it.(d) Where trustees 
 of a land society stipulated, upon a sale by auction, that they 
 should only enter into a covenant that they had not incumbered, 
 as they had no beneficial interest, and that no objection should 
 be taken to the right of the vendors to hold all or convey the 
 property, it was held that the purchaser was bound to accept a 
 simple conveyance from the trustees.(e) But a condition to take 
 a title without its usual guards, e. g. a leasehold title without 
 the lessor's title,(/) or to cast upon the purchaser a responsibility 
 which belongs to the seller, for example, to obtain the lessor's 
 consent to an assignment, will not be inferred from ambiguous 
 expressions, or from notice of the liability ; (§■) but the purchaser 
 will be allowed to take advantage of any ambiguity. (A) If, as 
 the court observed,(t) a vendor sells property under stipulations 
 which are against common right, and place the purchaser in a 
 position less advantageous than that in which he otherwise 
 would be, it is incumbent on the vendor to express himself with 
 reasonable clearness ; if he uses expressions * reasonably capable 
 of misconstruction ; if he uses ambiguous words the purchaser 
 may generally construe them in the manner most advantageous 
 to himself, and accordingly in the case in which this observation 
 was made, the purchaser upon an expression which could hardly 
 be considered doubtful was allowed contrary to the clear inten- 
 tion, to raise an objection upon an earlier lease than that sold, 
 and on that ground to escape from the contract. 
 
 (d) Off. Man. of Sheerness W. W. Freme v. Wright, 4 Mad. 364 ; Molloy v. 
 Co. 0. Poison, 29 Beav. 70 ; supra, p. Sterne, 1 Dru. & Wal. 585, eX qu. ; Taylor 
 35. V. Mai-tindale, I Yo. & Col. C. C. 658; 
 
 (e) Lethbridge v. Klrkman, 25 L. J. N. Noiiaille v. Flight, 7 Beav. 521. 
 
 S. 89. (A) Seaton v. Mapp, 2 Col. 556 ; 3 Ex. 
 
 (/) Souter V. Drake, 5 B. & Ad. 992; 513, et qu. some of the views; sup. p. 16, 
 
 Spratt u. Jeffery, 10 B. & C. 249; Shep- the" cases collected. 
 
 herd v. Keatley, 1 Cro., Me. & Eos. 117; (i) Seaton v. Mapp, 2 Col. 556; the 
 
 Wheeler v. Wright, 7 M. & W. 359; Lea- doctrine in 3 Ex. 513, as to the indistinct 
 
 them V. Allen, 1 Ir. Ch. R. 683; Wright statement in the auctioneer's catalogue, 
 
 V. Griffith, lb. 695 ; Fenelly v. Anderspn, and the nature of the auctioneer's author- 
 
 Ib. 706 ; Hume v. Bentley, 5 De G. & Sm. ity from his principal who adopted the 
 
 520. sale, touches upon dangerous ground ; 
 
 (g) Lloyd v. Crispe, 5 Taunt. 249, sup. ; Brumfit v. Morton, 3 Jur. N. S. 1 198. 
 
 L338] 
 
512 EIGHT TO GOOD TITLE. [CH. IX. § I. 
 
 3. And where, upon the sale of a leasehold, it was stipulated 
 that the seller was to produce a good title commencing from the 
 
 freeholder [but no title or evidence of title to be produced or 
 authenticated prior to the date of the lease granted to the seller], 
 it appeared that the lease was preceded by a contract for it, and 
 that the seller had mortgaged his equitable interest, and upon a 
 bill filed by the seller it was held that he could only have a decree 
 upon producing the title from the contract down to the lease, for 
 the language was ambiguous, and it was considered that the 
 part between crotchets amounted to" a representation that the 
 leasehold title did begin with the lease. (7) 
 
 4. So in a case (k) where a leasehold estate had been assigned 
 by a man to the trustees of his marriage settlement, and his wife 
 survived him, and under his will and under the settlement she 
 became entitled to the whole beneficial interest, and her execu- 
 tors sold the property at a time when there was no personal rep- 
 resentative to the survivor of the trustees under the settlement ; 
 upon the sale the conditions stated the facts correctly (but was 
 silent as to the want of a representative of the legal estate), and 
 stipulated that they would, within seven days, deliver to the pur- 
 chaser an abstract of the lease, and of the wills of the husband 
 and wife, but they were not to be called upon to deduce the 
 lessor's title or any earlier title, nor should the subsistence of the 
 lease be questioned, " but the purchaser should be satisfied with 
 an assignment from them of the beneficial interest," The mas- 
 ter of the rolls dismissed the claim of the seller with costs, for 
 the purchaser was to have the whole beneficial interest, and not 
 such beneficial interest only as was vested in the vendors. This 
 was putting a construction on the words of the condition which 
 they do not seem to bear, but the condition might well deceive 
 a purchaser as to the legal estate. 
 
 * 5. So where a mortgagee with a power of sale sold with a 
 condition that as the sale was made by a first mortgagee under 
 a power of sale, the purchaser should not be entitled to receive 
 any abstract or evidence of the incumbrances subsequent to the 
 mortgage, although notice of such incumbrances might appear 
 
 {j) Rhodes a. Ibbetson, 4 De G., M. & 2 Sm. & Gif. 225 ; 5 De G., M. & G. 103 ; 
 G. 787 ; 23 L. J. 459 ; Drysdale v. Mace, Symons v. James, 1 Yo. & Col. C. C. 487. 
 
 (k) Smith V. Ellis, 14 Jur. 682. 
 
 [339] 
 
CH. IX. § I.] SALE UNDER POWER. CLARKE V. FAUX. 513 
 
 in the title to be shown ; it appeared that notice was required to 
 be given under the power of sale, but none had been given, as 
 the mortgagor waived it, but before the waiver he had executed 
 othe^r mortgages, and the persons said to claim under which had 
 subsequently to the sale ratified it by deed ; the purchaser was 
 allowed to recover his deposit, as the title was not the simple 
 one set forth by the condition, but depended upon the operation 
 of the waiver and the title of the subsequent mortgagees.(;) 
 
 6. Where a lease was granted for two years, and it was 
 agreed that the lessee should have the right of purchasing the 
 property at the end of or during the term at a price fixed ; it 
 being understood that the lessor was possessed of the premises 
 for his own life, and the life of a third person named, and of the 
 survivor of them, it was held that the lessee was entitled to re- 
 quire a title for the two lives, for the description only operated 
 to limit the liability to make a title in fee, and did not compel 
 the purchaser to take such interest as the lessor had.(»i) 
 
 7. In Clarke v. Faux,(w) an estate was sold by assignees of a 
 bankrupt, and a good title was to be made. One of the assign- 
 ees was the. purchaser, and took possession, and agreed to sell 
 to Clarke, who entered into possession, and paid part of his 
 purchase money. A dispute was terminated by an agreement 
 that Clarke should pay the residue of the purchase money on a 
 day named, with interest, upon the seller to him making a good 
 title to the premises, or if such title should not then be com- 
 pleted, upon the seller executing at his own expense a bond to 
 complete such title, and to convey the estate as soon as the 
 same could be completed. A good title could not be made by 
 the seller to Clarke, but this seller recovered the residue of the 
 purchase money at law, having tendered a bond conditioned for 
 making a good title to the purchaser.(o) The court of common 
 pleas held, that the purchaser had bound himself to pay the 
 money, on the single condition of having the bond executed. 
 But upon a bill filed by this purchaser for an injunction and a spe- 
 cific performance if there was a good title, and if not a return 
 of the deposit, it was held that the meaning of the parties was, 
 
 (I) Foster v. Hoggart, 14 Jur. 757. (n) 3 Eus. 320. 
 
 (m) Wortlfington v. Warrington, 5 C. (o) Willett v. Clarke, 10 Pri. 207. 
 B.636. 
 
 VOL. I. 33 
 
514 DEED ALLEGED TO BE FORGED. [CH. IX. § I. 
 
 that the money was to be paid on the day named, although the 
 title might not then tje completed; but subject always to this 
 condition, that the vendor had the power to complete it, and 
 that it was not intended that it should be * paid if the vendor 
 did not possess such power. The stipulation as to the bond 
 was merely intended to put a guard upon the money >being paid, 
 against delay in doing that which it was assumed the vendor 
 had the means of doing, and which by the agreement he en- 
 gaged to do, viz., to make a good title to the estate. The title, 
 therefore, was referred to the master, the purchaser having 
 brought the money into court upon obtaining an injunction. 
 When the decision upon this point was made in the court of 
 chancery, it was not known that the court of law had pro- 
 nounced a unanimous judgment the other way, although it was 
 of course known that the seller had recovered at law. If the 
 actual judgment had been known it would have been difficult to 
 obtain such a decree, for the construction of legal instruments 
 must be the same both in equity and at law, and a court of 
 equity, unless there is an equitable ground arising out of a con- 
 tract, has no power to affix to it another construction, and over- 
 rule a legal decision upon it. 
 
 8. In a case [p) where the agreement stated that an alleged 
 deed was set up by a third party, which the seller had sworn to 
 be a forgery, and that counsel, whose opinion might be seen, 
 were of opinion that the concurrence of the alleged grantee was 
 not necessary to make a good title, and it was stipulated that 
 the purchaser should not make any objection on account of the 
 deed, or be entitled to the concurrence of the grantee in it, but 
 might, if he thought fit, retain a portion of the purchase money 
 as an indemnity ; upon an action brought by the purchaser for 
 his deposit the jury found a verdict for him, and found that the 
 deed was the deed of the seller ; but the court of exchequer, 
 upon argument, held that if the agreement contained a warranty 
 that the deed was a forgery, yet the purchaser, because the alle- 
 gation was untrue, could not rescind the contract, for the con- 
 tract provided for the case of the deed being genuine by the 
 indemnity, so that the purchaser's remedy, if there was a war- 
 ranty, was by an action for damages. They refused to decide 
 
 (/)) Corrall v. Cuttell, 4 M. & W. 734. 
 
 [340] 
 
CH. IX. § I.] CONDITION TO AVOID CONTRACT. 515 
 
 as to the power of the seller to make a title, without the con- 
 currence of the grantee, because the agreement stated the opin- 
 ions on that point, and the provision that the purchaser was 
 not to make any objection on account of the deed interdicted 
 him from every species of objection arising out of the deed. 
 Upon a bill filed by the seller, a specific performance was de- 
 creed, the court holding itself bound by the decision of the court 
 of law.(g') The true ground in equity must have been that the 
 condition provided for the case of the deed being genuine, for if 
 there was a warranty that the deed was a forgery, which was 
 false, although not fraudulent, equity would not, it should seem, 
 have specifically en forced, the agreement for the seller after the 
 warranty was broken — *for the jury found that the deed was a 
 valid one — and left the purchaser to his remedy at law, unless 
 the agreement had clearly provided that the warranty should be 
 accepted in lieu of title. Equality is equity. 
 
 9. A man simply buying the benefit of a proposal to take 
 a building lease, signed by the intended lessee in the lessor's 
 agent's books, cannot ask equity to relieve him, whether the 
 landlord be bound or not.(r) So a contract to sell an agreement 
 for a lease does not imply a title in the lessor to grant it, and it 
 is no defence to an action on the contract that the lessor has no 
 title.(A) And where a title to tolls was deemed doubtful in re- 
 gard to the court out of which probate had issued, the seller was 
 held not to be bound to make good the representation, as he 
 contracted under the belief that he had a title in himself.(<) 
 Where A. had purchased the estate from B., and agreed to 
 demise part of it to C. with a purchasing clause, and C. agreed 
 in case of such purchase and conveyance to accept the title of 
 A. without dispute, and an abstract of title was to be furnished ; 
 C, having elected to purchase, was held bound to accept the 
 title, although the legal estate was outstanding in a mortgagee 
 under B., who had been paid off before A. purchased.(M) 
 
 10. We have seen that a condition to avoid a contract if a 
 
 (q) Cattell v. Corrall, 3 Yo. & Col. the remedies of a mortgage of tolls see 
 
 413 ; 4 M. & W. 734. Ld. Crewe v. Edleston, 1 De G. & J. 93 ; 
 
 (r) Baxter v. ConoUy, Ij. & W. 576. Fripp v. Chard Ry. Co. 11 Hare, 241. 
 (s) Kintrea v. Preston, 1 H. & N. 357. (u) Duke v. Burnett, 2 Col. 337. 
 
 (t) Williams v. Bland, 2 Col. 575 ; for 
 
 [341] 
 
516 CONDITION TO AVOID CONTRACT. [CH. IX. § I. 
 
 good title cannot be made to the approbation of the purchaser, 
 or if the purchaser should not pay the money at the day ap- 
 pointed, does not authorize the seller to say he cannot make a 
 title, or the purchaser to say that he has not the money. Neither 
 can refuse to perform his part.(z) But where, if the purchaser's 
 objections were not removed within a time limited, the seller 
 was to be at liberty to annul the contract, repaying the deposit 
 with interest and auction duty, but without costs, and the pur- 
 chaser made an untenable objection, and the vendor annulled 
 the contract, the purchaser's bill for a specific performance was 
 dismissed with cosis.{y) This case, therefore, decided that if 
 the purchaser under a mistake in law raise an objection which 
 cannot be maintained, the seller, although he can make a good 
 title, may under such a condition rescind the contract. 
 
 11. And where [z) there was the common condition, that errors 
 in description should not annul the contract, but that there should 
 be an abatement or equivalent, followed by a stipulation, that if 
 the counsel of the purchaser should be of opinion that a market- 
 able title could not be made by the time stipulated, the agree- 
 ment should be void and delivered up to be cancelled ; it ap- 
 peared that the seller 'could make a title to two thirds only of 
 the freeholds sold in fee, and that he had only a life interest in 
 the remaining one third, and in the copyholds sold ; it was held 
 that the purchaser was not entitled to a specific performance with 
 an abatement; for this title did not of course fall within the con- 
 dition as to errors of description, and the clause avoiding the 
 contract was the contract of both the vendor and purchaser. 
 This case does not contradict Roberts v. Wyatt ; it did not 
 decide that the purchaser could waiitonly reject the title by 
 asserting that it was bad, but that the contract should be void in 
 the case provided for, viz., the purchaser's counsel being of opin- 
 ion that the title was bad. His counsel was of that opinion, 
 and the soundness of his opinion was not disputed. The court 
 held, not that this stipulation relieved the seller from making a 
 title if he could, but that as he could not make a title, it relieved 
 him from the common equity to convey what interest he had 
 with an abatement. The seller would have been at liberty to 
 
 (x) Roberts u. Wyatt, 2 Taunt. 268, (y) Page v. Adam, 4 Beav. 269. 
 sup. p. 22. (z) Williams v. Edwards, 2 Sim. 78. 
 
 [342] 
 
CH. IX. § I.] POSSESSION A WAIVER OF OBJECTIONS. 617 
 
 show that the title was a good one, and that the opinion of the 
 purchaser's counsel was erroneous, for such a stipulation is un- 
 derstood to mean a reasonable objection. 
 
 12. A solicitor, or one of a firm, employed to advise on the 
 title to a property, could not, on purchasing the same property 
 from the client, set up an objection to the title which he or his 
 partner did not take when advising the principal. (a) 
 
 13. Sometimes a purchaser has waived his right to object to 
 the seller's title ; (a^) where that is the case, the seller's bill should 
 be framed so as to put the question in issue, or evidence to prove 
 the waiver cannot be received. (6) In most cases the waiver is 
 not express, but implied from the conduct of the purchaser, and 
 we may consider, 1. What will amount to an implied waiver ; 
 2. How far such a waiver may be modified or altogether nulli- 
 fied by subsequent conduct or discoveries. 
 
 14. A purchaser by entering into possession is. generally held 
 by that act to have waived the objections to title ; (c) he may 
 be considered to have himself executed the purchase.(rf) But 
 he must be shown to have had distinct information of the objec- 
 tion. (e) 
 
 15. The question in each case is one of fact; did the pur- 
 chaser mean to waive, and has he actually waived his right of 
 examining the title? (/) although his intention will be inferred 
 from his acts, and no direct expression of it i§ required. His 
 silence, as we shall *see, may be tantamount to the clearest 
 expression of being content with the title. If he take forcible 
 possession, and prevent a title from being obtained to a part, he 
 will be held to have waived the objection, but not his right to 
 compensation. (§■) As a general rule, a party to a contract should 
 
 (a) Beevor v. Simpson, Taml. 69. v. Simonds, 5 Jur. N. S. 997. [See Ram- 
 
 (o^) [See Eoach v. Rutherford, 4 De- say v. Brailsford, 2 Desaus. 582.] 
 
 saus. 126.] (d) 3 P. Wms. 193; Warren v. Rich- 
 
 (6) CUve V. Beaumont, 1 De G. & Sm. ardson, Yo. 3. 
 
 397 ; Gaston v. Frankum, 2 De G. & Sm. (e) Blacklow v. Laws, 2 Hare, 40 ; Bent- 
 
 561. ley V. Craven, 17 Beav. 204. 
 
 (c) Fludyer v. Cocker, 12 Ves. 27; (/) 3 Swan. 168; Dowson ». Solomon, 
 
 Binks V. Ld. Eokeby, 2 Swan. 222 ; Deller 1 Drew. & Sm. 1. 
 
 {g) Calcraft v. Roebuck, 1 Ves. jr. 221. 
 
 [343] 
 
518 LEASE, ETC. BY PUKCHASEE. [CH. IX. § I. 
 
 forthwith state an objection which comes to his knowledge or 
 upon which he intends to rely.(A) 
 
 16. So in a case before referred to, where a riglit of sporting 
 was not noticed in the particulars of sale, but was mentioned in 
 the abstract of title, and known to the purchaser's solicitor, but 
 neither of them gave any intimation of it, and the purchaser 
 upon his own application was let into possession, it was held 
 that he had not only waived the objection, but was not even en- 
 titled to any compensation. (i) 
 
 17. And where by the contract the purchaser was to be let into 
 immediate possession, and was to pay interest for a year, when 
 the purchase money was to be paid on having a good title, and 
 possession was given accordingly, and an abstract delivered, to 
 which no objection was made, but the purchaser had delayed to 
 complete the purchase for upwards of three years after the day 
 named, and had not paid all the interest due, the court compelled 
 him to accept the title without any investigation. (j) 
 
 18. And although the purchaser swear that he did not mean 
 to waive his objections to the title, yet he may be bound by his 
 acts. The grant of a lease with full knowledge of the title would 
 in most cases operate as a waiver of the objections. (A) 
 
 19. If a person be already in possession under the seller, and 
 the purchaser grant him a lease, that will be held to be a taking 
 possession, for the possession of the tenant is the possession of 
 the landlord. (Z) 
 
 20. But if possession is authorized by the contract to be taken 
 before a title is made, the fact of possession cannot by itself be 
 used against the purchaser,(OT) for that would be contrary to the 
 very terms of the contract.(m) 
 
 (A) Flint!'. Woodin, 9 Hare, 618. Woodyear, 2 Jur. N. S. 179; Bown v. 
 
 (i) Bumell v. Brown, 1 J. & W. 168. Stensbn, 24 Beav. 631. 
 
 [See Barnett v. Gaines, 8 Ala. 373.] (k) Ex parte Sidebotham, 1 Mon. & Ay. 
 
 (j) Fleetwood v. Green, 15 Ves. 594; 655; Ex parte Barrington, 2 Mon. & Ay. 
 
 see 3 Swan. 172 ; Margravine of Anspach, 225. 
 
 V. Noel, 1 Mad. 310 ; 3 Swan. 172 ; Hall (I) Ex parte Sidebotham, 1 Mon. & Ay. 
 
 V. Layer, 3 Yo. & Col. 191 ; see Blachford 655 ; 2 Mon. & Ay. 255. 
 
 V. Kirkpatrick, 6 Beav. 232; Sibbald v. (m) Dixon v. Astley, 1 Mer. 133, ch. 4, 
 
 Lonrie, 18 Jur. 141 ; Pegg v. Wisden, 16 s. 4, sup. ; Wright v. Griffith, 1 Ir. Ch. R. 
 
 Beav. 239 ; Simpson v. Sadd, 2 Sm. & Gif. 695 ; Sibbald v. Lonrie, 1 8 Jur. 141 . 
 
 469; 4 De G., M. & G. 665; Wallis v. (n) Stevens w. Guppy, 3 Rus. 171. [See 
 
 Tevis V. Richardson, 7 Monroe, 657.] 
 
CH. IX. § I.] ACTS AMOUNTING TO- A WAIVER. ' 519 
 
 21. And where a purchaser is entitled to call for a good title, 
 his taking possession with the concurrence of the vendor will 
 not amount *to a waiver of any right ; (rf) and the subsequent 
 delivery of abstracts or negotiations on the subject of title will 
 render this clear.(o) 
 
 22. And if a purchaser do take possession, with notice of a 
 defect which it is understood is to be remedied, he cannot be 
 compelled to complete his purchase if the title be not made 
 gdod.(p) 
 
 23. Acts of ownerships after an authorized possession, are of 
 no importance ; for what can be the purpose or advantage of 
 taking possession, except to act as owner? And a fall of under- 
 wood in due course is no more than gathering a crop of corn or 
 hay.(9) Nor would more Important acts of ownership of them- 
 selves amount to a waiver of a good title ; even where posses- 
 sion of four acres was taken under the agreement, stubbing up 
 an osier bed of nine perches, and levelling the land, and filling 
 up a pond, were held not to be acts amounting to a waiver of 
 objections to the title.(r) So where purchasers in possession 
 filed a bill to set aside the contract on the ground of fraud, great 
 alterations by them, e. g. trees cut down and the surface altered, 
 were held to be all in the natural exercise of the rights of the 
 supposed owner of the property ; (s) but of course, pending a 
 contract, a purchaser would not be justified in damaging or 
 altering the nature of the property in material respects not in- 
 cident to the temporary occupation. 
 
 24. Attempting to resell the estate is an important circum- 
 stance upon this question of waiver, but that, like all other acts, 
 may be explained. (<) An actual resale, indeed, as far as mere 
 title is concerned, can seldom be deemed an acceptance of it, 
 because unless the first purchaser has bound the second to take 
 the title as it stands, the former must intend to obtain a good 
 title himself in order to confer it on the latter. Where a title 
 
 (re^) [See Gahs v. Uenshaw, 2 Barr, 34.] (p) Duncan v. Cafe, 2 M. & W. 244. 
 
 (o) Burroughs v. Oakley, 3 Swan. 159. {q) S. C. 
 
 [But he should abandon the possession (r) Osborne v. Harvey, 1 Yo. & Col. C. 
 
 when he learns of the defect. Richmond C. 116. 
 
 V. Gray, 3 Allen, 25 ; More v. Smedburgh, (s) Small v. Attwood, Yo. 506, 507 ; 6 
 
 8 Paige, 600.] CI. & Fin. 232. 
 
 (t) Knatchbull v. Grueber, 1 Mad. 170. 
 
 [344] 
 
520 ACTS AMOUNTING TO A WAIVER. [CH. IX. § I. 
 
 cannot be made to a portion of the estate, and the purchaser 
 attempts to resell that portion, that unexplained, or an actual 
 resale, would show that he did not consider that portion (how- 
 ever in fact complicated with the estate) as material to the 
 enjoyment of the bulk of the property, and therefore it would be 
 so far a waiver, that he would be compelled to complete his pur- 
 chase, with a compensation. (w)' 
 
 25. A purchaser of a lease which had been agreed to be 
 granted to the seller of a public-house and of the stock, was 
 held to have waived his right to call for the lessor's title, because 
 he had entered into possession, and paid part of the money, and 
 given security for the residue (all which was consistent with the 
 contract), and had, subsequently to *the grant of the lease to 
 the seller, made a security to certain brewers upon his interest 
 in the lease.(a;) 
 
 26. So the preparation of a conveyance may be an important 
 fact, as amounting to evidence that the parties had arrived at a 
 stage of proceeding subsequent to the question of title, and may 
 be supposed, therefore, to have removed or abandoned all objec- 
 tions, (^z) But this clearly is only a circumstance from which 
 such an inference may be drawn. Standing by itself, it is not 
 very important ; for in many cases the conveyance is prepared 
 upon the belief that the title will be cleared up. So the ex- 
 amination of the deeds with the abstract may be entitled to 
 weight ;(z) but this must depend upon circumstances.(2i) In 
 many cases the abstract is examined with the deeds before it is 
 submitted to counsel. » 
 
 27. Where a purchaser obtained a conveyance from the sellers 
 of the entireties, moieties, and other undivided shares of certain 
 properties, and disputes afterwards arose as to what had passed, 
 and it was agreed that the purchaser should pay a fixed sum. 
 and it was referred to an arbitrator to direct what deeds and 
 releases should be executed for the assurance of the estates, it 
 
 (u) KnatchbuU v. Grueber, libisup. (z) Pegg v. Wisden, 16 Jur. 1105. 
 
 (x) Haydon v. Bell, 1 Bear. 337. («') [A party will not be precluded by 
 
 (v) Burroughs u. Oakley, 3 Swan. 159 ; his acceptance of a deed in performance of 
 
 Warren v. Richardson, To. 1 ; Cliye v. the contract, when such acceptance was 
 
 Beaumont 1 De G. & Sm. 397 ; Smith v. under a mistake as to the contents or effect 
 
 Canron 7 Hare, 185; Harwood v. Bland, of the deed. Conover v. Wardell, 5 C. E. 
 
 1 Fla. & Ke. 540. Green (N. J.), 266.] 
 
 [345J 
 
CH. IX. § I.] PURCHASER NOT BOUND BY COUNSEL'S OPINION. 521 
 
 was, of course, held that the purchaser had no right to require a 
 title to be produced to any part of the property sold. (a) But 
 this was hardly a case of waiver, for the acceptance of the con- 
 veyance concluded the right to require a title, and the reference 
 to arbitration was so framed as to confine the purchaser's right 
 to a conveyance of any disputed property. 
 
 28. If a purchaser having full notice that he is not to expect 
 a title beyond a limited period, concludes an agreement for pur- 
 chase, he will be held to have waived his right.(a^) This is by 
 matter of notice, and not of contract.(6) 
 
 29. But a purchaser cannot be held to have waived objections 
 to a title because his counsel has approved of the title. Lord 
 Eldon determined, that where an abstract is laid before counsel, 
 who approves the title, his approbation is not to be taken as a 
 waiver of all reasonable objections. The purchaser may either 
 take an opinion from some other counsel or the one first con- 
 sulted may correct his error in a further opinion. (c) 
 
 30. And although a purchaser's solicitor state, in a case for 
 counsel, that all the objections to the title are removed save one, 
 yet if the seller file a bill, the purchaser will be entitled to a 
 general reference as to title; (d) but if counsel waive the produc- 
 tion of a particular * document stated in the abstract to be lost, 
 and the purchaser adopt that opinion and deal with the seller 
 upon that view, he cannot afterwards repudiate the opinion. 
 Where an abstract states deeds to have been lost, the purchaser 
 should take the objection at once if he intend to rely upon it.(e) 
 
 31. A demand by a purchaser at the last hour, of possession 
 of some cottages, part of the purchase, which he knew to be in 
 possession of weekly tenants, was treated as a waiver, and a 
 device to rescind the contract. (/) 
 
 (a) Godson K. Turner,' 15 Beav. 46. a. Eutherford, 4 Desaus. 126; Craddock 
 
 (ai) [See Lawrence v. Dale, 3 John. w. Shirley, 3 Marsh. 11^9.] 
 
 Ch. 23; M'Neven u. Livingston, 17 John. (6) 3 Mer. 64; [McMurray v. Spicer, 
 
 437 ; Roach v. Rutherford, 4 Desaus. 126 ; L. B. 5 Eq. 527.] 
 
 Bamett v. Gaines, 8 Ala. 373. A pur- (c) Deverell u. Ld.Bolton, 18 Ves. 505 ; 
 
 chaser of land, who, with knowledge of an Harwood v. Bland, 1 Pla. & Ke. 540. 
 
 existing incumbrance, pi'oceeds to execute {d) Lesturgeon v. Martin, 3 My. & Ke. 
 
 the contract in part, as, by taking posses- 255. 
 
 sion, will be required to execute it in full, (e) Alexander v. Crosbie, 1 Jo. & L. 
 
 and afortioriwUl not be allowed to rescind 666. 
 
 it. Bamett o. Gaines, 8 Ala. 373 ; Roach (/) 1 Per. & Dav. 381. 
 
 [346] 
 
522 WAIVEE OF OBJECTIONS TO TltLE. [CH. IX. § I. 
 
 32. The acceptance of an abstract as satisfactory only waives 
 the objections in the abstract; and if in such a case the pui*- 
 chaser can prove the title bad, of course the contract could not 
 be enforced. (§■) 
 
 33. And of course the man may have accepted the title as it 
 appears upon the abstract, and yet not have waived his right to 
 have it proved as stated. (A) In a late case a statement in the 
 answer that the defendant, the purchaser, believed that at the 
 time of the contract the plaintiff was under a deed refeiTed to in 
 the bill seised in fee, was held to preclude the purchaser from 
 showing that the seller had not a title when he had by his 
 answer admitted that he had ; (i) but such an admission could 
 hardly exclude him from his right to proof of the title. 
 
 34. Statements in the abstract, that the seller has not in his 
 possession or power certain of the deeds, or has them not in his 
 possession, will bind the purchaser, if he proceed with the treaty 
 without objecting on this head, not to object that those deeds are 
 not delivered up to him on the completion of the purchase ; but 
 they do not inform him that the vendor is unable to give any 
 proof of the existence, or contents of the document set out in 
 the abstract.(/(;) Nor where upon a trial a lease is produced, will 
 the purchaser be held to have waived objections arising out of 
 it, of which the abstract did not give full information. (/) 
 
 35. A purchaser may, by simple acquiescence, be held to have 
 waived objections to the title, although he has not taken posses- 
 sion. (»») But if, having purchased out of court, he go in under 
 a decree, in a suit instituted for administering the estate, he will 
 not be precluded from taking any objection which he otherwise 
 might haVe taken. (n) 
 
 36. If a seller can establish a case of an acceptance of titlfe 
 by the purchaser, he should not proceed on an order of reference 
 as to title, * or take any other step which shows that he does not 
 rely upon the acceptance, (o) 
 
 (g) 1 Yo. & Col. 570, 571. (I) Flight v. Booth, 1 Blng. N. C. 370. 
 
 (h) Southby v. Hutt, 2 My. & Cra. 207. (m) Fordyce v. Ford, 4 Bro. C. C. 494; 
 
 (i) Phipps V. Child, 3 Drew. 709, qu. the 6 Ves. 679 ; 3 Mer. 146. 
 decree which is said to be with the usual (n) Cann v. Cann, 1 Sim. & Stu. 284. 
 consequential directions. (o) Harwood v. Bland, 1 Fla. & Ke. 
 
 (k) Southby v. Hutt, 2 My. & Cr. 207. 540. 
 
 [347] 
 
CH. IX. § I.J WAIVER OF OBJECTIONS TO TITLE. 523 
 
 37. Possession being taken is an implied agreement to pay 
 interest,(/() and would have weight as to costs. (q') 
 
 38. Where the vendor in a contract for sale makes it part of 
 the contract that the purchaser shall be let into immediate pos- 
 session, and a question afterwards arises whether it is a case for 
 compensation as to a part to which he is unable to make a title, 
 the seller cannot turn the purchaser odt of possession, and after- 
 wards file a bill for a specific performance ; but the seller by his 
 act destroys the contract. (»•) 
 
 39. A man, by going on to treat, does not waive an objection 
 he is constantly insisting upon. A treaty cannot waive that 
 which he treats about.(s) 
 
 40. And if a purchaser have actually waived his right to call 
 for a title, and afterwards, for the purpose of settling a convey- 
 ance, a deed is produced which shows a bad title, he will not be 
 compelled in equity to accept the bad title.(<) 
 
 41. If a purchaser take possession under a contract, and after- 
 wards rejects the title, he must relinquish the possession, and 
 equity cannot prevent the vendor from turning him out by an 
 ejectment, although he may have expended money in improve- 
 ments.(M) 
 
 42. According to a decision of Hart L. C. in Ireland, if a 
 purchaser having two grounds to be discharged, e. g. a bad title 
 and the felling of ornamental timber by the seller after the sale, 
 elects to go upon the objection to title, it does not amount to an 
 
 {p) 12 Ves. 27; as to the rent, vide Bentley, 5 De G. & Sm. 520; Geoghegan 
 
 sup. ; and as to » mortgagee purchasing, v. Connolly, 8 Ir. Ch. Eep. 598. 
 see Wallis v. Bastard, 2 Eq. E. 508 ; S. C. (m) Nicloson v. Wordsworth, 2 Swan. 
 
 4 De G., M.,& G. 251. [See Buchanan 365 ; see Southcomb u. Bp. of Exeter, 6 
 
 V. Lorman, 5 Gill, 82, per Archer C. J. ; Hare, 213 ; 8 Harei 61 ; Gordon v. Mahouy, 
 
 Brockenbrough i>. Blythe, 3 Leigh, 647, 13 Ir. Eq. R. 383 ; [More v. Smedburgh, 
 
 648; Ery Specif. Perf. (Am. ed.) 488, § 8 Paige, 600. Where vendee has paid part 
 
 920, & note.] of the purchase money and taken posses- 
 
 ' (q) See 1 5 Ves. 464, post, eh. 1 7, s. 2. sion, he cannot maintain an action .against 
 
 (r) Knatchbull v. Grueber, 3 Mer. 124; the vendor who is unable to perfect the 
 
 1 Ves. jr. 224. title, for the recoveiy of the money paid, 
 
 (s) Knatchbull v. Grueber, 1 Mad. 170. while retaining the possession. Hurst v. 
 
 (t) Warren „. Richardson, Yo. 1; Means, 2 Swan, 594 ; Clarke u. Locke, 1 1 
 
 Wilde V. Eort, 4 Taunt. 334 ; Hume v. Humph. 300.] 
 
524 WAIVER OF OBJECTIONS TO TITLE. [OH. IX. § I. 
 
 abandonment of the other objection. (a;) It might not, however, 
 be safe for a purchaser to act upon this precedent. Where a 
 purchaser, after he was aware of misrepresentations by the ven- 
 dor, gave notice to him that he was ready to perform the con- 
 tract, and that unless the vendor completed the contract within 
 a month he, the purchaser, would rescind the contract, he was 
 held to have waived the objection arising out of the misrepresen- 
 tations,(^) 
 
 *43. Where a purchaser took counsel's opinion upon the ab- 
 stract, who approved of the title, subject to some matters which 
 were cleared up, and three months afterwards objected to the 
 contract, on the ground that what was called a ground-rent in 
 the particulars was a rack-rent ; Lord Eldon, although the par- 
 ticulars of the rent reserved appeared upon the abstract, said, 
 that he did not think it necessary, because the opinion of a con- 
 veyancer had been had, to force the party to take a subject es- 
 sentially different from that which he contracted to purchase, 
 and on which alone that opinion was called ior.{z) 
 
 44. If a man purchase as agent for another, and the title is not 
 accurately described in the particulars, the agent must have a 
 fresh authority for a different agreement. But when the pur- 
 chaser and his counsel know the real nature of the interest sold, 
 and still act upon the agreement, there may be enough to amount 
 to a binding approbation of the agent's act.(a) 
 
 45. If a purchaser by his conduct waive an objection to the 
 title, the seller will not be bound by a letter subsequently written 
 by the clerk of his solicitor, without any authority, stating that 
 no objection would be made to a reasonable compensation.(6) 
 
 (x) Magennis v. Pallon, 2 Mol. 591 ; purchaser refuses and continues to refuse 
 
 Flight V. Booth, supra ; [Morange v. Mor- to complete, on objections to the title, the 
 
 ris, 34 Barb. 311. Where the purchaser whole controversy depends (^i the force of 
 
 refuses to complete the contract on objec- those objections, and if they are sufficient, 
 
 tions entirely independent of the title, and specific performance will be denied. Dom- 
 
 those objections are overruled, and where inick v. Michael, 4 Sandf. 374.] 
 the vendee consents to accept " title re- (j) Macbride v. Weekes, 22 Beav. 533. 
 garded by him as doubtful, if the court is (z) Stewart v. Alliston, 1 Mer. 26 ; Dar- 
 
 of opinion that it can be rendered valid, lington v. Hamilton, 1 Kay, 550. 
 specific performance may be decreed, if a (a) 18 Ves. 509, 510. 
 good title can be made within a reasonable (i) Burnell v. Brown, 1 J. & W. 168. 
 time before final decree. But when the 
 
 [348] 
 
CH. IX. 
 
 §"•] 
 
 REFERENCE OF TITLE. 
 
 525 
 
 SECTION U. 
 
 or TITLE ; IN SUITS IN EQUITY. 
 
 1. 
 2. 
 3. 
 4. 
 5. 
 6. 
 7. 
 8. 
 9. 
 10. 
 
 11. 
 12. 
 13. 
 14. 
 15. 
 16. 
 
 17. 
 18. 
 19. 
 20. 
 21. 
 22. 
 
 23. 
 
 Seller with equitable estate. 
 
 Doubtful title. 
 
 Reference of title. ' 
 
 Reference back where new fact. 
 
 Or where seller can clear up objections. 
 
 Objections to report of title. 
 
 Purchaser plaintiff, and there is no title. 
 
 Statement in bill of want of title. 
 
 Purchaser accepting a bad title ; costs. 
 
 Bad title appearing on plaintiff's exam- 
 ination. 
 
 Objections considered by court. 
 
 Reference of title upon motion. 
 
 Unless other questions raised. 
 
 Not frivolous. 
 
 Vendor's delay. — Dismissal of bill. 
 
 Purchaser after answer enforced may 
 make any defence, although title re- 
 ferred. 
 
 Objections under the new practice. 
 
 What may be referred. 
 
 Decree without reference where delay. 
 
 Deposit ordered into court. 
 
 New evidence upon the reference. 
 
 Report or certificate where legal estate 
 outstanding. 
 
 Pendency of a suit for the estate. 
 
 24. Report of conditional title bad. 
 
 25. Where exception should stand over. 
 
 26. Surprise upon purchaser. 
 
 27. Purchaser not to file a cross-bill if title 
 
 bad. 
 
 28. Opinion of conveyancing counsel. 
 
 * 29. Bad title, no decree for purchaser. 
 
 30. Purchaser may take bad title. 
 
 31. Seller obtaining good title after convey- 
 
 ance. • 
 
 32. Purchaser buying in the adverse title. 
 
 33. Man buying his own estate. 
 
 34. Sale of a remainder already barred. 
 
 35. Purchaser neglecting to examine title. 
 
 36. Sale of pretended title. — Sale of estate 
 
 contracted for, good. 
 
 37. Sale of estate if it shall be devised to 
 
 seller, valid. 
 
 38. Sale for a lottery illegal ; purchase 
 
 money. 
 
 39. Conveyance to multiply votes. * 
 
 40. Champerty. — Maintenance. 
 
 41. Sale of advowson whilst incumbent in 
 
 extremis. 
 
 42. Devise of advowson to sell after death of 
 
 incumbent. 
 
 43. Slander of title. 
 
 1. To enable equity to decree a specific performance against 
 a vendor, it is not necessary that he should have the legal estate, 
 for if he has an equitable title a performance in specie will be 
 decreed, (a) and he must obtain the concurrence of the persons 
 seised of the legal estate. 
 
 2. But it is always in the discretion of the court whether they 
 will decree a specific performance or not. Where there are con- 
 siderable difficulties on the face of the title, and no means of 
 clearing them up, and no jurisdiction to bind the question, that 
 is not the case for decreeing a specific performance. (6) 
 
 3. In all cases, either party may in general, if he please, have 
 a reference as to the title, though the abstract is in the hands of 
 
 (a) Crop V. Norton, 2 Atk. 74; Costi- wood v. Cope, 25 Beav. 140; Murrell v. 
 gan V. Hastier, 2 Sch. & Lef. 160. Goodyear, 1 De G., F. & J. 432. 
 
 (6) 4 Bro. C. C. 87, post, ch. 11 ; Hay- 
 
 [349] 
 
526 REFERENCE OF TITLE. [CH. IX. § II. 
 
 the party who says he cannot object to it, yet he may insist upon 
 a reference.(c) Either party may, however, waive his right.(t'^) 
 The seller is always at liberty to produce the proper evidence if 
 he can ; therefore, although by his bill he insists that the pur- 
 chaser is entitled only to certain evidence of his title, which he 
 is ready to give, the purchaser cannot demur op the ground that 
 he is entitled to better evidence,{d) 
 
 4. If, after the confirmation of a report in favor of a title, a 
 new fact appear, by which the title is affected, the title will be 
 referred back for consideration. (e) In a case where the seller of 
 a leasehold estate produced the leasehold title, which the master 
 thought sufficient, and reported accordingly ; but the court held 
 that the lessor's title ought to have been produced, and sent it 
 back to the master to review his report ; the seller had liberty 
 given to him to produce the freehold title, for the opinion in favor 
 of the title had rendered it unnecessary for him to show that the 
 title was good on other grounds. It was considered that the pur- 
 chaser was at liberty to enter into objections to the leasehold 
 titlei, which were not taken * upon the former discussions before 
 the master.(/) And, upon the objections being afterwards taken, 
 the bill was dismissed. (g-) So where the master held, as the 
 seller contended, that a devise was too remote, and reported in 
 favor of the title, but the court overruled the report, it was sent 
 back to the master upon the seller's allegation that the devise 
 was immaterial as all the limitations had failed. (/«) Again, 
 where the report was in favor of the title, but an exception was 
 allowed as to a subsisting rentcharge, although the case was 
 also on for further directions, time was allowed to the seller to 
 
 (c) Jenkins v. Hiles, 6 Ves. 653 ; 3 Mer. (c^) [2 Dan. Ch. Pr. (4th Am. ed.) 988, 
 
 137; [Cooper w. Denne, 1 Ves. jr. (Sum- 989.] 
 
 ner's ed.) 565, 567, note (6) of Mr. Hot- (d) Curling v. Flight, 5 Hare, 542. 
 
 enden ; Frost v. Brunson, 6 Yerger, 36 ; (e) Jeudwine v. Alcock, I Mad. 597 ; [2 
 
 M'Comb V. Wright, 4 John. Ch. 659 ; Dan. Ch. Pr. (4th Am. ed.) 1218.] 
 
 Beverley v. Lawson, 3 Munf. 317. But if (/) Fildes v. Hooker, 2 Mer. 424; An- 
 
 it manifestly appears from the hill and drew v, Andrew, 3 Sim. 390. 
 
 answer that no title can be made, the refer- (g) 3 Mad. 193. 
 
 ence will not be ordered. Frost v. Brun- (h) Egerton v. Jones, 3 Sim. 392 ; 1 
 
 son, 6 Yerger, 36; 2 Dan. Ch. Pr. (4th Eus. & My. 694; [2 Dan. Ch. Fr. (4th 
 
 Am. ed.) 1215, note (4).] Am. ed.) 1218, 1219.] 
 
 [350] 
 
CH. IX. § il] where sellee can clear up objections. 627 
 
 remove the objection.(t) And these rules would be adopted 
 under the new practice.(A;) 
 
 5. If it appear, therefore, at the hearing of the objections that 
 the seller can clear them up, the court would either dispose of 
 the case, or let it stand over, or remit it to chambers for further 
 consideration. Where the estate is subject to a jointure rent- 
 charge for example, and the jointress has not bound herself to 
 release, the form of the certificate should be, that the seller can- 
 not make a good title because A. was jointress, and no sufficient 
 evidence had been produced to show that she would release.(/) 
 If a title upon a new fact can be made between the certificate 
 and the final disposition of the case, the court will enforce the 
 contract, as if in the above case the jointress had agreed to join 
 when the cause came on for further directions or consideration ; 
 but the court would expect counsel to appearand undertake that 
 she would concur.(m) The court will not allow a seller to lie by 
 before the chief clerk, and then upon further consideration in 
 court to attempt to niake a title. 
 
 6. If objections are taken to the certificate that a good title 
 can be made, and are overruled, other objections to the title can- 
 not be made ; but if the objections are allowed, and a new ab- 
 stract of title is delivered, further objections may, of course, be 
 brought in.(«) In Noel v. Hoy,(o) the seller rested his title on 
 the construction of a will, by which he insisted the estate jlid 
 not pass. The point was decided against him, and then he asked 
 for a reference to the master to see whether he could make a 
 good title, as he insisted that the devisees were trustees for him. 
 This reference was objected to by the purchaser. The court 
 said, that it should have great difficulty in allowing the plaintiff 
 after a decree to amend his bill, by bringing * new parties before 
 the court. But time had been allowed to get an act of parlia- 
 ment. If the master was of opinion that the devisees were 
 
 (i) Gurling a. Flight, 2 Phil. 613; Dawes 110; Jumpson v. Pitchers, 1 Col. 1.3; 
 
 V. Betts, 12 Jur. 412, 709 ; Stewart Uv Ld. Keogh v. Keogh, 13 Ir. Eq^. R. 284. 
 
 Uonyngham, 1 Ir. Cha. E. 563. (m) 12 Jur. 416, where the true sense of 
 
 {k) Supra, ch. 5, s. 2. the passage in the text, as it then stood, 
 
 (/) Esdaile o. Stephenson, 6 Mad. 366 ; was stated by Wigram V. C. 
 
 Paton V. Rogers, 6 Mad. 256 ; Magennis v. (n) Brooke v. , 4 Mad. 212. 
 
 Pallon, 2 Mol. 583 ; Hobson v. Bell, 2 Beav. (o) V. C. 23 Feb. 1829, MS. 
 
 17; Sidebotham t. Harrington, 4 Beav. 
 
 [351] 
 
528 PURCHASER PLAINTIFF AND NO TITLE. [CH. IX. § II. 
 
 trustees for the seller, he would report in favor of the title. If 
 a suit should be necessary to try their equity, he would report 
 against it. 
 
 7. A purchaser may file a bill for a specific performance, al- 
 though it appears by the abstract that the vendor has no title, 
 and yet unless he chooses to take the title, the court cannot force 
 it upon him on the ground of his having filed the bill with a 
 knowledge of the objection. (p) 
 
 8. If a man file a bill simply stating that the seller cannot 
 ' make a good title, of course he must accept the best title which 
 
 the seller can make, or have his bill dismissed. (^) 
 
 9. Where the purchaser prayed a specific performance, " if a 
 good title could be made," and the report, which was not ex- 
 cepted to, was against the title, the purchaser was permitted to 
 accept the title ; but as he was acquainted with the objections 
 at the hearing, he was fixed with the costs of investigation. (r) 
 
 10. "Where an intended lessee objected to complete, on various 
 grounds not connected with the title, and the lessor filed a bill 
 against him for specific performance, and upon the lessor, the 
 plaintiff's answer to interrogatories, it appeared for the first time 
 that he had not a good title to an important part of the property, 
 the bill was dismissed with costs, without going into the consid- 
 eration of the objections taken before the bill was filed. (s) 
 
 11. Where objections are made by a purchaser, evidently with 
 a view to gain time, the court itself will enter into the consider- 
 ation of the objections without referring the title to chambers. 
 
 12. So an inquiry may be directed as to the title, and at what 
 time the abstract was delivered, and when it appeared that a 
 good title could be made either after (t) or even before the an- 
 swer.(M) But if the defendant's counsel state that there are 
 other objections, the title cannot be referred. (a;) Where the suit 
 commenced by a claim, which, as we have seen, is now abolished, 
 the orders directed " that it be referred to the master -to inquire 
 
 [p] Stapylton w. Scott, 16 Yes. 272. [t) Moss v. Matthews, 3 Ves. 279; 
 
 [q) Nicloson v. Wordsworth, 2 Swan. Wright v. Bond, 11 Ves. 39; 17 Ves. 278. 
 
 365 ; 3 My. & Cra. 710 ; et qu. («) Balmanno v. Lnmley, 1 Ves. & Bea. 
 
 (r) Bennett v. Fowler, 2 Beav. 302. 224. 
 
 (s) Baskcomb v. Phillips, 6 Jur. N. S. {x) Matthews v. Dana, 3 Mad. 470 ; 
 
 363. Wood V. Machn, 5 Hare, 158. 
 
CH. IX. § 11.] KEFERENCE OF TITLE BY MOTION. 529 
 
 whether a good title can be made to the property comprised in 
 the agreement in the plaintifPs claim mentioned, and in case the 
 said master shall be of opinion that a good title can be made, it 
 is ordered that he do state at what time it was first shown that 
 such good title could be made, *and this court doth reserve the 
 consideration of all fm-ther directions, and of the costs of this 
 suit, until after the said master shall have made his report;" (y) 
 but the form is still adopted. 
 
 13. And in every case where the answer, upon reasons solid 
 or not, insists that the agreement ought not to be executed, the 
 court must first dispose of the question raised. (2) Therefore, 
 where the question simply was, whether the vendor of a lease- 
 hold estate was bound to produce the lessor's title, a motion by 
 the purchaser for a reference to the master upon the title was 
 refused. (a) So where the defendant, the purchaser, alleges laches 
 on the part of the plaintiff, as a ground for his not being com- 
 pelled to perform the agreement, the court will decide the ques- 
 tion raised, before the title is referred. (i) 
 
 14. But if the objection be frivolous, or the point raised be so 
 governed by authority as to present no difficulty, the reference 
 will be made at once.(c) 
 
 15. The reference will not be made on the motion of the ven- 
 dor, if he has been guilty of delay after the coming in of the 
 answei.(d) Pending such a reference, the purchaser, being the 
 defendant, cannot dismiss the bill for want of prosecution. (e) 
 
 16. If the title be referred before answer, and then the plain- 
 tiff enforce an answer, the purchaser, if he have not excluded 
 hipself, may make any defence to the bill he thinks proper.(/) 
 
 17. Where in a suit by a purchaser time was held not to be a 
 bar, the judge, under the new practice, directed the purchaser to 
 
 {y) General Orders, 1850, Sch. No. 10. (o) Gompertz v. , 12 Ves. 17 ; Eld- 
 
 (z) Blyth 67. Blmhirst, 1 Ves. & Bea. ridge v. Forter, 14 Ves. 139; 17 Ves. 278. 
 1; Paton v. Rogers, lb. 351; Biscoe v. (b) Blyth v. Elmhirst, ub. sup.; Skel- 
 Brett, 2 Ves. & Bea. 377; FuUagher k. ton's case, 1 Ves. & Bea. 517; Wallinger 
 Clarke, 18 Ves. 481 ; Morgan v. Shaw, 2 v. Hilbert, 1 Mer. 104; Lowe v. Manners, 
 Mer. 138; Boehm v. Wood, 1 J. & W. 1 Mer. 19 ; Portmau v. Mill, 2 Rus. 570. 
 419; Withy v. Cottle, Tur. & Rus. 78; 1 (c) Wood v. Machu, 5 Hare, 158 ; Cur- 
 Sim. & Stu. 174 ; Gordon v. Ball, 1 Sim. ling v. Flight, 5 Iliire, 242. 
 & Stu. 178 ; Boyes v. Liddell, 1 Yo. & Col. (rf) Dorin v. Harvey, 15 Sim. 49. 
 C. C. 133. (e) Gregory v. Spencer, 11 Beav. 143. 
 
 (/) Emery v. Pickering, 13 Sim. 583. 
 
 [352] 
 
 34 
 
530 OBJECTIONS TO REPORT OF TITLE. [CH. IX. § II. 
 
 bring in his objections to the title befo him within a week, and 
 the vendor could then either remove them or argue them in open 
 court. (§•) i 
 
 18. Everything that appears to be connected with the title 
 may be the subject of a reference by motion. Where, therefore, 
 the purchaser, by his answer, stated that no evidence of identity 
 had been furnished, ah addition was made to the ordinary refer- 
 ence for an inquiry, whether the defendant objected at any time 
 to the want of such evidence. But an inquiry whether the ab- 
 stract was perfect, and if deficient, in what respects its deficiency 
 consisted, and whether *it was ever perfected, was refused as not 
 being sanctioned by the practice of the court.(A) 
 
 19. Where the purchaser has been a long time in possession 
 of the estate, and of the abstract, without objecting to the title, 
 a specific performance will be decreed at once without a refer- 
 ence as to the title.(j) But the question depends upon a con- 
 clusion of fact that the purchaser intended to waive, and has 
 actually waived, his right of examining the title, and the waiver 
 may be rebutted by the conduct of the seller, e. g. in furnishing 
 further documents to make out the title. (A) And although he 
 may be held to have waived objections appearing on the ab- 
 stract, yet he ma.y not be precluded from showing other objec- 
 tions.(/) 
 
 20. Where a vendor files a bill for an injunction and a specific 
 performance, the court will, upon granting the injunction, in 
 most cases, order him to pay the deposit into court. But where 
 the seller is able and willing to make a good title, and the pur- 
 chaser is to blame, although the seller is in possession of the 
 estate, he will not be compelled to pay the deposit into court.(m) 
 
 21. Although the defendant, by his answer, put in issue an 
 objection to the title, and both parties examine witnesses to the 
 
 {g) Pegg V. Wisden, 16 Jur. 1105. King ?;. King, 1 My. & Ke. 442, a cage of 
 
 (A) Bennett v. Eees, 1 Ke. 405 ; Wood- gi-eat difficulty ; Sweet v. Meredith, 8 
 
 roffe V. Titterton, 8 Sim. 238. Jur. N. S. 637. 
 
 (i) rieetwood v. Green, 15 Ves. 594; (h) Burroughs «. Oakley, 3 Swan. 159. 
 
 Margravine of Anspach v. Noel, 1 Mad. (l) Bown v. Stenson, 24 Beav. 631. 
 
 310; Ex parte Sidebottom, 1 Mon. & Ay. (m) Wynne f. Griffith, 1 Sim. & Stu. 
 
 655; Ex parte Harrington, 2 Mon. & Ay. 147. 
 
 245 ; Southby v. Hutt, 2 My. & Cra. 207 ; 
 
 [353] 
 
CH. IX. § II.j PEOCEEDINGS UPON EEPOET OF TITLE. 531 
 
 point before the hearing, yet both sides may produce further evi- 
 dence upon the reference. (w) 
 
 22. If the seller has vested in him legally, or equitably, all the 
 interest in the estate, it cannot be objected to the "report or cer- 
 tificate in favor x)f the title, that the legal estate is outstanding, 
 although in a lunatic, against whom no commission has issued. (1) 
 The vendor has the power, provided he will take the means nec- 
 essary for the purpose of making a good title. If he neglect 
 this, the question will arise when the conveyance is to be set- 
 tled.(o) This proposition has been considered to be correct, and 
 the rule has, after argument, been acted upon.(j9) And it was 
 not thought to be contrary to the opinion expressed in Wynne 
 V. GnS\.th,{q) where the legal estate was assumed to have been 
 outstanding for a great length of timej and it was not certain, 
 therefore, in whom the legal estate was vested ; * in the latter 
 case the seller should trace out the heir at law before he enter 
 into litigation. 
 
 23. If a seller file a bill, and a third party file a bill against 
 him, claiming a right to the estate, the nature of the adverse 
 claim should be examined on the reference.(r) 
 
 24. A good title should not be certified conditionally ; for ex- 
 ample, legatees' discharges should be produced, and not an un- 
 dertaking to procure them, and then a report that a good title 
 can be made upon payment of the legacies.(s) 
 
 25. If objections be taken to the certificate in favor of the 
 title, and the court think the title a doubtful one, the bill may, 
 upon further directions, be dismissed, without either overruling 
 or allowing the objections.(^) 
 
 26. By analogy to the rule under the old law, if a purchaser 
 is taken by surprise, by the chief clerk, for example, he will be 
 allowed to object to a certificate of good title, although he did 
 not object to it before the chief clerk.(M) 
 
 27. If the purchaser's defence to a bill for a specific perform- 
 In) Vancouver v. Bliss, H Ves. 458. (r-) Osbaldeston v. Askew, 1 Eus. 160. 
 (o) Berkely v. Dauh, 16 Ves. 380; see (s) Magennis v. Fallon, 2 Mol. 575. 
 
 11 M. & W. 728; ch. 11, s. 3, post. {t) Wilcox v. Bellaers, Tur. & Bus. 
 
 {p) Avarne v. Brown, 14 Sim. 303; 491; Robinson v. Milner, 1 Hare, 578; 1 
 
 Keogh V. Keogh, 13 Ir. Eq. R. 284. Ves. jr. 567. 
 
 (q) 1 Rus. 283. (m) Wood v. Lambirth, 9 Sim. 195. 
 
 (1 ) Tliis is not now a serfous difficulty ; see sup. 
 
 [354] 
 
532 BAD TITLE : NO TITLE, ETC. [CH. IX. § II. 
 
 ance rest merely on the want of title in the vendor, he ought to 
 depend on his answer, and not to file a cross-bill to have the 
 agreement delivered up.(a;) ' 
 
 28. The court or any judge thereof sitting in chambers may 
 receive and act upon the opinion of conveyancing counsel ap- 
 pointed by the court in all cases in which, according to the old 
 practice, it had been usual for the master to require or receive 
 the opinion of conveyancing counsel, for his aid in the investiga- 
 tion of the title to an estate, with a view to an investment of 
 money in the purchase or on mortgage thereof, or with a view to 
 the sale thereof, or in the settlement of a draft of a conveyance, 
 mortgage, settlement, or other instrument, or otherwise, and in 
 such other cases as the lord chancellor shall by any general order 
 direct ; but it is competent for any party to object to any opinion 
 of any such counsel when he shall deem it open to objection, 
 and thereupon the point in dispute is to be disposed of by the 
 court or the judge in chambers. (2/) 
 
 29. Where a bond fide vendor has not a title to the estate, the 
 court will leave the purchaser to his remedy at law upon the 
 articles; (2) and although he must necessarily obtain a verdict, 
 * if he have recourse to law, yet he would obtain nominal dam- 
 ages only.(a) 
 
 30. But the purchaser may, it should seem, elect to take the 
 title, such as it is, although^ no injury would be sustained by him 
 in case the agreement were not executed, but the covenants 
 must, of course, be so framed as not to leave the seller exposed 
 to an action on account of the flaw in the title ; and where the 
 conveyance would be merely void, and might embarrass persons 
 claiming under the same title as the seller, equity seems to refuse 
 its aid on substantial grounds.(6) 
 
 {x) Hilton V. Barrow, 1 Ves. jr. 284. 233 ; Cornwall v. Williams, Coll. P. C. 
 
 {y} 15 & 16 Vict. c. 80, s. 40, 43; Gl. 390 ; Bennet College v. Carey, 3 Bto. C. 
 
 Orders, 16 Dec. 1852, 24 Dec. 1852; see c. 390 ; King v. King, sup. 295. 
 2 Kenn. Ch. Pr. 316; for the mode of. („) Flureau «. Thornhill, 2 Bla. 1078; 
 
 reference see In re Caddick's Settlement, 3 gog^. & Pul. 167 ; Brigs case. Pal. 364; 
 
 9 Hare App. 9 ; Ex.parte Rector of South pggt. Harnett v. Yeilding, 2 Sch. & Lef. 
 
 CoUingham, lb. App. 12. As to the costs 549 . ^i! qu. Hadley v. Baxendale, 23 L. J. 
 
 of private counsel besides, see In re Jones's 179^ Ex. ; supra, ch. 5,, s. 4, for the power 
 
 Est. 27 L. J. N. S. 706 ; [2 Dan. Ch. Pr. of courts of equity to give damages. 
 (4th Am. ed.) 1217.] (6) Ellard v. Lord Llandafif, 1 Bal. & 
 
 (z) Crop V. Norton, 2 Atk. 74 ; 9 Mod. 
 
 [355] 
 
CH. IX. § 11.] BAD TITLE*: NO TITLE, ETC. 633 
 
 31. And if a man sell an estate to which he has no title, and 
 after the conveyance acquire the title, he will be compelled to' 
 convey it to the purchaser.(l) But this is said to be a personal 
 equity attaching on the conscience of the party, and not descend- 
 ing with the land ; and therefore, that if the vendor do not in his 
 lifetime confirm the title, and the estate descend to the heir at 
 law, he will not be bound by his ancestor's contract.(c) This 
 opinion, however, deserves great consideration. 
 
 32. If a right be outstanding in a third person which the pur- 
 chaser relies upon as an objection to the title, and then purchases 
 the interest for his own benefit, the court will not permit him to 
 avail himself of the purchase against the vendor, but, allowing 
 him the price paid for it, will compel him to perform his original 
 contract.{rf) 
 
 33. If a person having a right to an estate, purchase it of 
 another person being ignorant of his own title, equity will com- 
 pel the vendor to refund the purchase money, with interest from 
 the time of bringing th^ bill, although no fraud appears.(e) 
 
 34. So where a person sold a remainder expectant upon an 
 estate tail, and both parties considered that the remainder was 
 unbarred, and it afterwards appeared that a recovery had been 
 
 Beat. 2-44 ; O'Rourke o. Percival, 2 Bal. & 1 De G., F. & J. 432 ; see Lawless u. 
 
 Beat. 56. Mansfield, 1 Dru. & War. 557. 
 
 (c) Morse v. Faulkener, 1 Ans. 11; (e) Bingham u. Bingham, 1 Ves. 126; 
 Carleton «. Leighton, 3 Mer. 667 ; Bens- Lansdown v. Lansdown, Mos. 364 ; Saun- 
 ley V. Burdon, 2 Sim. & Stu. 516, upon ders v. Ld. Annesley, 2 Sch. & Lef. 101 ; 
 appeal aff'd; Murrell v. Goodyear, 2 Giff. Leonard! v. Leonard, 2 Bal. & Beat. 171 ; 
 51. Stewart v. Stewart, 6 CI. &|Fin. 911. 
 
 (d) Murrell v. Goodyear, 2 GifF. 51 ; affd 
 
 (1) My opinion is, that it is an undeniable proposition that when a party enters into 
 a contract witli [without] the power of performing that contract, and subsequently ac- 
 quires the power of performing that contract, he is bound to do so, per V. C. ; Came v. 
 Mitchell, 10 Jur. 909, 912. [See post, 556, & note; Graham v. Hackwith, 1 A. K. 
 Marsh. 423 ; Tyson v. Passmore, 2 Barr, 122. In Trask v. Vinson, 20 Pick. 105, 109, 
 Morton J. said : " We know of no rule of law or principle of sound policy which pro- 
 hibits a person from agreeing or covenanting to convey an estate not his own." The 
 right of a party to agree to sell an estate not his own is conceded by Foster J. in Plur- 
 ley V. Brown, 98 Mass. 547 ; but he adds that " in a deed, the words of description' are, 
 of course, intended to relate to an estate owned by the grantor. And, in our opinion, 
 this is also the presumption in construing a contract for a future conveyance. If the 
 party who enters into the agreement, in fact owns a parcel answering to the descrip. 
 tion, and only one such, that must he regarded as the one to which the description 
 refers.'' 
 
634 SALE OF PRETENDED TITLE. [CH. IX. § II. 
 
 suffered before the contract, the purchaser was relieved against 
 a bond which he had * given for the purchase money, and the 
 seller was compelled to repay the interest which he had re- 
 ceived.(/)(l) 
 
 35. But if a purchaser neglect to look into the title, it will be 
 considered as his own folly, and he can have no relief. It has 
 even been laid down, that if one sells another's estate without 
 covenant or warranty for the enjoyment, it is at the periLof him 
 who buys, because the thing being in the realty, he might have 
 looked into the title, and there is no reason he should have an 
 action by the law where he did not provide for himself.(g')(2) 
 
 36. By the 32 H. 8, c. 9, no person must either buy or sell any 
 pretended title unless the seller or the persons from whom he 
 claims have been in possession of the estate or of the reversion 
 thereof, or taken the rent thereof for a year before the sale, unless 
 the purchaser is in lawful possession, in which case he may buy 
 in any pretended right; and he will not in any case be affected, 
 unless he bought with notice. (A) But the sale of an equitable 
 estate under a contract is binding, and not within the statute.(i) 
 It is every day's practice.(ti) 
 
 37. So a contract at law to sell an estate, if it, shall be devised 
 to the seller by a person living is valid, and is not contrary to 
 public policy, neither is it a sale of a pretended right under 
 
 (/) Hitchcock V. Giddings, 4 Pri. 135, B. 717; "Wilson u. Short, 6 Hare, 366, 
 
 et qu. [See 4 Kent (11th ed.), 446-450.] 
 
 (g) Eoswell v. Vaughan, 2 Cro. 196; (i) Wood v. Griffith, 12th Feb. 1818, 
 
 Lysney v. Selby, 2 Ld. Bay, 1118 ; Good- MS. ; Cockell v. Taylor, 15 Beav. 103. 
 
 title V. Morgan, 1 T. B. 755; Anon. 2 {i^} [The statute against buying and 
 
 Free. 106; Hitchcock c,-. Giddings, 4 Prl, selling pretended titles, does not prohibit 
 
 135. the sale and purchase of equitable titles. 
 
 (A) 4 Rep. 26, a; Bac. Ab. Mainten- It does not apply to trust estates. It 
 
 anoe (E); Anson o. Lee, 4 Sim. 864; means legal and not equitable titles. 4 
 
 Prosser v. Edmunds, 1 Yo. & Col. 481 ; Kent (11th ed,), 449, in note; Allen v. 
 
 Byrne d. Frere, 2 Mol. 157; Hitchins v. Smith, 1 Leigh, 231; Baker d. Whiting, 
 
 Lander, Coo. 34 ; Doe v. Prothero, 1 C. 3 Sumner, 476.] 
 
 (1) LordEldon, in a case before him, expressed considerable doubt upon the doc- 
 trines in the case in the exchequer. 
 
 (2) In the bargain and sale of an existing chattel by -which the property passes, the 
 law does not (in the absence of fVaud) imply any warranty of the good quality or con- 
 dition of the chattel so sold. But the bargain and sale of a chattel as being of a par- 
 ticular description, does imply a contract that the article sold is of that description. Barr 
 j;, Gibson, 3 M. & W. 399, per curiam, see n. to p. 337, sup, 
 
 [356] 
 
CH. IX. § II.] LOTTERY. CHAMPERTY : MAINTENANCE. 535 
 
 the statute or a wagering policy prohibited by the 14 Geo. 3, 
 c. 48.{k) 
 
 38. If an estate be sold for an illegal purpose, e. g. to be put 
 up to lottery, an action could not be maintained for the price; 
 but if the estate be conveyed, and an independent deed of cove- 
 nant be entered into for payment of a sum of money which in 
 truth is the purchase money, yet in the absence of evidence to 
 the contrary it would be presumed that that covenant was not 
 entered into in pursuance or in furtherance of the illegal agree- 
 ment, but that the illegal contract was at an end and the cove- 
 nant was a voluntary valid act.(Z) 
 
 39. A conveyance may be operative to pass the interest, al- 
 though it may be void as an attempt to multiply votes.(TO) 
 
 * 40. It is not champerty by an agreement to enable the bond 
 fide purchaser of an estate to recover for rent due, or injuries 
 done to it previously to the purchase.(w) And the mere assign- 
 ment to a purchaser of the subject of a suit, is not maintenance. 
 But if the assignment contain an indemnity from the purchaser 
 to the seller against the expenses which had been incurred or 
 might be incurred by the seller in the prosecution of the suit, the 
 transaction amounts to maintenance, and cannot be enforced. (o) 
 
 41. The sale of an advowson, or of a next presentation, is 
 valid although the incumbent is in extremis, to the knowledge of 
 both seller and buyer, where the parties have not any particular 
 clerk in view ; and it is unimportant that the incumbent actually 
 die a few hours after the execution of the deed. The right to 
 sell the presentation continues as long as the incumbent is in 
 existence.(;9) 
 
 (it) Cook V. Field, 15 Q. B. 460. Sprye v. Porter, 26 L. J. N. S. G. B. 64; 
 
 (/) Fisher ». Bridges, 17 Jar. 1121. Bainbridge v. Moss, 3 Jur. N. S. 58; 
 
 (m) Phillpotts 1). Phillpots, 10 C. B. 85. Thomas v. Lloyd, 3 Jur. N. S. 288 ; 
 
 (n) Williams w. Protheroe, 5 Bing. 309; Knight v. Bowyer, 23 Beav. 609; 2 De 
 
 3 Yo. & Jer. 129 ; Scully v. Delany, 2 Ir. G. &'J. 421, aff'd Anderson v. Radcliffe, 
 
 Eq. R. 379. Radcliffe v. Anderson, 1 BU. Bl. & Ell. 
 
 (o) Harrington e. Long, 2 My. & Ke. 806, 819; Earle v. Hopwood, 9 C. B. N. 
 
 590, sed qu. The purchaser appears to S. 566 ; Myers v. Un. Guar. & Life A. S. 
 
 have had an indirect object to carry on 7 De G., M. & 6. 112 ; Scott v. Miller, 1 
 
 the suit for other purposes. Burke v. John. 221. 
 
 Greene, 2 Bal. & Beat. 517; Moore v. (p) Sugd. H. of L. 672 ; Fox v. Bp. of 
 
 Cre^, 1 Dru. & Wal. 521 ; Hunter o. Chester, 1 Dow. N. S. 416 ; 3 Bli. N. S. 
 
 Daniel, 4 Hare, 420; 8 Hare, 274, n.; 123; 2 B. & C. 435. 
 Bodkin v. O'Kelly, 5 Ir. C. L. R. 287 ; 
 
 [367] 
 
636 
 
 SLANDER OF TITLE. 
 
 [CH. IX. § III. 
 
 42. We may here mention a case,(q) where a testatrix directed 
 an advowson to be sold immediately after the death of the in- 
 cumbent ; it was of course held that it could not be sold in his 
 lifetime, but it was further held that the next presentation could 
 not be sold during the life of the incumbent for the benefit of 
 the person entitled under the will. A sale of an advowson by 
 the owner where his son was the incumbent for a price to be 
 paid down, upon which interest was to be paid by the seller 
 until there was a vacancy, was held to be valid. (r) 
 
 43. An action on the case for slander of the vendor's title will 
 not lie against a person for giving notice of his claim upon an 
 estate, either by himself or his attorney, at a public auction, or 
 to any person about to buy the estate, although the sale be 
 thereby prevented ; (5) and to sustain the action, malice in the 
 defendant,{<) and damage to the plaintiff,(M) must be proved. (m^) 
 If the words be spoken to benefit a friend who was a bidder, or 
 to obtain the property for himself at a lower price, or otherwise 
 to injure the owner, that would amount to maKtia.{x) 
 
 » SECTION m. 
 
 OF TITLE : IN ACTIONS AT LAW. 
 
 Injiiuction until master's report of title. 
 Title to be proved bad. 
 
 f Damages. — None for loss of bargain. 
 
 I Sikes V. Wild. 
 
 What expenses may be recovered. 
 ISTo damages for loss by the funds. 
 Interest on deposit recoverable. 
 And expenses of investigating title. 
 But not as money had and received, &c. 
 
 12. Costs of survey. 
 
 14. Right of action in purchaser's personal 
 
 representative. 
 
 15. Costs as between attorney and client. 
 
 16. Particular of objections of law. 
 
 17. Averments by seller of title. 
 
 18. Tender of conveyance unnecessary if 
 
 title bad. 
 
 19. Seller restrained from bringing an action 
 
 after bill dismissed. 
 
 (g) Bristow v. Skirrow, 27 Beav. 590. 
 
 (r) Sweet v. Meredith, 8 Jnr. N. S. 367 ; 
 a case of some nicety. 
 
 (s) Hargrave v. Tie Breton, 4 Burr. 
 2422. 
 
 («) Smith V. Spooner, 3 Taunt. 246; 
 
 2 C. B. 624, 626 ; Pater v. Baker, 3 C. B. 
 
 861. 
 
 (w) Malachy v. Soper, 3 Bing. N. C. 
 
 371. 
 
 (ill) [gee 2 Greenl. Ev. § 428.) 
 
 (x) Brook V. Eawl, 4 Ex. 521; 19 L. 
 
 Kowe V. Boach, 1 Man. & Sel. 304; Pitt J. N. S. Ex. 114; see Bignell v. Buzzard, 
 V. Donovan, lb. 639 ; Blackham v. Pugh, 3 H. & N. 217. 
 
 [358] 
 
CH. IX. § III.] 
 
 TITLE TO BE PROVED BAD. 
 
 537 
 
 1. If objections arise to the title, and the vendee bring an 
 action at law on the ground of want of title, and the vendor file 
 his bill, and an injunction be granted, the court will not dissolve 
 it, without a report as to the title.(a) 
 
 2. Where a purchaser rests his action on a defect in the title, 
 it is not sufficient to show that the title has been deemed insuffi- 
 cient by conveyancers, but he must prove the title bad. (6) If 
 he succeed in proving the title bad, he will, according to the 
 counts upon which he recovers, obtain a verdict either for his 
 deposit or for damages, which in most cases would be regulated 
 by the amount of the deposit. 
 
 3. If he declare on the common money counts, he of course 
 cannot obtain any damages for the loss of his bargain ; and even 
 if he affirm the agreement by bringing an action for non-perform- 
 ance of it, he will obtain nominal damages only for the loss of 
 his bargain,(c) because a purchaser is not entitled to any com- 
 
 (a) Church v. Xegeyt, 1 Pri. 301. 
 
 (6) Camfield v. Gilbert, 4 Esp. 221. 
 
 (c) riureau v. Thornhill, 2 Bla. 1078; 
 3 Bos. & Pul. 167; Brigs case. Pal. 364 ; 
 Qare v. Maynard, 6 Ad. & El. 519 ; Bratt 
 v. Ellis, Jones u. Dyke, Purch. App. ; 
 Buckley v. Davison, 5 Ir. C. L. E. 211 ; 
 Simons v. Patchett, 7 E. & B. 568 ; [Sikes 
 V. WM, 1 B. & S. 587 ; affirmed 4 B. & 
 S. 421 ; Bain v. Pothergill, 19 W. R. 134, 
 Exch. This rule under like circumstances 
 has been adopted in several cases in the 
 United States. See Peters v. McKeon, 4 
 Denio, 546, 550; Baldwin v. Munn, 2 
 "Wend. 399; Bitner v. Brough, 11 Penn. 
 St. 127 ; Allen v. Anderson, 2 Bibb, 415; 
 Cox 17. Strode, 2 Bibb, 275 ; Dunnica u. 
 Sharp, 7 Missou. 71 ; Thompson v. Guth- 
 rie, 9 Leigh, 101 ; Herndon v. Venoble, 7 
 Dana, 371 ; Coombs v. Tarlton, 2 Dana, 
 464; Fletcher v. Button, 6 Barb. 646; 
 Blackwell v. Lawrence Co. 2 Blackf. 143; 
 Sheets v. Andrews, 2 Blackf. 274 ; With- 
 erspoon v. Anderson, 3 Desaus. 247, 248 ; 
 2 Da;rt V. & P. (4th Eng. ed.) 871-, 872 ; 
 Conger f. Weaver, 20 N. Y. 140 ; Sween 
 V. Steele, 5 Iowa, 352 ; Wilson v. Spencer' 
 11 Leigh, 261 ; Drake v. Barker, 34 N. J. 
 (5 Vroom) 358; Wheeler v. Styles, 28 
 
 Texas, 240. In Pennsylvania, where an 
 action may be maintained for breach of a 
 parol contract for the sale of land, the 
 measure of damages in such an action is 
 the actual consideration passing between 
 the parties. If the consideration be ser- 
 vices, and the services have been rendered, 
 they are to be compensated according to 
 their value ; if money, and the money has 
 been paid, the measure of damages in the 
 amount paid with interest. But the plain- 
 tiif cannot recover damages for the loss of 
 his bargain, and, therefore, evidence of the 
 value of the land is irrelevant. Ewing v, 
 Thompson, 66 Penn. St. 382 ; Dumars v. 
 Miller, 34 Penn. St. 319; Hertzog v. 
 Hertzog, 34 Penn. St. 418, in which the 
 subject was thoroughly and exhaustively 
 discussed, and previous cases holding a 
 contrary doctrine overruled ; Graham v. 
 Graham, 34 Penn. St. 475; McNair v. 
 Compton, 35 Penn. St. 23 ; see Burlin- 
 game v. Burlingame, 7 Cowen, 92 ; Welch 
 V. Lawson, 32 Miss. 170; King v. Brown, 
 2 Hill, 485; Boardman v. Keeler, 21 Vt. 
 84. Although an oral contract for the 
 sale of land is valid, and an action may be 
 maintained for the breach of it in Penn- 
 sylvania, still it passes no interest in the 
 
538 
 
 AMOUNT OF DAMAGES. 
 
 [CH. IX. § m. 
 
 pensation for the fancied goodness of his bargain which he may 
 suppose he has lost, where the vendor is, without fraud, incapa- 
 ble of making a title.(c^) And where an auctioneer, under an 
 old authority sold the property, and received a deposit without 
 any communication with his principal, who had himself pre- 
 
 land and furnishes no right to demand 
 specific performance ; and perhaps the re- 
 luctance of the court to encourage the en- 
 forcement of such contracts has in some 
 measure qualified the rule as to the measure 
 of damages for breach of such a contract. 
 See Bender v. Bender, 37 Penn.St. 419; 
 and Mason v. Kaine, 67 Penn. St. 133, in 
 which the case of Hertzog v. Hertzog, ubi 
 supra, is referred to, and cases of fraud 
 and bad faith excepted out of the rule 
 laid down in it. But in an action, for 
 services performed on the failjh of an oral 
 agreement to convey lands in payment, in 
 New Hampshire where such an agreement 
 is void under the statute of frauds, the 
 value of the land is competent though not 
 conclusive evidence of the value of the 
 services. Ham v. Goodrich, 37 N. H. 
 185.] 
 
 (c') [The doctrine is well stated in 
 Chitty Contracts (9th Eng. ed. p. 288), 
 thus : " Where the vendor of an estate is, 
 without fraud on his part, unable to make 
 out a title, the purchaser is not entitled to 
 recover'daraages for the loss of the bargain, 
 but only the money he has paid, with in- 
 terest, and expenses. Pounsett v. Fuller, 
 17 C. B. 660'; Flureau «. Thornhill, 2 
 Bl. 1078 ; Walker v. Moore, 10 E. & C. 
 416. And, accordingly, it has been held, 
 that this rule applies where, although the 
 vendor is unable to make out a title, he 
 has nevertheless acted bond fide, and with 
 reasonable grounds for thinking that he 
 could make a title to a purchaser. Sikes 
 V. "Wild, 1 B. & S. 587; S. C. (in Cam. 
 Scac.) 4 B. & S. 421 ; Bain v. Fothergill, 
 L. R. 6 Exch. 59, n. ; Meason v. Kaine, 67 
 Penn. St. 132. In Drake v. Baker, 34 N. 
 J. (5 Vroom) 358, it was held that where 
 a person is prevented from complying 
 with his agreement to sell real estate on 
 
 account of a latent flaw in his title, the 
 vendee cannot recover damages for the 
 loss of his bargain. The court recognized 
 the exceptional rule adopted in Flureau v. 
 Thornhill, 2 W. Bl. 1078, and Beasley C. 
 J. observed that the rule in it is entirely 
 established. The authority in its support, 
 both English and American, is so abun- 
 dant, and its existence is so generally 
 recognized, that it is unnecessary to refer 
 to books to prove its prevalence in the 
 jurispiTidence of New Jersey. The reason 
 of this rule is said to be, that these con- 
 tracts are merely upon condition, fre- 
 quently expressed, but always implied, 
 that the vendor has a good title. Per 
 Blackstone J. in Flureau v. Thornhill, 2 
 Bl. 1078 ; Engel ... Fitch, L. K. 3 Q. B. 
 326 ; see per Blackburn J. in Lock v: 
 Furze, L. R. 1 0. P. 453, 454. Whether 
 this basis of the rule exists to any con- 
 siderable extent in the United States, is 
 very doubtful. In Massachusetts, and in 
 many other States, in an action against 
 a vendor for breach of a contract to con- 
 vey, it seems to make no difference in re- 
 spect to damages whether he is unable or 
 unwilling to convey : the damages to the 
 purchaser are the same in either case. 
 See Western Railroad Corp. u. Babcock, 
 6 Met. 358; HUl v. Hobart, 16 Maine, 
 164 ; Warren v. Wheeler, 21 Maine, 484 ; 
 Lawrence v. Chase, 54 Maine, 196; Sedg- 
 wick Meas. of Damages (5th ed.), 200 ; 
 Hopkins v. Lee, 6 Wheat. 109; Cannell 
 V. M'Clean, 6 Harr. & J. 297 ; Nichols v. 
 Freeman, 11 Ired. 99 ; Bryant v. Ham- 
 bruck, 9 Geo. 133 ; Whiteside v. Jennings, 
 19 Ala. 784; King v. Brown, 2 Hill, 485 ; 
 Burlingame v. Burlingame, 7 Cowen, 92 ; 
 'Boardman v. Keeler,'21 Vt. 84 ; Taylor v. 
 Rowland, 26 Texas, 293.] 
 
CH. IX. § III.] NOMINAL OR REAL DAMAGES. 539 
 
 viously sold the property to another person, the purchaser from 
 the auctioneer was held not to be entitled to any damages for 
 the loss of his bargain. (d) So in Walker v. Moore,(e) where 
 after the contract the abstract was delivered and showed a good 
 title, and the purchaser resold the estate at a profit, and then 
 upon an examination of the deeds it appeared that the title was 
 defective, and he had * to pay to the second purchasers the costs 
 of investigating the title ; it was held that the original purchaser 
 could not recover from the original seller the costs of the resale 
 or the costs paid to the second purchasers, or any damages for 
 the loss of the bargain. But one of the judges was of opinion, 
 that if the abstract had been examined with the deeds and found 
 correct, the purchaser might perhaps have been justified in acting 
 on the faith of having the estate, and if after that time he had 
 made a subcontract, the learned judge thought he would have 
 been entitled to recover the expenses attending it, if it failed in 
 consequence of any defect in the title of bis vendor. And 
 further, if there were mala fides in the original vendor (but not 
 otherwise), he was not prepared to say that the purchaser might 
 not recover the profits which would have arisen from the re- 
 sale.(e^) And in a later ease on this subject,(/) where the seller 
 had only a written agreement for the right of shooting, which he 
 sold for the remainder of his term, which right as an incorporeal 
 hereditament could only be granted under seal ; it was held that 
 the purchaser was entitled only to nominal damages and the 
 expenses of investigating the title, and not to his expenses of a 
 journey to view the manor or of preparing a deed to obtain a 
 new title, nor to his expenses in obtaining another right of shoot- 
 ing. This was the case of a seller having an equitable title 
 which he could not convert into a legal one. 
 
 4. But these cases were not so decided without some diffi- 
 culty. Flureau v. Thornhill laid down the rule generally, and 
 that rule was followed in later cases, and was considered to be 
 perfectly settled. But in Hopkins v. Grazebrook,(g') where the 
 seller having only a contract for the purchase of the estate, and 
 
 (d) Tyrer v, King, 2 C. & K. 149. Bitner u. Brougli, 11 Penn. St. 127 ; Mc- 
 
 (e) 10 B. & C. 416 ; qu. if the examina- Donnell v. Dunlop, Hardin, 41.] 
 
 tion had been made before the second sale. (/) Pounsett v. Fuller, 17 C. B. 660. 
 
 (ci) [See Adams v, M'Millan, 7 Port*, (g) 6 B. & C. 31. 
 73; Peters v. McKeon, 4 Denio, 546; 
 
 £359] 
 
540 NOMINAL OE REAL DAMAGES. [CH. IX. § III. 
 
 not having obtained a conveyance, sold it by auction, with a stip- 
 ulation to make a good title by a day named, and the original 
 vendor refused to convey, it was held that the purchaser at the 
 auction might, beyond his expenses, recover damages for the loss 
 which he sustained by the contract failing. Lord Tenterden 
 was not prepared to assent to the general rule ; but he distirl- 
 guished the case from Flureau v. Thornhill because the seller 
 had entered into a contract to sell without the power to confer 
 even the shadow of a title, and was therefore responsible for the 
 damage sustained by a breach of his contract. And this case 
 was followed in one where the seller, knowing he had only lim- 
 ited interests, represented himself as owner of the fee.(A) But 
 Hopkins V. Grazebrook has not been followed. It would be 
 difficult to support it, for the seller, in the view of equity, had 
 an equitable title, and such sales are clearly valid in equity ; al- 
 though if a man were a mere land jobber, and bought an estate, 
 and before a conveyance, and without having paid for it, carried 
 it at once into the market with a view *to profit, that might be 
 considered a case of fraud, and an attempt to sell, at an im- 
 proved price, the original seller's estate, and thereby involve him 
 and the subpurchaser in litigation. Short of circumstances 
 amounting to fraud, the case seems to fall within the general 
 rule. In the later cases of Walker v. Moore and Pounsett v. 
 Fuller, the courts followed Flureau v. Thornhill without expressly 
 overruling Hopkins v. Grazebrook ; but the decisions in those 
 cases do in effect overrule the decision in that case. It always 
 appeared to the writer that the distinction taken in the latter 
 case could not be supported without overruling Flureau v. 
 Thornhill, and it is much too late to impeach the authority in 
 that case, which moreover was properly decided. (A^) 
 I 
 
 (A) Robinson u. Harman, 1 Ex. 850 ; tlie opinions referred to, if the case of 
 
 [Bitner I'. Brongh, 11 Penn. St. 127.] Hopkins v. Grazebrook is considered on 
 
 {h}) [Bat in the very recent case of its true grounds, it appears plainly dis- 
 
 Engel V. Fitch, L. E. 3 Q. B. 329, 330, tinguishable from Flureau v. Thornhill, 
 
 Cockbum C.J. said : " The case of Hop- and stands upon a perfectly intelligible and 
 
 kins ti. Grazebrook, 6 B. & C. 31, has been, sound foundation. There is an obvious 
 
 it is true, more than once questioned by difference between the case of a man who, 
 
 high authority, as inconsistent with the being in possession and the undoubted 
 
 decision in Flureau v. Thornhill, 2 W. Bl. owner of real property, is unable to make 
 
 1078 ; but with the utmost deference for out a marketable title, and that of one 
 
 [360] 
 
CH. IX. § m.] NOMINAL OR REAL DAMAGES. 541 
 
 5. Since the publication of the last edition of this work, the 
 cases have been elaborately reviewed in the^case of Sikes v. 
 Wild.(t) The estate was vested in trustees under a settlement 
 to secure the wife 100/. a year if she survived her husband: he 
 by his will devised the estate to trustees to sell, and, amongst 
 other things, to pay his wife the lOOZ. a year out of the proceeds 
 of the sale. The widow verbally agreed to concur in a sale 
 upon having adequate provision for her annuity. Thereupon 
 the trustees sold -the estate as free from incumbrances. The 
 widow retracted her consent, and refused to join in the convey- 
 ance to the purchaser, who brought an action to recover damages 
 beyond the deposit and the costs of investigating the title. The 
 jury found for the plaintiff, but they also found that the sellers 
 acted bond fide, and that they had at the time of the sale reason- 
 able grounds for thinking that they could make a good title to 
 the purchaser. Upon leave reserved the case came before the 
 court of queen's bench, and it was decided by Wightman and 
 Blackburn JJ., against Cockburn C. J., that the purchaser was 
 not entitled to any general damages. The two learned judges 
 showed that Hopkins v. Grazebrook v^^as decided upon Lord 
 Tenterden's erroneous view, that any speculative contract to sell 
 things not in possession was illegal, and void as against the pol- 
 icy of the law. They distinguished the case before them from 
 the case of Hopkins v. Grazebrook, and they expressed doubts 
 about the soundness of the exception in that ease in any point 
 of view. They did not see how the evidence of misconduct 
 
 who, not being the owner, bat having only ence solely to difficulty in making out 
 a contract for the purchase of real estate, title." " According to our opinion, the 
 takes it upon himself to sell it to another , rule in Plureau v. Thornhill can have no 
 as his own, and as if the title were his to application where the failure either to 
 convey." " It is upon this distinction, as make out a title, or to give possession, 
 it appears to us, that the court of king's arises not from the inability of the vendor, 
 bench proceeded in Hopkins v. Grazebrook. but from his unwillingness either to remedy 
 It is true that, in criticising that case, it a defect in the title, or to obtain possession 
 has been said that the decision proceeded on the score of expense." The decision 
 on the ground of the misconduct of the in Engel v. Fitch, was affirmed in the ex- 
 defendant. This assertion " . . . " seems chequer chamber, and the material parts of 
 to us altogether inaccurate." " It merely the above citation were quoted with appro- 
 comes to this, that a man who undertakes bation by Kelly C. B. L. B. 4 Q. B. 659.] 
 to sell what he has not secured the com- (i) 1 B. & S. 587 ; [affirmed 4 B. & S. 
 mand of, has only himself to blame, and 421 ; 32 L. J. N. S. Q B. 755.] 
 is not protected by a rule which has refer- 
 
542 NOMINAL OB REAL DAMAGES. [CH. IX. § III. 
 
 could alter the rule by which the damages for the breach of a 
 contract were to be assessed. It might render the contract void- 
 able on the ground of fraud, or give a cause of action for deceit, 
 but surely it could not alter the effect of the contract itself, and, 
 if it depended upon an implied condition resulting from the 
 general understanding of vendors and purchasers, which they 
 considered the true rule, they thought that a court competent to 
 review Hopkins v. Grazebrook might consider whether the im- 
 plied condition excluded * such cases as that, and whether the 
 general understanding of conveyancers had not been misappre- 
 hended. This seems to be the true rule ; it is a point which, 
 whilst at the bar, I should have treated as beyond doubt. Cock- 
 burn C. J. differed from the other judges, and held that the pur- 
 chaser was entitled to substantial damages, but the decision was 
 of course according to the opinion of the majority. The learned 
 C. J. observed, that the sellers knew themselves to have neither 
 the legal nor the equitable estate in the land which they con- 
 tracted to sell; they were trustees under a devise which was in- 
 operative in consequence of the land, which the devisor had 
 taken upon himself to dispose, being already vested in trustees 
 under a settlement. They knew that without the consent of the 
 cestui que trust and her trustees to abandon the settlement and 
 their concurrence in the sale, they, the sellers, had no right or 
 power to convey the land ; they were contracting to sell at a 
 time when they had no power to sell, and no more than the ex- 
 pectation of making out a title.(ji) 
 
 (i'-) [In the still later and very recent to give it up. The defendants could have 
 case of Engel v. Fitch, L. R. 3 Q. B. 314, ousted him by ejectment, btit they refused 
 this matter was subjected to a very full to complete the sale on the ground of ex- 
 and elaborate discussion in the queen's pense. On this the plaintiff brought an 
 bench. It appeared in the case that the action for breach of the contract of sale, 
 defendants, mortgagees of the lease of a and it was held that as the breach of con- 
 house, sold it by auction to the plaintiff, tract arose not from inability of the defend- 
 the particulars of sale stating that posses- ants to make a good title, but from their 
 sion would be given on completion of the refusal to take the necessary steps to give 
 purchase. Tlie plaintiff resold at an ad- the plaintiff possession pursuant to their 
 vauce to a person, who wanted the house contract, the plaintiff could recover not 
 for occupation. Upon an investigation of only the deposit and the expenses of inves- 
 the title it was found satisfactory, but, on tigating the title, but also damages for the 
 the plaintiff requiring possession before loss of his bargain ; and that the measure 
 completing the purchase, the mortgagor of damages was the profit which it was 
 was found to be in possession and refused shown he could have made on a resale. 
 
 [361] 
 
CH. IX. § III.] NOMINAL OE REAL DAMAGES. 
 
 543 
 
 6. Now, the right of the sellers stood simply thus : they had 
 not the legal estate, and they could not obtain it during the 
 
 The case of FlureaU v. Thomhill, 2 W. 
 Bl. 1078, and the subsequent cases noticed 
 in the text, were thoroughly reviewed and 
 examined by Cockburn C. J. The case of 
 Engel V. Fitch, mm. Engell v. Mtch, was 
 affirmed in the exchequer chamber, L. R. 
 4 Q. B. 659, with a slight difference in the 
 mode of stating the measure of damages, 
 which in the exchequer chamber was held 
 to be the difference between the contract 
 price and the value at the time of the 
 breach of the contract, the profit which it 
 was shown the plaintiff could have made 
 on a resale being the evidence of this en- 
 hanced value and its amount. See Godwin 
 V. Francis, L. E. 5 C. P. 295. In Engell 
 V. Fitch, L. K. 4 Q. B. 659, Kelly C. B. 
 said : " No case has been cited in which 
 the purchaser of real property has been 
 held disentitled to recover damages like 
 the present, except in the case of Flureau 
 u. Thomhill, and the cases which followed 
 it, and upon the one ground of the vendor's 
 inability to make out a title ; and there is 
 no authority to show that when the breach 
 of contract has been on any other ground, 
 any other rule as to damages applies in 
 contracts as to the sale of real property 
 than that which prevails in the ordinary 
 case of a breach of contract. In com- 
 menting on this case, Mr. Dart (2 Dart V. 
 &P. 4th Eng. ed. 873, 874) says : " This 
 decision, though scarcely reconcilable with 
 some of the earlier authorities, has placed 
 the rule on a clear and intelligible footing, 
 and has excluded from its operation the 
 case of a vendor selling mala jfide, or enter- 
 ing into a merely speculative contract for 
 sale." In Lock v. Furze, L. R. I C. P. 
 441, Exch. Ch., it was held that the rule 
 in Flureau v. Thomhill does not apply to 
 the case of a lease granted by one who has 
 no title to grant it. The rule, as it stands 
 in England at the present time, is well 
 stated in Chitty Contracts (9th Eng. ed.^. 
 289), thus : " If the vendor knew, at the 
 time the contract was entered into, that he 
 
 had no title ; or if the sale goes off because 
 he changes his mind, or because he neglects 
 to take the necessary steps for putting the 
 purchaser into possession, the purchaser 
 may, in an action for breach of such con- 
 tract, recover, beyond his expenses, dam- 
 ages for the loss of his bargain. Per 
 Lord Campbell in Simons v. l^atchett, 7 
 El. & Bl. 568, 572 ; Robinson u. Hardman, 
 1 Exch. 850 ; Hopkins v. Grazebrook, 6 B_ 
 & C. 31 ; Engel v. Fitch, L. R. 3 Q. B. 
 314 (in Cam. Scac.) ; 4 Q. B. 659 ; God- 
 win V. Francis, L. R. 5 C. P. 295 ; " Will- 
 iams V. Glenton, L. R. I Ch. App. 200. 
 The current of American authority runs 
 in the same direction. Thus, it has been 
 held that, where the vendor has in bad 
 faith agreed to sell land to which he knew 
 he had no title; McDonnell tf. Dunlap, 
 Hardin, 41 ; Davis ». Lewis, 4 Bibb, 456 ; 
 Baldwin v. Mnnn, 2 Wend. 399 ; McNair 
 V. Compton, 35 Penn. St. 23 ; Brinckerhoff 
 V. PJielps, 24 Barb. 100 ; S. C. 43 BaiJ). 469 ; 
 Drake o. Baker, 34 N. J. (5 Vroom) 358 ; 
 Peters v. McKeou, 4 Denio, 546 ; Bush v. 
 Cole, 28 N. Y. 261 ; where having the title 
 at the time of the agreement to convey, he 
 has afterwards disabled himself from con- 
 veying by a transfer to a. third person; 
 Wilson V. Spencer, 11 Leigh, 261 ; Dftstin 
 V. Newcomer, 8 Ohio, 49 ; where he re- 
 fuses to convey because the land is greatly 
 enhanced in value ; Brinckerhoff v. Phelps, 
 24 Barb. 100 ; S. C. 43 Barb. 469 ; and also, 
 where, having the title at the time, he ought 
 to convey according to his agreements, he 
 still refuses to convey ; in all these cases 
 in a suit at law for a breach of the agree- 
 ment to convey, the vendee is entitled to 
 recover such sum as will indemnify him 
 for the actual and direct loss sustained by 
 the non-performance of the agreement, 
 which would generally be the difference 
 between the contract price and the en- 
 hanced value of the land when the convey- 
 ance should have been made ; Baldwin v. 
 Munn, 2 Wend. 399; Western Railroad 
 
644 
 
 NOMINAL OB REAL DAMAGES. 
 
 [CH. IX. § m. 
 
 widow's life without her consent, nor could they discharge the 
 estate of her 100/. a year. But, subject to that, they were own- 
 
 Corporation V. Babcock, 6 Met. 358; 
 Brinckerhoff w. Phelps, 24 Barb. 100 ; S. C. 
 43 Barb. 469 ; Engel v. Fitch, L. E. 3 Q. B. 
 314 ; L. E. 4 Q. B. 659 ; 2 Dart V. & V- 
 (4th Eng. ed.) 872-874 ; Hill v. Hobai't, 16 
 Maine, 164; Bitner t>. Brough, 11 Penn. 
 St. 127, 139 ; Meason v. Kaine, 67 Penn. St. 
 132 ; Sween v. Steele, 5 Iowa, 352 ; Driggs 
 V. Dwight, 17 Wend. 71 ; Hopkins v. Lee, 
 6 Wheat. 109 ; Fletcher v. Button, 6 Barb. 
 647 ; Pringle v. Spaulding, 53 Barb. 1 7 ; 
 and in Pennsylvania, as against a fraudu- 
 lent vendor of real estate, damages may be 
 given for all the expense in which his fraud 
 involved the plaintiff, the vendee. McNair 
 V. Compton, 35 Penn. St. 23 ; Lee v. Dean, 
 3 Whart. 316 ; Meason v. Kaine, 67 Penn. 
 St. 126, 132 ; Hertzog v. Hertzog, 34 Penn. 
 St. 418, 420-428; Good v. Good, 9 Watts, 
 567; King v. Pyle, 8 Serg. & E. 166. In 
 debt for breach of a bond conditioned for 
 the conveyance of land, and reciting the 
 payment of the consideration, the measure 
 of damages was held to be the value of the 
 land at the time the conveyance should 
 have been made ; Hill v. Hobart, 16 Maine, 
 164. In thiscaseShepley J. said: " Whe;i 
 the vendee proceeds at law he is entitled to 
 a complete indemnity and to no more. By 
 a performance he would have received the 
 land, and not receiving that, if he obtains 
 the value at the time, that is the exact 
 measure of his loss," p. 169. A similar 
 rule was adopted in Bryant v. Hambrick, 
 9 Geo. 133; Barham v. Nichols, 3 E. I. 
 187; Burr v. Todd, 41 Penn. St. 206; 
 Shaw V. Wilkins, 8 Humph. 647 ; McKee 
 V. Brandon, 2 Scam. 339 ; Hopkins u. 
 Yowell, 5 Yerger, 305 ; Hopkins v. Lee, 6 
 Wheat. 109 ; Cannell v. McClean, 6 Harr. 
 & J. 297 ; Marshall v. Haney, 9 Gill, 251 ; 
 Whiteside v. Jennings, 19 Ala. 784. In 
 Hill V. Hobart, there being no other evi- 
 dence, the consideration paid and interest 
 were taken as the value of the land. In a 
 case somewhat similar (Fletcher k Button, 
 6 Barb. 646), where also the purchase 
 
 money had been actually paid, the rule 
 adopted by the circuit court having been 
 that the vendee was entitled to recover 
 back the amount paid and interest, the 
 supreme court, hearing the case on appeal 
 by the vendor, regarded the measure of 
 damages adopted by the circuit judges as 
 sufficiently favorable to the vendor, and in- 
 timated that a more stringent rule might 
 have been adopted, and the vendee have 
 been allowed to recover the value of the 
 land at the time it should have been con- 
 veyed, with interest from that period. See 
 Pringle v. Spaulding, 53 Barb. 17. In 
 Pennsylvania in an action on an executory 
 contract for a refusal to convey land after 
 payment of ■ the purchase money, the 
 measure of damages is the value of the 
 land at the time when it should have been 
 conveyed ; Cox v. Henry, 32 Penn. St. 18 ; 
 so also in Vermont, Boardman v. Kcelcr, 
 21 Vt. 77. Eu.ssell v. Copeland, 30 
 Maine, 332, was an action on an instru- 
 ment for the conveyance of land. The 
 vendee had given his negotiable notes for 
 the purchase money, and had paid one of 
 them; and upon this payment he was 
 entitled to a deed of the land, which, upon 
 demand, the vendor failed to deliver to him. 
 The other notes were outstanding in the 
 hands of the vendor. No evidence was in- 
 troduced to show the value of the land be- 
 yond the statement of the amount of the 
 notes given for the consideration. The 
 court in giving judgment said : " The 
 loss which the plaintiff has sustained by 
 the failure to make and deliver the deed 
 by the defendant, is the value of the land 
 at the time when the conveyance should 
 have been made, and interest thereon. 
 The value of the land at the time of the 
 contract was fixed by the parties, and the 
 case exhibits nothing tending to show that 
 the value has since changed." Such would 
 probably be the rule in all cases where the 
 value of the land being in question, there 
 was no other evidence of it but the sum 
 
NOMINAL OR REAL BAMA6ES. 
 
 545 
 
 CH. IX. § III.] 
 
 ers in possession of the equitable fee simple with a right to call 
 for the legal estate upon her death. The devise, so far from 
 being inoperative, passed this equitable estate in fee, and the 
 devisees had not an expectancy or even a reversion, but the en- 
 tire equitable fee, and could make a good title to it, subject to the 
 
 named as the consideration for the convey- 
 ance ; that sum with interest would be re- 
 garded as the value of the land at the time 
 the conveyance should be made, and thence 
 it would be taken as the measure of dam- 
 ages; see Parker v. Brown, 15 N. H. 176, 
 188. That the value of the land at the 
 time of the breach of the agreement to 
 convey, with interest, is to be taken as the 
 rule of damages, see, also, M'Kee v. 
 Brandon, 2 Scam. 339 ; Buckmaster v. 
 Gnindy, 1 Scam. 310; Letcher v. Wood- 
 son, 1 Brock. 212 ; Hopkins «. Lee, 6 
 Wheat. 109 ; Hopkins v. Yowell, 5 Yerger, 
 305; Newsom v. Harris, Dudley (Geo.) 
 180 ; Connell v. McLean, 6 Harr. & J. 
 297; Trask v. Vinson, 20 Pick. 110; 
 Stephenson v. Harrison, 3 Litt. 170; Dun- 
 can V. Tanner, 2 J. J. Marsh. 399 ; Rut- 
 ledge V. Lawrence, 1 A. K. Marsh. 396; 
 Shaw V. Wilkins, 8 Humph. 647 ; Cocke 
 V. Taylor, 2 Tenn. 50 ; Lindley i'. Lukin, 
 1 Blackf. 266 ; Marshall v. Haney, 4 Md. 
 498 ; S. C. 9 Md. 194 ; Whiteside v. Jen- 
 nings, 19 Ala. 784 ; where various Ameri- 
 can cases are examined as to interest. See 
 Handley v. Chambers, 1 Litt. 358 ; Mar- 
 shall ». Haney, 9 Gill, 194. In cases where 
 the vendee has not actually tendered per- 
 formance, or has not made an available 
 tender, but in consequence of the acts of 
 the vendor or otherwise, is still entitled to 
 maintain a suit for breach of contract on 
 the part of the vendor in not conveying; 
 the measure of damages would seem to be 
 the difference between the contract price 
 and the value of the land at the time of 
 the breach ; Lee v. Russell, 8 Ired. 826 ; 
 Nichols V. Freeman, 11 Ired. 99; Godwin 
 V. Francis, L. R. 5 C. P. 295. As to the 
 measure of damages in case of an agree- 
 ment that a third person shall make a 
 title, see Pinkston v. Huie, 9 Ala. 252 ; 
 VOL. I. 35 
 
 Dyer v. Dorsey, 1 Gill & 3. 440 ; Gibbs v. 
 Jemison, 12 Ala. 820 ; Gale v. Dean, 20 
 111. 320 ; in case of a wrongful conveyance 
 of the title to other persons than the ven- 
 dee, Pingree V. Coffin, 12 Gray, 288; in 
 cases where services are to be paid for in 
 land, Laraway i-. Perkins, 10 N. Y. 371 ; 
 Fagen v. Davison, 2 Duer, 153; Thomas 
 V. Dickinson, 12 N. Y. 364 ; ante, 358, n. 
 (c) ; Ham v. Goodrich, 37 N. H. 185. On 
 the other hand, where the action is brought 
 by the vendor against the vendee for breach 
 of a contract for the purchase of land by 
 the latter, it was held, in Old Colony Rail- 
 road V. Evans, 6 Gray, 25, 34-36, that the 
 measure of damages is not the full contract 
 price, but the difference between that price 
 and the price for which the land could have 
 been sold at the time of the breach. This 
 seems to be the English rule, see Laird v. 
 Pim, 7 M. & W. 474; Moor u. Roberts, 3 
 C. B. N. S. 842 ; ante, 238 § 47 ; where the 
 vendee has been let into possession, refuses 
 to complete, and no conveyance has been 
 executed, see 2 Dart V. & P. {4th Eng. 
 ed.) 875. In Maine it has been decided 
 that when a deed- has been duly tendered 
 to the vendee in a contract for the sale and 
 purchase of real estate, and being refused 
 by him, has been deposited in a place .sub- 
 ject to his call, the mejisure of damages in 
 a suit upon the contract, is the price agreed 
 to be paid, and interest. Oatman «. Cook, 
 33 Maine, 67 ; Alna v. Plummer, 4 Greeiil. 
 258;, Robinson v. Heard, 15 Maine, 296 ; 
 see Richards v. Edick, 17 Barb. 260 ; Sears 
 V. Boston, 16 Pick. 357 ; Gill v. Bicknell, 
 2 Cush. 358 ; Jacobs u. Peterborough & 
 Shirley Railroad, 8 Cush. 223 ; Francliot 
 V. Leach, 5 Cowen, 506 ; Shannon v. Corn- 
 stock, 21 Wend. 457 ; Tripp v. Bishop, 56 
 Penn. St. 424.] 
 
546 (NOMINAL OE EEAL DAMAGES. [CH. IX. § III, 
 
 annuity of 100?. The widow's promise might be considered as 
 a full justification of the trustees in selling the estate as if free 
 from the annuity, and if after the sale they could have procured 
 her concurrence, the purchaser would have been compelled to 
 take the title, and, if a bill had been filed, time would have been 
 allowed, if there was a fair prospect that a release of the annuity 
 could be obtained. 
 
 7. Where the agreement made with a solicitor with a view to 
 form a company was for a lease at a large premium, an.' the 
 seller and lessor was to make out his title by a short day, and 
 the seller ultimately ' produced an abstract disclosing incum- 
 brances which could not be discharged; in consequence of which 
 the association was dissolved, but the premium had not been 
 paid; it was held that the purchaser, the intended lessee, was 
 entitled to recover his expenses in preparing, stamping, and en- 
 tering into the agreement, and the expenses incurred in and 
 about investigating the title and in endeavoring to procure a 
 good title, and to procure the lease to be granted, but that he 
 was not entitled to the expenses of raising the premium or in- 
 terest, or his expenses of preparing the deed of settlement of 
 the association, or the expenses of forming the association, as 
 they were damages * incurred by the plaintiff by his own impru- 
 dence in beginning to act before he had ascertained whether the 
 seller could or could not complete his contract, nor to any profits 
 which he might have made by or from the association, which 
 loss was too remote a subject of damage to be allowed at all in 
 such a case.(_/) Nor would a tenant with a purchasing clause, 
 electing to purchase, be allowed to recover for improvements 
 made without any notice to the lessor, although it turns out that 
 the seller has not the interest which was represented in the 
 lease. (A) 
 
 8. Nor in a case of this nature is a purchaser entitled to any 
 compensation, although he may be a loser by having sold out of 
 the funds.(/) 
 
 9. He is, however, entitled to interest on his deposit ; (m) and 
 
 (j) Hanslip v. Fadwick, 5 Ex. 615. ' (I) Flureau v. Thornhill, 2 Black. 1078. 
 
 (k) Worthington v. Warrington, 8 C. (m) Ch. 17, infra. 
 B. 134 : the tenant had liberty to make 
 improvements at his own expense. 
 
 [362] 
 
CH. IX. § III.] DAMAGES. EXPENSES. 547 
 
 if the residue of the purchase money has been lying ready with- 
 out interest being made by it, he is entitled to interest on 
 that.(«) 
 
 10. Where the plaintiff declares on the original contract, and 
 lays the expenses incurred in investigating the title, &c., as spe- 
 cial damages, he will be entitled to recover them as such.(o) 
 
 11. But the expenses cannot be recovered under a count for 
 money had and received, or money paid, &c., to the defendant's 
 use, as the money is expended for the purchaser's own satisfac- 
 tion as to the title which he is about to take.(p) Nor can they 
 be recovered from the auctioneer.(g) And where the contract is 
 by parol, although the deposit may be recovered, expenses of in- 
 vestigating the title cannot.(»-) The expense of preparing the 
 conveyance can hardly in any case be recovered, for it should 
 not be prepared before the title* is accepted ; (s) but the expense 
 would be recoverable if the seller had withheld notice of an in- 
 cumbrance, the existence of which prevented the completion of 
 the purchase. 
 
 12. Nor can a purchaser recover expenses preliminary to the 
 contract. Neither will he be allowed the costs of a survey which 
 he should defer tiU he know whether or not a good title can be 
 made. But he may recover the charges for searching for judg- 
 ments, and for comparing the abstract with the deeds, for unless 
 judgments are * searched for at an early period, great expense 
 may afterwards be incurred unnecessarily; and for the same 
 reason, the comparison of deeds with the abstract should be 
 made early. (^) 
 
 13. In a case where a purchaser's counsel required certain 
 things to be done, which put the seller to trouble and expense in 
 clearing the title of difficulties, and afterwards suggested an ob- 
 
 (n) Flureau v. Thomhill, ubi supra ; 334, contra. [See Lee ti. Dean, 3 Whart. 
 
 Hodges V. Lord Litchfield, 1 Bing. N. S. 316; Bimer u. Brough, 11 Penn. St. 127.] 
 
 492; Simmons v. Heseltine, 5 C. B. N. S. (p) Camfield v. Gilbert, 4 Esp. 221. 
 
 ^5*- (?) Lee II. Munn, 1 Holt, 569. 
 
 (o) Flureau v. Thomhill, uU supra ; (r) Gosbell v. Archer, 4 Nev. & Man. 
 
 Richards v. Barton, 1 Esp. 268 ; Bratt v. 435. 
 
 Ellis ; Jones v. Djlie, App. Purch. Nos. 4 (j) Jarmain v. Egelstone, 5 C. & P. 172 ; 
 
 & 5; Camfield v. Gilbert, 4 Esp. 221; Hodges v. Ld. Litchfield, 1 Bing. N. C. 
 
 Turner v. Beaurain, 2 June, 1806, cor. Ld. 492 ; post ch. 14 s. 1. 
 
 Ellenborough, MS. ; Kirkland v. Pounsett, (<) s. C. ; as to taxing costs of a survey, 
 
 2 Taunt. 145 ; but Wilde v. Fort, 4 Taunt, see Bellas v. Harmer, 3 De G. & Sm. 454. 
 
 [368] 
 
548 EXPENSES. ACTION. COSTS. PLEADING. [CH. IX. § III. 
 
 jection, which was held a fatal one, and the seller's bill for a 
 specific performance was dismissed, Lord Eldon expresseii an 
 opinion that the seller ought to be repaid the preliminary ex- 
 penses, and expressed his hope that t^e seller would not be put 
 to agitate his right to recover what he had expended, upon which 
 the purchaser appears to have agreed to reimburse that ex- 
 pense.(M) This seems to have led to an opinion, that a seller 
 could recover such expenses, but there appears to be no founda- 
 tion for such a claim, as the seller has broken his agreement, 
 and is himself liable to an action for damages, whatever might 
 be the measure of those damages. 
 
 14. If the seller fail to make out a good -title, and the pur- 
 chaser die, his personal representative, and not his heir, is enti- 
 tled to maintain an action for damages for loss of interest on the 
 deposit, and for the expenses incurred by investigating the title, 
 for in such a case there is a personal contract, a breach of it in 
 the lifetime of the purchaser, and a loss to the personal es- 
 tate, (a;) 
 
 15. If a bill be filed by the seller for a specific performance, 
 and it is dismissed with costs, the purchaser cannot recover at 
 law the costs as between attorney and client, ultra the costs as 
 between party and party taxed and paid to him in the suit in 
 chancery.(^) 
 
 16. Where a vendee brings an action on account of the agree- 
 ment not having been completed, he will not be compelled to 
 give the vendor a particular of any of the objections in point of 
 law arising upon the abstract.(«) 
 
 17. In an action for breach of contract,(a) it is sufficient if the 
 vendor aver that he was seised in fee, and could make a good 
 and satisfactory title to the purchaser of the estate, by the time 
 specified, and it is not necessary for him to show how he de- 
 duced his title to the fee. 
 
 («) Deverell J). Ld. Bolton, 18 Ves. 514, Litt. 305 b ; Terry v. Williams, 1 Moo. 
 
 515. 498; Hallewell v. Morrell, 1 Man. & Gra. 
 
 (x) Orme v. Brougliton, 4 Mo. & Sco. 367 ; see Phillips v. Fielding, 2 H. Bla. 
 
 417; lOBing. 533. 123; Duke of St. Albans v. Shore, Ih. 
 
 (y) Hodges v. Ld. Litchfield, u6i" supra. 270; Luxton o. Robinson, Dong. 620; 2 
 
 (z) Collett V. Thomson, 3 Bos. & Pul. Nev. & Man< 415. [See Boyer v. Porter, 
 
 246 ; Squire v. Tod, 1 Ca. 293 ; Todd v. 1 Tenn. 258 ; Metcalfe v. Dallam, 4 J. J. 
 
 Hoggart, 1 Moo. & Mai. 128. Marsh. 200.] 
 
 (a) Martin v. Smith, 6 East, 553 ; Co. 
 
CH. IX. § III.] EIGHT OF ACTION AFTER BILL DISMISSED. 549 
 
 18. Although a purchaser is expressly required to prepare a 
 conveyance, yet if a bad title be produced he may, of course, 
 maintain * an action for recovery of his deposit without tender- 
 ing a conveyance. (6) 
 
 19. Where a bill by a seller for a specific performance is dis- 
 missed, and it is not added that it is without prejudice to the 
 plaintiff's remedy at law, equity will, in a proper case, restrain 
 the seller from afterwards bringing an action for damages ; for 
 example, where the bill was dismissed because the seller had no 
 title ;(c) and where a party to a bill which is dismissed is de- 
 clared to be at liberty to bring an action, yet no reliance cari, in 
 a court of law, be placed upon that permission. (e?) 
 
 (6) Seward ». Willoek, 5 East, 198; S. and cases cited ; Webb ». Webb, 6 Monroe, 
 P. ruled by Ld. EHenborough C. J. in 165.] 
 Lowndes w. Bray, Sitt. after T. T. 1810. (rf) 3 Taunt. 438; consider now the 
 
 (c) M'Namara v. Arthur, 2 Bal. & Beat, power of equity to gire damages, and- to 
 349 ; [2 Dan. Ch. Pr. (4th Am. ed.) 995, dispose of legal questions, supra. [Ante, 
 
 233, 234.] 
 
 [364] 
 
CHAPTER X. 
 
 OP THE TITLE WHICH A PURCHASER MAY REQUIRE. 
 
 SECTION I. 
 
 OP THE ROOT OP THE TITLE, AND OP THE TITLE TO VARIOUS DESCRIP- 
 TIONS OP PROPERTY. 
 
 10. 
 11. 
 12. 
 13. 
 
 14. 
 15. 
 
 16. 
 
 17. 
 18. 
 19. 
 20. 
 21. 
 22. 
 23. 
 24. 
 
 25. 
 26. 
 27. 
 28. 
 29. 
 30. 
 
 ::l 
 
 Sixty years : old rule. 
 Not altered by new law. 
 
 Where earlier title can be required. 
 
 Proof of seisin. 
 
 New statute of limitations. 
 
 Bill for shortening the period. 
 
 [ Lay tithes. 
 
 Modus. 
 
 Advowson. 
 
 Lessor's title must be produced. 
 
 Unless the purchaser knew it could not 
 
 be produced. 
 Or he agree to waive it. 
 A purchaser may show the title is bad 
 
 alivmde. 
 Where the seller and purchaser have a 
 
 common title. 
 Bishop's title not required. 
 Koot of lessor's title. 
 Renewable leaseholds. 
 Koot of that title. 
 Leasehold title. 
 Relief against non-insurance. 
 In favor of purchasers. 
 Lessor's consent to be obtained by seller. 
 
 — Covenants broken. 
 Equitable title. 
 
 Title to enfranchised copyhold. 
 To estate taken in exchange. 
 To allotments under inclosure acts. 
 To exchanges under inclosures. 
 Title to new inclosures. 
 
 31. To exchanges in common fields. 
 
 32. To allotments where made generally. 
 
 33. Sale before award. — Liability to fenc- 
 
 ing, planting, &c. 
 34.^ 
 
 35. / Where award carries the legal estate. 
 
 36. ) 
 
 * 37. Cautions to be observed in purchasing 
 allotments. — Exchanges. 
 
 38. Possession before the award. 
 
 39. Where purchaser not entitled to allot- 
 
 ment. 
 
 40. Title to strips of land. 
 
 41. To encroachments. 
 
 42. To easements. 
 
 43. To pews with a messuage. 
 
 44. To mining shares. 
 
 45. To railway shares : calls. 
 
 46. Preference railway shares. 
 
 47. Transfer of railway shares. 
 
 48. Liability of railway directors. 
 
 49. Tenant in conmion selling to co-tenant 
 
 must produce elder title to entirety. 
 
 50. Assignees of bankrupt must produce a 
 
 good title. 
 
 51. Title of building societies. 
 
 51 a. Operation of limited conditions of sale. 
 
 52. Purchase of chose in action — notice to 
 
 be given. 
 
 53. Notice necessary against subsequent in- 
 
 solvency. 
 
 54. What notice necessary. 
 
 i Effect of stop orders. 
 56. ) 
 
 [365] 
 
CH. X. § I.] 
 
 57. Verbal notice. 
 
 58. Notice unnecessary where no subsequent 
 
 notice. 
 
 59. Notice to purchaser binding. 
 
 SIXTY YEARS' TITLE. 
 
 551 
 
 60. Does not apply ,to equity of redemption 
 
 of estate : railway shares. 
 
 61. Liabilities of purchaser of chose in ac- 
 
 tion. 
 
 1. A PURCHASER before 3 & 4 Will. 4, c. 27, had a right to re- 
 quire a title commencing at least sixty years previously to the 
 time of his purchase ; because the old statute of limitations (a) 
 could not in a shorter period confer a title. In Paine v. Mel- 
 ler,(i) Lord Eldon was of opinion that an abstract not going 
 farther back than forty-three years, was a serious objection to 
 the title.(l) 
 
 2. When the new statute of limitations passed, much differ- 
 ence of opinion prevailed whether or not the tinie was to be cur- 
 tailed for carrying back the abstract. The writer thought that a 
 sixty years' title in common cases could not be required, but that, 
 as a general rule, fifty years would be the limit. It has, how- 
 ever, been decided, and certainly in accordance with the general 
 opinion, that the statute does not in eflf'ect introduce any new 
 rule on the subject ; one ground of the rule was the duration of 
 human life, and that is not affected by the statute. Of course 
 the security of ^ sixty years' title is better now than it was be- 
 fore.(c) And, as a learned judge lamented, one of the objects 
 of the legislature in passing the act, namely, that of shortening 
 the period of deducing titles, has not been effected in conse- 
 quence of the construction put upon the- statute.(<i) The rule 
 applies to leaseholds for lives,(e) and it must be shown which of 
 the lives are in existence, although the seller has only sold his 
 interest * in the lease, and it is renewable forever ; (/) but it is 
 seldom necessary to carry back a copyhold title so far. 
 
 3. Even sixty years were not sometimes sufficient. For in- 
 stance, if it might reasonably be presuined from the contents of 
 
 (a) S2 Hen. 8, c. 2; 21 Jac. 1, c. 16; 
 post ; Barnwell v. Harris, 1 Taunt. 430. 
 
 (6) 6 Ves. 349. 
 
 (c) Cooper v. Emery, 1 Phil. 338; 
 Blackburn v. Smith, 2 Ex. 783 ; Moulton 
 
 V. Edmonds, 6 Jur. N. S. 315 ; 1 De G., 
 F. & J. 246. 
 
 {d) 9 Beav. 309. 
 
 (e) Hodgkinson w. Cooper, 9 Beav. 304. 
 
 (/) Anderson v. Higgins, 1 J. & L. 
 718. 
 
 (1) Under the temporary act for facilitating the sale of estates in Ireland, 12 & 13 
 Vict. c. 77, s. 27, 28, and later acts, the title to estates sold under the act is made 
 binding upon the crown and upon all persons. 
 
 [366] 
 
652 
 
 OF THE BOOT OF A TITLE. [CH. X. § I. 
 
 the a-bstract, that estates tail were subsisting, the purchaser might 
 demand the production of the prior title. The old statutes of 
 limitation could not, in such case, be relied on ; remainder-men 
 having had distinct and successive rights, upon which, at least, 
 the statute of James could only begin to operate as they fell into 
 possession. And the lijje demand may still be made, regard be- 
 ing had to the new time of limitation.(/^) In every case where 
 the statement in the abstract, or its silence, leads to a fair infer- 
 ence that the prior title may disclose an existing defect, the pur- 
 chaser may require it to be produced, although where it is not 
 in the seller's power he cannot object to the title upon mere sus- 
 picion. 
 
 4. Where an abstract begins with a recovery to bar an entail, 
 it is usual in practice to call for thie deed creating the entail, in 
 order to see that the estate tail and remainders over, if any, were 
 effectually barred. But if the deed is lost, and possession has 
 gone with the estates created by the recovery, for a considerable 
 length of time, and the presumption is in favor of the recovery 
 having been duly suffered, the purchaser will be compelled to 
 take the title, although the contents of the deed creating the en- 
 tail do not actually appear.(g') 
 
 5. Where an estate had been held in moieties, and the title be- 
 gan more than sixty years ago with wills of the mpieties,in which 
 there were general devises only, it was held that the seisin must 
 be proved. The devises were in fee, and there was a deed of 
 covenant to produce deeds between the devisee of one of the 
 owners who had died and the other owner, which recited that 
 each party was seised in fee of a moiety. And that deed, with 
 the continued enjoyment from that time, was held to be sufficient 
 evidence of the seisin.(A) 
 
 6. The law as to adverse claims is altogether altered by the 
 3 & 4 Will. 4, c. 27.(i) Fines are abolished, and a short b&r, as 
 formerly, cannot now be made. The act limits the general time 
 to recover to twenty years, with a saving of ten years for persons 
 
 (P ) [See Seymour v. Delancey, Hopk. (h) Parr v. Lovegrove, 4 Drew. 170. 
 
 436 ; Brown v. Witter, 10 Ohio, 142.] (f) Post, ch. 12, for a view of the act. 
 
 {g) Coussmaker v. Sewell, Ch. 4th May, [See 2 Cruise Dig. by Mr. Greenleaf, tit. 
 
 1791, MS. ; Purch. App. No. 11 ; Nouaille 31, Prescription, ch. 2, & notes.] 
 V. Greenwood, Tur. & Rus. 26. 
 
CH. X. § I.] TITLE TO TITHES. 553 
 
 under disability, but not to exceed in any case forty years, al- 
 though the ten years are not e;cpired. It allows no further time 
 for successive disabilities, and makes the bar of the tenant in 
 tail extend to all whom he might have barred. (/c) 
 
 7. An attempt by the writer during this session to shorten the 
 time *of limitation as against purchasers by legislation was so 
 far successful that the bill passed the House of Lords, and was 
 read a second time in the House of Cqmmons; but as it was 
 proposed by the government to introduce in committee in the 
 Commons amendments which, in the opinion of the writer, would 
 have rendered the bill valueless, he preferred to let it drop. A 
 copy of it will be found in the appendix. A summary of the 
 acts just passed for enabling parties and purchasers to obtain an 
 indefeasible title, will be found in chapter 12. 
 
 8. 'With respect to a title to tithes as an existing lay property, 
 the foundation of it must be a grant frotn the crown after the 
 dissolution of the monasteries, but it is not necessary to deduce 
 the title from that period ; the title following the grant may com- 
 mence at the same period as the title to the estate out of which 
 they issue would have done.(Z) Two modern acts facilitated the 
 extinguishment of lay tithes, by enabling even a tenant for life 
 td merge them, which before could not be accomplished, although 
 the fee of both the estate and tithes was vested in the same per- 
 son ; (m) in course of time this will make the title to the estate 
 the title to the tithes also ; but still it will be necessary to resort 
 to the grant from the crown ; at present, however, though the 
 tithes should be extinguished under the acts, the early title to 
 them must be produced. 
 
 9. The title to an estate tithe free, independently of the above 
 acts, depends as a matter of fact upon rules tvhich are accurately 
 laid down in our text books on that subject. 
 
 10. Where there is a modus, much of the fortaer difficulty has 
 been removed by the provisions of the 2 & 3 Will. 4, c. 71. (w) 
 
 11. The old statutes of limitation did not apply to advowsons ; 
 but the new act provides, that one hundred years shall be the 
 
 (jfc) Sugd. Stat. ; inf. ch. 12. (m) 1 & 2 Vict. c. 64 ; 2 & 3 Vict. c. 62 
 
 {I) Pickering v. Ld. Shelborne, 1 Craw. 5 & 6 Vict. c. 54, s. 7. 
 & Dix, 254. (n) Sug. Stat. inf. ch. 12. 
 
 [367] 
 
654 lessor's title. [ch. x. § i. 
 
 longest time allowed for a claim. (o) An abstract of title there- 
 fore to an advowson should not be.for a less period, and it should 
 be accompanied with a list of the presentations, so as to show 
 that the enjoyment has gone along with the title. 
 
 12. After a great difference of opinion, it was decided that a 
 purchaser of a leasehold estate may insist upon the production 
 of the lessor's title.(l) The general point was decided in equity 
 in * favor of the purchaser's right in the case of Purvis v. Rayer,(p) 
 and now at law (q) the seller cannot recover if he have not the 
 lessor's title. As a general rule it is therefore now firmly settled, 
 both at law and in equity, that a seller of a leasehold cannot 
 make a good title unless he can produce the lessor's title ; (r) but 
 of course that title could be required only dow^n to the period of 
 granting the lease, and if the lease was granted sixty years 'ago, 
 the freehold title could not be required. 
 
 13. If a purchaser had notice, at the time he entered into the 
 contract of the vendor's inability to produce the lessor's title, he 
 would not afterwards be allowed to insist upon its production. 
 Whenever, therefore, a vendor of a leasehold estate has not an 
 abstract of the lessor's title, this circumstance should be men- 
 tioned in the particulars. And he should make the statement 
 clear and free from ambiguity, or he will not be protected. (s) 
 
 (0) 3 & 4 Will. 4, c. 27, s. 30, 31, 32, (q) George v. Pritchard, 1 Moo. & Ry. 
 33; post, ch. 12. 417; Souter u. Drake, 5 B. & Ad. 992; 
 
 (p) 28 July, 1821, MS.; 9 Pri. 488; Hall u. Betty, 4 Man. & Gra.410; 5 Sco. 
 
 Clive V. Beaumont, 1 De G. & Sm. 397 ; N. E. 508. 
 
 Gaston w. Frankum, 2 De G. & Sm. 561 ; (r) Souter v. Drake, 5 B. & Ad. 992. 
 
 Scargill v. Harry, 14 Jur, 847. (s) Sup. ch. 9, s. 1. 
 
 (1) The right of an intended lessee, who is a purchaser pro tanto to the production 
 of the lessor's title, depends upon Keech v. Hall, Doug. 21 ; Purvis v. Rayer, MS. 9 
 Pri. 488 (see Roswel v. Vaughan, Cro. Jac. 196 ; Lysney v. Selby, 2 Ld. Ray. 118) ; 
 Gwillim V. Stone, 3 Taunt. 433, which is distinguishable; Temple v. Brown; Rooper 
 V. Coombes, 6 B. & C. 534 ; Stone v. Gwillim, 3 Taunt. 436 ; Gwillim v. Stone, 14 
 Ves. 128; MulhoUand v. Corp. of Belfast, 9 Ir. Ch. Rep. 303. A lessor cannot enforce 
 the contract in equity without producing the original lessor's title ; Fildes v. Hooker, 
 2 Mer. 424; Ld. Ossulston v. Deverell, 26 May, 1818, MS. ; Simpson v. Sadd, 3 Eq. 
 R. 263; 4 De 6., M. & G. 665; "White v. Foljambe, 11 Ves. 337; Deverell v. Lord 
 Bolton, 18 Ves. 505; and see Radcliffe v. Warrington, 12 Ves. 326; Ly. Saltoun v. 
 Phillips, sittings after T. T. 1813, cor. Ld. EUenborough, where a purchaser recovered 
 his deposit, because the seller claimed his lease subject to Ld. Grosvenor's incum- 
 brances, and had stated that the lease was only subject to the ground rent, although he 
 had not undertaken to produce the landlord's title. See 9 Pri. 515. 
 
 ' [368] 
 
CH. X. § I.] lessor's title. 656 
 
 Of course, if a vendor of a leasehold estate be unable to procure 
 the lessor's title, equity cannot assist the purchaser unless he will 
 dispense with the production of the title to the freehold. Where 
 a man and his agent were present at a sale by auction, and had 
 the particulars of sale in their possession which showed the 
 seller's interest, the principal who bought after the sale was not 
 allowed to say that he was ignorant of the seller's interest.(<) 
 And notice at an auction from the particulars, followed by a 
 treaty with the auctioneer upon the footing of the conditions, 
 although they are not referred to by the agreement, may bind 
 the purchaser, as notice that he is not to have the lessor's title.(M) 
 But a purchase after an auction not on the basis of the condi- 
 tions will not bind the purchaser by the conditions if they are 
 not referred to by the agreement.(a;) • 
 
 14. And if the purchaser agree to accept a proper assignment, 
 without requiring the lessor's title, he will at law be compelled 
 to pay the price, although the lessor's title prove to be bad. (2/) 
 
 *15. But although the seller is absolved from the obligation 
 to produce the lessor's title, yet the purchaser is not bound by 
 the contract even at law, if he can show aliunde that the title is 
 not a good one ; (z) or if it appears defective on the face of the 
 abstract, (a) 
 
 16. If the sale is of a share and the purchaser holds apother 
 share under the same lease, he cannot require the lessor's title or 
 object to an imperfection in the lease.(&) 
 
 17. A purchaser of a lease held under a bishop, cannot call for 
 the lessor's title, (c) 
 
 18. In regard to the root of a title to a leasehold, where the 
 freehold is to be produced, unless there were reason to suppose 
 that the lessor was only tenant for life, of course an earlier title 
 could not be required than if the freehold itself were sold, nor in 
 
 (t) Cowley u. Watts, 17 Jiir. 172. title. Darlington 0. Hamilton, 1 Kay, 
 
 (m) Ogilvie V. Foljambe, 3 Mer. 53. 550 ; Drysdale v. Mace, 5 De G., M. & G. 
 
 (x) Cowley w. Watts, «Jj SM/). 103; [Musgrave w. JVEcCuUagh, 11 Irish 
 
 (y) Spratt v. Jeffery, 10 B. & C. 249. Ch. E. 496 ; Hume v. Pocock, L. R. 1 Eq. 
 
 \z) Shepherd v. Keatley, 1 Crc, Me. & 423 ; L. R. 1 Ch. Ap. 379.] 
 
 Eos. 117; supra, p. 17, but see Hume o. (a) Sellick v. Trevor, 11 M. & W. 722. 
 
 Bentley, 5 De G. & Sm. 520, where the (4) Phipps v. Child, 3 Drew. 709. 
 
 purchaser is bound not to inquire into the (c) Fane v. Spencer, 2 Mer. 430. 
 
 [369] 
 
556 TITLE TO RENEWABLE LEASEHOLDS. [CH. X. § I. 
 
 most cases could so early a title be called for.(c^) In Purvis v. 
 Ilayer,(d) the chief baron considered, that the circumstance that 
 forty-seven years had elapsed since the term was granted, did 
 not make the title good ; but a leasehold title, commencing forty- 
 seven years ago, would, in most cases, be deemed satisfactory, 
 and in every case would readily admit of slight evidence in sup- 
 port of it. 
 
 19. In the. case of renewable leaseholds, where every lease is 
 stated to be granted in consideration of the surrender of the 
 former lease, and by means of this reference the chain of title is 
 kept up, the purchaser has in the view of equity notice of the 
 first lease, and of all the later ones ; and if in any of these leases 
 the lessee is described as devisee under a will, or there is' any- 
 thing to lead the mind to* a conclusion that the lessee is not 
 absolutely entitled, the purchaser will be liable to the same 
 equity as the lessee was subject to.(e)(l) By the 6 & 7 Will. 4, 
 c. 20, leases renewed by ecclesiastical persons after the act are to 
 contain certain recitals as to the terms of the preceding lease, 
 and such recitals are, so far as relates to the validity of the lease 
 so to be granted, to be deemed conclusive evidence of the truth 
 of the matter recited.(/) 
 
 20. The root of the title should in such cases be carried back 
 to a considerable period where the estate has been the subject 
 of settlements. Attested copies of the surrendered leases can 
 in general be obtained, and of course the settlements and other 
 family deeds, which * are the title deeds to such an estate, are, 
 as in other cases, either in the possession or power of the seller. 
 The root of the title must depend upon the transactions in which 
 the leases have been included. Where there have been repeated 
 
 (fli) [On a sale of leaseholds without B. 213; 39 L. J. Q. B. 90; 18 W. R. 
 any restriction as to title, the vendor is 680.] 
 bound to produce the lease, which is the " (d) 9 Pri. 488. 
 
 root of title, though it is more than sixty (e) Coppiu v. Fernyhough, 2 Bro. C. C. 
 years old. Freud v. Buckley, L. E. 5 Q. 291 ; Hodgkinson v. Cooper, 9 Beav. 304. 
 
 (/) S. 2, 3; sees. 9. 
 
 ( 1 ) A bill, for which the writer was responsible, contained a material alteration of 
 the law in this respect in favor of purchasers, which will be stated in a subsequent chap- 
 ter. The bilj passed the Lords, and reached a committee in the House of Commons, 
 where the clause was carried upon a, division, but the continued opposition to it, and 
 other circumstances, compelled the writer to let the hill drop. 
 
 [370] 
 
CH. X. § I.] TITLE TO LEASEHOLDS : COVENANTS. 657 
 
 sales, a short period would be sufficient, but where the estate has 
 remained in the same family, and the renewals have been in- 
 cluded in settlements, or where there is a long period between a 
 former lease and the one sold, and it is not shown what was 
 done during that period, it may be necessary to produce just as 
 ancient a title as if the freehold were sold.(g') In purchasing a 
 renewable leasehold, where the renewal is dependent on the per- 
 formance of the covenants by the lessee, great care should be 
 taken to ascertain |:hat there has been no breach which would 
 destroy the covenant to renew.(A) 
 
 21. If the purchaser of a lease is not entitled to the lessor's 
 title, he of course can only require a regular title to the lease- 
 hold interest from the time the lease was granted. If the lease 
 be an ancient one, it is not necessary to do more than make it 
 the root of title, and then commence the derivative title with an 
 assignment on a sale or mortgage within a reasonable period, 
 e. g. fifty years. Attendant terms, although a leasehold interest, 
 were treated as part of the inheritance ; the creation of them 
 should be shown, and so should the dealing with them in later 
 times, and their actual position at the time the late act put an 
 end to them.(t) The loss of mesne assignments is not often of 
 serious consequence.(y) If the covenants in the lease have not 
 been performed modo et formd, yet if they have been performed 
 under the direction of the lessor, and he has by his acts pre- 
 cluded himself from reentering, a purchaser will be compelled to 
 accept the title.(A;) So a receipt of rent with knowledge of a 
 breach of covenant may be a good defence against the lessor, 
 and the title to the lease would be deemed valid.(/) Where a 
 
 (j) 3 & 4 Will. 4, c. 27, s. 24, 25, 26, [Where it was stipulated that the produc- 
 
 27, post, ch. 12 ; Hodgkinson v. Cooper, 9 tion of the last receipt for rent should be 
 
 Beav. 304. conclusive evidence that all the covenants 
 
 (A) Grey v. Friar, 4 H. L. Cas. 621 ; had been performed, the purchaser was 
 
 Job V. Banister, 28 L. T. 242. precluded from objecting that the lease 
 
 (i) 8 & ft Vict. c. 112. had been forfeited by reason of dilapida- 
 
 (j) Earl V. Baxter, 2 Bla. 1228, 11 Ves. tions, which existed at the date of the con- 
 
 350, inf. ch. 11 ; Moriarty v. Grey, 12 Ir. tract. Bull v. Hutchins, 32 Beav. 615. 
 
 C. L. Kep. 129 ; see 23 & 24 Vict. t. 38, As to evidence of covenants, &c., having 
 
 s. 6. been performed, see, further, Howell o. 
 
 {!c) Hume v. Bentley, 5 De G. & Sm. Kightley, 21 Beav. 331 ; Pegler v. White, 
 
 520. 10 Jur. N. S. 330 ; 1 Dart V. & P. (4th 
 
 (Z) Bridges v. Longman, 24 Beav. 27. Eng. ed.) 154, 155.] 
 
558 COVENANT TO INSURE. [CH. X. § I. 
 
 breach has been made in a covenant to insure, and there is a 
 power of reentry, the title is bad, although the insurance office 
 has since received the premium and the policy is on foot.(m) 
 And where a leasehold house was sold by the court, and accord- 
 ing to a covenant in the lease, it was insured by the vendors, but 
 the insurance was allowed to ^rop at Christmas, 1853, and the 
 purchase was to have been completed on that day, although it 
 was not, owing to the neglect of the vendors, the purchaser was 
 discharged from his contract, for the lessor might enter for the 
 forfeiture, and the sellers were bound to keep the * property safe 
 until the completion of the contract after their default at the day 
 appointed ; notwithstanding a condition that the receipt for rent 
 up to Michaelmas, 1853, should be evidence of the fulfilment of 
 all covenants in the lease, (w) 
 
 22. The legislature has now given to courts of equity power 
 to relieve, upon such terms as to the court should seem fit, against 
 a forfeiture for a breach of a covenant or condition to insure 
 against loss, or damage by fire where no loss or damage by fire 
 has happened, and the breach has, in the opinion of the court, 
 been committed through accident, or mistake, or otherwise, with- 
 out fraud or gross negligence, and there is an insurance on foot 
 at the time of the application to the court in conformity with the 
 covenant to insure.(o) And this power has been conferred on 
 courts of law, together with power to relieve against a forfeiture 
 for nonpayment of rent{p) 
 
 23. And where, on a bond fide purchase, after the passing of 
 the act, 13th of August, 1859, of a leasehold interest under a 
 lease containing a covenant on the part of the lessee to insure 
 against loss or damage by fire, the purchaser is furnished with 
 the written receipt of the person entitled to receive the rent, or 
 his agent for the last payment of rent accrued due before the 
 completion of the purchase, and there is subsisting at the time 
 of the completion of the purchase an insurance' in conformity 
 with the covenantj the purchaser, or any person claiming under 
 
 (m) Wilson v. Wilson, 14 C. B. 616 ; 2 (o) 22 & 23 Vict. c. 35, s. 4 ; and see s. 
 
 Com. L. R. 818; Palmer v. Goren, 25 L. 5, 6, 7, 9 ; Page v. Bennett. 6 Jur. N. S. 
 
 J. N. S. 841. 419 ; Sugd. Stat. (2d edit.) 312. 
 
 (n) Palmer v. Goren, 25 L. J. N. S. {p) 23 & 24 Vict. u. 126, s. 1, 2; see 23 
 
 841. & 24 Vict. c. 128. 
 
 [371] 
 
CH. X. § I.] EQUITABLE TITLE. 569 
 
 him, will not be subject to any liability by way of forfeiture, 
 or damages, or otherwise, in respect of any breach of the cove- 
 nant' committed at any time before the completion of the pur- 
 chase, of which the purchaser had not notice before the comple- 
 tion of the purchase ; but this provision does not take away any 
 remedy which the lessor or his representatives may have against 
 the lessee or his representatives for breach of covenant.(g) 
 
 24. Although a purchaser of a lease buys with full notice that 
 a title cannot be made without the consent of the lessor, yet it 
 lies on the seller, and not on the purchaser, to obtain the con- 
 sent.(l) It cannot be inferred that the seller only agreed to part 
 with his interest in the estate as far as he was able to do so.(r) 
 A title for ' a limited period, with a covenant for perpetual re- 
 newal, will not be sufficient where the underlease sold is for a 
 longer term absolute ; (s) but a good title will be shown if it be 
 shown that the lessor will consent to an assignment.(i) 
 
 25. It is seldom that a purchaser undertakes to accept an 
 equitable estate, and where he does not it is indifferent to him 
 whether the seller has the legal or equitable estate, for under a 
 common contract he will be entitled to the legal estate. It is 
 possible that a seller may have a title which, by lapse of time, 
 cannot be disturbed in equity,(M) and yet he may not be able to 
 make a good title, for a legal right may remain unbarred. But 
 if even a party sold, stipulating that the purchaser should not 
 call for the legal estate, that would make no difference as to the 
 root of the title, for it would be necessary to show the beneficial 
 or equitable title to the estate, and that the legal estate, although 
 outstanding, could not be used adversely to the purchaser. 
 
 (?) 22 & 23 Vict. c. 35, s. 9. (s) Leathern v. Allen, 1 Ir. C. E. 683. 
 
 (r) Lloyd v. Crispe, 5 Taunt. 249 ; Ma- (t) Carrodus v. Sharp, 20 Bear. 56. 
 son V. Corder, 2 Mars. 332 ; 7 Taunt. 9 ; (m) Cholmondeley v. Clinton, Tur. & 
 
 Wilkinson v. Lloyd, 7 Q. B. 27 ; Smith v. Rus. 107 ; 3 & 4 Will. 4, c. 27, infra, ch. 
 
 Capron, 7 Hare, 185; Stray v. Russell, 5 12; Malone «. O'Connor, 9 Ir. Ch. Rep. 
 
 Jur. N. S. 1295 ; see Davis v. Nisbett, 10 459. 
 C. B. N. S. 752. 
 
 (1) In Ireland, with reference to the sub-letting acts, a purchaser of a leasehold, to 
 an assignment of which the lessor's consent was necessary, bat which had not been ob- 
 tained, was refused a specific performance subject to the condition, although he was let 
 into possession, and had paid the price, part of which had been enforced by an action. 
 Meara v. Meara, 8 Ir. Ch. Rep. 37. 
 
 . . [3T2] 
 
560 EQUITABLE TITLE. [CH. X. § I. 
 
 26. If the estate was copyhold and has been enfranchised, the 
 lord's title to the freehold will be required as well as the copy- 
 holder's title before its extinguishment.{x) The copyhold title, 
 whilst the transaction»is a recent one, is still necessary, and the 
 freehold title is just as necessary as if the purchase had been 
 made of the lord.(l) But where the purchase was of a copyhold 
 when it should become freehold by enfranchisement to be ob- 
 tained by the seller, it was held that the seller, after enfranchise- 
 ment, was not bound to produce the lord's title to the manor, for 
 the acts then passed made a perfect and binding enfranchisement, 
 although the lord should have no title to the manor at the time 
 he made it.(y) And, having regard to the provisions of the acts, 
 it was also held that the purchaser could not object to the min- 
 erals having been reserved to the lord. 
 
 27. If the estate has been taken in exchange, the title to the 
 estate sold, and also the title to the land given in exchange, must 
 be produced. (z) 
 
 28. Lands allotted under inclosure acts become liable to the 
 uses * of the estates in respect of which they were allotted, in- 
 cluding, of course, any outstanding terms,(a) and it is, therefore, 
 upon the sale of such lands necessary to furnish an abstract of 
 the title to the original estates.(6) 
 
 29. So upon exchanges under inclosure acts, for the title re- 
 mains the same, although it applies to the new and not to the old 
 estate. It is generally expressly provided by inclosure acts, that 
 the estates taken in exchange shall become liable to the uses of 
 the estates given in exchange, and there is no pretence, although 
 
 (x) 1 Pres. Abst. 205. of entry in case of eviction ; and see now, 
 
 {y) Kerr !). Pawson, 25 Beav. 394; 27 as to sales and exchanges of charity ea- 
 
 L. J. N. S. 594 ; and see now 21 & 22 tates, 16 & 17 Vict. c. 137, s. 24, 26 ; 18 & 
 
 Vict. s. 94. 19 Vict. c. 124, s. 32, 34, 35; as to ex- 
 
 (z) Bastard's case, 4 Hep. 121, where change for tithes, see 6 & 7 Will. 4, c. 
 
 the operation of common law exchanges, 71, s. 29, 30, 31 ; 2 & 3 Vict. c. 62, s. 19, 
 
 which have long been discontinued, is 20,21. 
 
 stated ; see 8 & 9 Vict. c. 106, s. 4 ; 1 & 2 (a) Garrard v. Tuck, 8 C. B. 231. 
 
 Geo. 4, c. 92, authorizes exchanges of (b) 1 Pres. Abst. 87, 161. 
 
 charity estates; but see s. 9, for the right 
 
 (1) A purchaser of a copyhold now upon admittance may compel an enfranchise- 
 ment or the lord may enforce it against him. The acts provide as to the lord's title 
 &c. ; 15 & 16 Vict. c. 51 ; 16 & 17 Vict. c. 57 ; 21 & 22 Vict. s. 94. 
 
 [373] 
 
CH. X. § I.] TITLES UNDER EXCHANGE OE ALLOTMENT. 661 
 
 negative words are not introduced, for contending that the former 
 title of the estate taken in exchange any longer affects it. 
 
 30. The general inelosure act contains no stipulation expressly 
 making the new estate liable to the uses of the old one ; (c) but 
 still the operation of the law would clearly be the same, and 
 there is no reason why in this, any more than in the other case, 
 the estates should remain liable to the uses to which they were 
 originally subject. So that in every such case the title of the 
 party holding such estate is the only one which relates to it. 
 
 31. The power to exchange lands in common fields is expressly 
 guarded by clauses changing the uses of the lands, and taking 
 away any right of eviction after the exchange.(rf) 
 
 32. Where an allotment is made generally in respect of all 
 the tenant's lands, it is necessary to make out a title to them all ; 
 and in some cases, where the original estates are held under con- 
 flicting settlements, it may be found impossible to do so.(e) 
 
 33. Where an estate was sold without any notice that it was 
 recently allotted under an inelosure act, and it appeared that the 
 commissioners had not made their award, and the«act contained 
 no clause authorizing a sale before the award, Lord Ellen borough 
 held that the purchaser was warranted in refusing the title.(/) 
 But if the purchaser is at the time aware that the estate is in a 
 progressive state of inelosure, and there is a clause authorizing a 
 sale before the award, and there is no ground to suppose that the 
 commissioners will vary the allotments, assuming their power to 
 do so, the purchaser will be compelled to take the title, although 
 the award is not executed ; (g) for a purchaser purchasing, as in 
 this instance, with full * notice of all the circumstances, must 
 take subject to the variation, as it was inherent in the very na- 
 ture of the property. Lord Eldon relied very much on the state- 
 
 (c) 41 Geo. 3, c. 109 ; see 3 & 4 Will, ditional powers, to which the attention of 
 4, c. 87, for remedying defects for want the practitioner should be directed ; and 
 of enrolment of awards; Casamajor i;. see 17 & 18 Vict. t. 97 ; 20 & 21 Vict. c. 
 Strode, 2 My. & Ke. 706. 31. 
 
 (d) 4 & 5 Will. 4, c. 30, s. 24, 25 ; for (c) King v. Moody, 2 Sim. & Stu. 579 ; 
 powers t» spiritual persons to exchange, Major v. Ward, 5 Hare, 598. 
 
 55 Geo. 3, c. 147 ; 56 Geo. 3, c. 52 ; 1 (/) Lowndes v. Bray, Sitt. after T. T. 
 
 Geo. 4, c. 6 ; 6 Geo. 4, c. 8; see 15 & 16 1810; Cane v. Baldwin, 1 Star. 65. 
 
 Vict. c. 79, which refers to the prior acts [g] Kingsley v. Toung, 17 Ves. 468 ; 
 
 for amending the acts for the inelosure, ex- 18 Ves. 207. 
 change, &c., of land, and gives many ad- 
 
 VOL. I. 36 [.374] 
 
562 
 
 TITLE BEFORE AWAKD. [CH. X. § I. 
 
 ment in the particulars, that the estate was in a progressive state 
 of inclosure. In one case, a learned judge, without deciding 
 whether an exchange upon which the title depended was valid 
 or not, considered that the conditions of sale referring to the ex'- 
 change brought pointedly and distinctly under the observation of 
 the purchaser the nature of the exchange ; and as he was an ex- 
 perienced and able member of the legal profession, he was pre- 
 cluded from objecting to the title upon this ground (h) The 
 case, however, was not decided upon this view. A purchaser 
 without notice cannot be compelled to take an estate subject to 
 regulations as to fences, planting, &c., under an inclosure act.{i) 
 
 34. But care must be taken in these cases to ascertain that 
 the power of sale does carry the legal estate before the award. (A) 
 Where the estate, in respect of which the allotment is made, is 
 itself conveyed, of course it carries the right to the allotment with 
 it, and it requires no special clause in the act to give legal valid- 
 ity to such a conveyance. This appears to have been the point 
 decided in Doe v. Willis,(?) which seems to have been misunder- 
 stood, and isisaid to have been disapproved of and overruled by 
 the master of the rolls in Mortlock v. Kentish. (m) But this is 
 probably an erroneous statement. 
 
 35. A provision that the lands to be allotted and awarded, im- 
 mediately after such allotments were made, should inUre to the 
 persons to whom they were allotted, who should thenceforth 
 stand seised thereof to the uses of the land in lieu of which 
 allotments were made, was held to give the legal estate imme- 
 diately after the allotment and before the award, so as to enable 
 the sale and conveyance of it.(M) 
 
 36. In Kingsley v. Young, already referred to, it was not 
 doubted that a clause authorizing a mortgage, sale, or demise of 
 any allotment before the execution of the award, which was to 
 be effectual in the law, passed the legal estate before the award. 
 And this was admitted to be law in the later case of Farrer v. 
 Billing,(o) in the king's bench. In that case, however, a pow^r 
 
 (h) Minet v. Leman, 7 De G., M. & G. Ellis v. Arnison, 5 B. & Aid. 47 ; Doe v. 
 340, 352 ; 20 Beav. 269. Neeld, 3 Man. & Gia. 271. 
 
 (i) Larkin «. Ld. Eosse, 10 Ir. Eq. E. (Ij 5 Bing. 441. 
 70. (m) 26tli July, 1833, 5 Ad. & El. 670. 
 
 (k) Farrer v. Billing, 2 B. & Aid. 171 ; (n) Doe v. Saunders, 5 Ad. & El. 664. 
 
 (o) 2B. &Ald. 171. 
 
CH. X. § I.] TITLE BEFORE AWARD. 563 
 
 to sell before the execution of the award was held, upon the ex- 
 pressions in the act, and with reference to the provisions in the 
 general inclosure act,(^) not to authorize the conveyance of the 
 legal estate before the award. 
 
 *37. In purchasing an allotment under an inclosure act, it 
 should of course be ascertained that the allotment was author- 
 ized by the act ; (q) and if it be taken in exchange, that the power 
 was pursued, for the commissioners are not at liberty, although 
 they have frequently assumed the power, to throw the old inclos- 
 ures intended to be exchanged into the general mass, and then to 
 make allotments for the common rights and old inclosures with- 
 out distinction. (r) The exchanges must be distinctly shown to 
 be such on the face of the award. (s) And the commissioners 
 cannot in making exchanges of freehold lands which are subject 
 to heriots a»id reliefs make the allotted lands subject to them ; (t) 
 but they may exchange gavelkind for common socage lands, al- 
 though in different counties.(M) It ought to require a clear con- 
 dition to compel a purchaser to take an infirm title under an 
 exchange.(a;) It should be kept in view that where lands, com- 
 mons of a manor, are allotted to the copyholders, they do not 
 become copyholds, but remain freehold, unless by express enact- 
 ment.,(«/) or irresistible conclusion from the provisions of the 
 act.(z) 
 
 38. If a purchaser be let into possession of an allotment be- 
 fore the award, and do not complete his purchase, but pays in- 
 stalments of the purchase money and interest on the balance 
 within twenty years, the seller may turn him out by ejectment, 
 although he has been twenty years in possession, and he cannot 
 raise the objection that no award has been executed.(a) 
 
 ip) 41 Geo. 3, c. 109, s. 16 ; 1 & 2 Geo. (m) 8 & 9 Vict. c. 118, s. 147 ; Minet v. 
 
 4, c. 23 ; and see 3 & 4 Will. 4, c. 87, as to Leman, 20 Bear. 269 ; 3 Eq. R. 502, 783 ; 
 
 past awards. 7 De G., M. & G. 340. 
 
 (q) Casamajor v. Strode, 2 My. & Ke. (x) Minet v. Leman, 3 Eq. E. 790 ; 20 
 
 706 ; 8 & 9 Vict. c. 118, s. 105 ; 11 & 12 Beav. 269 ; see 24 L. J. N. S. 553, n. 
 
 Vict. c. 99. iy) Doe v. Davidson, 2 Mail. & Sel. 
 
 (r) Wingfield v. Tharp, 10 B. & C. 785. 175. 
 
 (s) Cox V. King, 3 Bing. N. C. 795; (z) Poohin u. Duncombe, 1 H. & N. 
 
 see as to exchanges. Doe v. Neeld, 3 Man. 842. 
 
 & Gra. 271 ; see, further. Doe v. Spooner, (a) Doe v. Edgar, 2 Bing. N. C. 498 ; 
 
 2 Ex. 752, as to exchanges and partitions. Doe v. Hellatd, 9 B. & C. 789 ; post, ch. 
 
 (t) Mayor, &c. of Basingstoke v. Ld. 12. 
 Bolton, 3 Drew. 50. 
 
 [375] 
 
664 TITLE TO VAEIOUS PROPERTIES. [CH. X. § I 
 
 39. Where shortly after an inclosure bill the owner of certain 
 houses and gardens sold them by auction by that description, 
 without any mention of the act, or of any right of common or 
 of allotment, it was held that the purchaser was not entitled to 
 the allotment.(6) 
 
 40. The title to strips of land next highways must depend on 
 the title to the adjoining land of whatever tenure it be, to which 
 by law in general they belong ; (c) or if they are part of the 
 wastes of a manor,(rf) the title should be made out to them as 
 such. 
 
 *41. Encroachments must depend on adverse possession, and 
 they will descend as a fee simple, but encroachments by a ten- 
 ant inure to the benefit of the lessor, subject to the tenancy. (e) 
 
 42. The title to easements must depend on grants in existence, 
 or to b6 presumed from enjoyment, or upon the ne<»r statute of 
 iimitations.(/) 
 
 43. The title to a pew as appurtenant to an ancient messuage 
 varies, it is said, in each particular place. It may be annexed 
 to a house, either by a faculty or prescription,' and from long 
 uninterrupted usage a faculty may be presumed.(g') To land 
 tax, if sold separately, or where the estate is sold as discharged 
 from it, a title must be shown under the land tax redemption 
 act.(A) 
 
 44. A purchaser of shares in a mining company cannot require 
 a title to the mines themselves as if the sale were of so much 
 
 (6) Fife V. Clayton, 15 Ves. 546 ; 1 C. approre. Earl of Lisburne v. Davies, L. 
 
 Coo. 353. E. 1 C. P. 259. la the absence of an ex- 
 
 (c) Steel V. Prickett, 2 Star. 463 ; Doe press stipulation to the contrary, there is 
 
 V. Pearsey, 7 B. & C. 304; Scoones u. In equity an implied agreement that the 
 
 Morrell, 1 Beav. 251 ; Kingsmill v. Mil- tenant is to hold any encroachment upon 
 
 lard, 11 Ex. 313. the same terms as his original lease. 
 
 {d) Grove v. West, 7 Taunt. 39 ; Dendy White v. Wakley, 4 Jur. N. S. 988.] 
 V. Simpson, 18 C. B. 831; Simpson v. (/) Infra, ch. 12; Barker u. Eichard- 
 
 Dendy, 8 C. B. 433. son, 4 B. & Ad. 579 ; Moore v. Eawson, 3 
 
 (e) Andrews v. Hailes, 2 Q. B. 349; B. & C. 332; Sutton u. Ld. Montfort, 4 
 
 Doe V. Tidbury, 14 0. B. 319 ; Kingsmill Sim. 559. 
 
 V. Millard, 11 Ex. 313. [And it is not {g) GrifSth v. Matthews, 5 T. Eep. 
 necessary that the encroachment should 296; Price u. Littlewood, 3 Ca. 288; Pep- 
 be contiguous to the laud held by the ten- per v. Barnard, 7 Jur. 1 128. 
 ant ; but only that it should be in such (A) 42 Geo. 3, c. 116 ; sup. ch. 8, s. 3, pi. 
 proximity as to lead to the presumption 32 ; 16 & 17 Vict. c. 74 ; 19 & 20 Vict. u. 
 that his position as tenant enabled him to 80, ». 3. 
 
 [376] 
 
CH. X. § I.] RAILWAY, ETC. SHARES. ' 565 
 
 land, but he is entitled to reasonable evidence of the seller's title ; 
 it should at least be shown that there is a mine, and what was 
 the origin of the seller's title, and what are the rules by which 
 the validity of a transfer is to be ascertained. (t)(l) 
 
 45. In the case of railway shares, a very limited inquiry as to 
 title would, of course, be sufficient.(A) The seller should take 
 care that his transfer is registered, so as to secure him against 
 future calls, although a purchaser will be liable even at law to 
 indemnify the seller whilst his ownership continues under an 
 unregistered transfer.(/) Until the seller has paid up all calls on 
 his shares, the company may refuse to register his transfer.(m) 
 This in general is made a condition. But if, although calls are 
 in arrear, a transfer is made and the purchaser is acknowledged 
 by the company as a shareholder, he cannot be compelled to pay 
 the arrears.(w) The purchaser will, of course, be boutld by the 
 previous acts of the vendor.(o) 
 
 * 46. The right to preference shares as a first charge on the 
 profits until all the arrears from time to time are paid, is now 
 established, although, of course, the right may be qualified by 
 the actual contract,(p) or may be regulated by parliament. 
 
 47. A purchaser of railway shares should not accept a transfer 
 which has been executed in blank, although such is the practice 
 on the stock exchange. A transfer with blanks for the numbers 
 of shares and the name of the purchaser is void, and if a fraud 
 has been perpetrated, the owner might recover his shares from 
 
 (i) Curling v. Flight, 6 Hare, '49; 2 k Bartlett, 17 C. B. 440; 18 C. B. 845; 
 
 rhil. 613. [Walker's ease, L. R. 2 Eq. 564 ; Head's 
 
 ^ (k) Shaw V. Fisher, 2 De 6. & Sm. 15 ; case, L. R. 3 Eq. 84; White's case, L. R. 
 
 5 De G., M. & G. 596 ; Wynne v. Price, 3 Eq. 86.] 
 
 3 De G. & Sm. 310; 13 Jur. 295; Cope- {m) The Queen u. Wing, 17 Q. B. 645. 
 
 land V. North East. By. Co. 6 E. & B. (n) Watson v. Eales, 23'Beav. 294. 
 
 277, as to transfers not upon a, sale ; and (o) Ffooks v. South West. By. Co. 1 
 
 see The Qneen ». General Cemetery Co. Sm. & Gif. 142 ; Athenaeum Life Ass. Co. 
 
 6 E. & B. 415. V. Pooley, 3 De G. & J. 294. 
 
 (/) Wynne i>. Price, 3 De G. & Sm. {p) Crawford v. N. E. Ry. Co. 3 Jur. N. 
 
 310 ; Sayles v. Blane, 14 Q. B. 205 ; In re S. 1093 ; Henry v. Great Nor. Ry. Co. 4 
 
 North of England Banking Co. 4 De G. & K. & J,-l ; 1 De G. & J. 606; Coates v. 
 
 Sm. 256; 1 De G., M. & G. 576; Hum- Nott. W. W. Co. 30Beav. 86. 
 ble u. Langton, 7 M. & W. 517 ; Walker 
 
 (1) As to misrepresentations in regard to the mine, see Jennings a. Broughton, 5 
 , De G., M. & G. 126. 
 
 [377J 
 
566 RAILWAY, ETC. SHARES. CONDITIONS OF SALE. [CH. X. § I. 
 
 the innocent purchaser although he (the owner) may have been 
 guilty of negligence.(5) 
 
 48. As some security against frauds by public companies it has 
 been laid down that if a director of a company, one of the per- 
 sons who puts the shares forth into the world, deliberately adopts 
 a scheme of falsehood and fraud, the effect of which is that par- 
 ties buy the shares in consequence of the falsehood, an action is 
 maintainable against him.(r) 
 
 49. If one tenant in common sell his share to the other, he 
 must produce a title to the whole down to the severance, and 
 from that period of course the title to his own share only.(s) 
 
 50. It remains to observe that assignees of bankrupts stand 
 in the situation of ordinary vendors as to the liability of making 
 a good title. (<) 
 
 51. T'he members of a building society, whose land was 
 vested in trustees for them, and to whom the trustees conveyed 
 their several lots, were held bound, and so were purchasers from 
 them, to obtain an inspection of the original conveyance to the 
 trustees; and as that deed remained in the seller's power as an 
 equitable mortgagee, with a covenant to convey the legal estate to 
 him if required, both the allottees and the purchasers from them 
 were held liable to contribute to the payment of the moTtgage.(M) 
 
 51 a. In the above case it was held that a purchaser under 
 strict conditions of sale, cannot defend himself from any liability 
 to which he would have been subject had he bargained for a 
 good title. If by reason of such conditions he takes a bad title, 
 the -consequence falls on him; but he stands in the same posi- 
 tion as if the whole title had been produced to him. The court 
 observed .that it is assumed that the purchaser has had the ben- 
 efit in the reduced price which measures the amount of risk 
 which he incurs by his buying under those conditions *of sale. 
 Practically, however, incautious purchasers make no deduction 
 for unusual and oppressive conditions of sa\e.{x) 
 
 52. Every person who takes an assignment of a chose in ac- 
 
 (q) Tayler u. Gt. Ind. Pen. Ey. Co. 28 {t) White v. Foljambe, 11 Ves. 337 ; 18 
 
 L. J. N. S. 285 ; 4 De G. & J. 559. Ves. 519; M'Donald v. Hanson, 12 Ves. 
 
 (r) Bedford v. Bagshaw, 4 H. & N. 277. 
 
 538. (m) Peto V. Hammond, 8 Jur. N- S. 550. 
 
 (s) Morris w. Kearsley, 2 To. & Col. (x) See supra, p. 41, pi. 82, to which 
 
 139. this case should be added. 
 
 [378] 
 
CH. X. § I.J PURCHASE OF CHOSE IN ACTION : NOTICE. 
 
 667 
 
 Hon gives personal confidence that there is no lien upon it.(j/) 
 Upon the purchase of a chose in action, the practiee is to give 
 notice of the sale to the trustee, and equity would prefer a sub- 
 sequent purchaser who had given a proper notice to the trustee, 
 to a prior purchaser who had neglected to do so.{p^) The notice 
 should be either generally of the deed or the second charges 
 should be stated. (z) Actual notice is sufficient whether formal 
 or not, whether in writing or verbal, although a mere casual ob- 
 servation is not sufficient.(a) It would, however, be unwise not to 
 
 (y) Per Lord Thurlow, Davies v. Aus- 
 ten, 1 Ves. jr. 247 ; see Tourville v. Naish, 
 3 P. Wms. 307 ; 2 P. "Wms. 495 ; 15 Ves. 
 354; 2 Taunt. 415 ; Dearie v. Hall ; Love- 
 ridge V. Cooper, 3 Rus. 1 ; Foster v. Har- 
 greaves, 1 Ke. 261 ; Etty v. Bridges, 2 Yo. 
 & Col. 486 ; overruling Cooper v. Twy- 
 nam, 3 Rus. 60 ; Hulra v. Sandys, Yo. 
 602 ; M'Carthy v. Ld. Kingston, Dru. 439 ; 
 Cockell V. Taylor, 15 Beav. 103 ; Molloy 
 V. French, 13 Ir. Eq. R. 261 ; Brandon v. 
 Brandon, 7 De G., M. & G. 365 ; Athen- 
 seum Life Ass. Co. v. Pooley, 3 De G. & J. 
 294. As to notice to stakeholders, see 
 Buller V. Plunkett, 7 Jur. N. S. 873. 
 [Every man who takes an instrument, not 
 by the terras of it assignable, must take it 
 principally upon the credit of the party 
 from whom he receives it ; for it is always 
 liable to be defeated by equitable circum- 
 stances subsisting between the original 
 contracting parties ; the assignecbcing sub- 
 ject to the same equity as the assignor. 
 Per Parker C. J. in Willis v. Twombly, 
 ig Mass. 204, 206; Chamberlain v. Gor- 
 ham, 20 John. 144 ; Greene o. Darling, 5 
 Mason, 215 ; Murray v. Lylburn, 2 John. 
 Ch. 443; Norton «. Rose, 2 Wash. C. C. 
 223, 254 ; Kemp v. McPherson, 7 Harr. & 
 J. 320 ; M'Farlane v. Griffith, 4 Wash. C. 
 C. 585 ; Jordan v. Black, 2 Murph. 30 ; 
 Webster v. Wise, 1 Paige, 319; Oliver ». 
 Lowery, 2 Harr. (Del.) 467 ; Watkins u. 
 Worthington, 2 Bland, 509 ; Ord v. White, 
 2 Beav. 357 ; Harrison v. Marshall, 6 
 Porter, 65 ; Davis v. Austen, 3 Bro. C. C. 
 (Perkins's ed.) 178, 180, in note; Chitty 
 CoHtr. (10th Am.ed.) 138, 139, & in notes. 
 
 The above rule is generally understood to 
 mean the equity residing in the original 
 obligor, or debtor, and not a latent equity, 
 residing in some third person against the 
 assignor. Chancellor Kent in Murray v. 
 Lylburn, 2 John. Ch. 441, 443 ; Murray v. 
 Ballou, 1 John. Ch. 566. To subject the 
 assignee to such an equity he must have 
 express or constructive notice of it at the 
 time of the assignment. Livingston v. 
 Dean, 2 John. Ch. 479 ; Mayo v. Giles, 1 
 Mnnf. 533 ; Picket v. Morris, 2 Wash. C. 
 C. 255 ; Livingston v. Hubbs, 2 John. Ch. 
 312.] 
 
 (yi) [See Nuer v. Schenck, 3 Hill, 228. 
 Until notice of the assignment the rights 
 and interests of the debtor are in no way 
 affected by it. Loomis u.,Loomis, 26 Vt. 
 198 ; Parsons C. J. in Comstock v. Farnum, 
 2 Mass. 95. If in the moan time and before 
 such notice, the debtor pays the debt to 
 the assignor, or bis subsequent assignee, 
 he will be discharged. Jones v. Witter, 13 
 Mass. 304 ; Ward v. Morrison, 25 Vt. 593. 
 It is the notice of the assignment that 
 binds the debtor, and devolves on him an 
 equitable obligation in favor of the 
 assignee. Until the act' of notice takes 
 place, the assignment operates between 
 the assignor and assignee only. The 
 notice brings the debtor into the arrange- 
 ment. Parker C. J. in Jones v. Witter, 13 
 Mass. 304, 307 ; Crocker o. Whitney, 10 
 Mass. 316, 319 ; Mowry k. Todd, 12 Mass. 
 281 ; Morton J. in Parkhurste. Dickerson, 
 21 Pick. 310.] 
 
 (z) In re Bright's Trust, 21 Beav. 430. 
 
 (a) Browne ». Savngo, 4 Drew. 635 ; 5 
 
568 PUECHASE OF CHOSE IN ACTION : NOTICE. [CH. X. § I. 
 
 give a written notice. It is immaterial whether the notice was 
 given before or after the assignment, provided it was given pre- 
 viously to notice by the prior claimant.(l) This point' was ulti- 
 mately decided in the House of Lords, in a case where the legal 
 estate was vested in trustees by father and son to sell and pay 
 incumbrances, and then in trust for the father for life, and after- 
 wards for the son in fee, and the son in his father's lifetime first 
 granted annuities for lives and then made a mortgage in fee, and 
 the mortgagee having no notice of the annuities gave notice to 
 the trustees of his mortgage between four and five years after it 
 was executed, and his priority was established over the an- 
 nuitants. (6) Notice to the trustees aliunde would be bind- 
 ing.(f;) 
 
 53. It has been decided, after considerable difference of opin- 
 ion, (d) that in the case of a purchase and the subsequent bank- 
 ruptcy of the seller, the want of notice 4s fatal as against the 
 purchaser, as it leaves the property within the order and dispo- 
 sition of the bankrupt with the consent of the true owner.(e) 
 Laches may be equivalent to consent, * but where the owner has 
 no knowledge, or means of knowledge, of the bankrupt's inter- 
 est, his consent cannot be presumed ; as where an insolvent con- 
 
 Jur. N. S. 1020. [Special notice is not that he should concur in the arrangement, 
 
 necessary,; it is enough if the party to he Spring v. South Car. Ins. Co. 8 Wheat, 
 
 affected has such knowledge of facts and 268 i Chitty Contr. (lOth Am. ed.) 138, 
 
 circumstances as to induce a reasonable 139.] 
 
 belief of the fact of notice. Anderson o. (J) Foster w. Blackstone or Cockerell, 2 
 
 Van Alen, 12 John. 343; Parrls J. in CI. & Fin. 456; 9 Bligh N. S. 332 ; 1 My. 
 
 Hackett v. Martin, 8 Greenl. 77, 79 ; United & Ke. 297 ; Lee v. Hewlett, 2 K. & J. 531. 
 
 States B. Stnrges, 1 Paine, 525 ; Kellogg v. (c) In re Rawbone, 3 K. & J. 300. 
 
 Krauser, 14 Serg. &R. 137. It is sufficient (d) In re Atkinson, 2 De G., M. & Q. 
 
 if the debtor is fully informed of the exist- 140 ; Thompson v. Tomkins, 8 Jur. N. S. 
 
 enee of the assignment, though the assignee 185 ; In re Pole's Trusts, 2 Jur. N. S. 685 ; 
 
 does not exhibit the security, or offer other 3 Sm. & Gif. 325 ; nom. Ex parte Jlulme ; 
 
 evidence of the assignment, when it is de- see 1 Be G. & J. 142 ; Day v. Day, 23 
 
 manded of him for the proper satisfaction Beav. 391 ; 1 De G. & J. 144. 
 
 of the debtor. Bean y. Simpson, 16 Maine, (e) Bartlett v. Bartlett, 3 Sm. & Gif. 
 
 49 ; Davenport v. Woodbridge, 8 Greenl. 533 ; 1 De G. & J. 127; Day v. Day, lb. 
 
 1 7 ; Johnson v. Bloodgood, 1 John. Ch 144 ; Ex parte Bolton, lb. 163; Rickards 
 
 51. Though it is necessary that the debto v. Gledstanes, 3 Giff. 298 ; notice to solici- 
 
 should have notice, there is no necessity tor of trustees valid. 
 
 (1) As to the liability of a creator of a security upon receiving notice of an assign- 
 ment of it to furnish further information to the assignee, see Mangles v. Dixon, 3 H. 
 L. Cas. 702. 
 
 [379] 
 
CH. X. § I.] PURCHASE OF CHOSE IN ACTION : NOTICE. 569 
 
 cealed his title to a reversionary interest, and then became 
 bankrupt, and afterwards the reversion fell into possession, the 
 assignee under the insolvency was held entitled to it against the 
 assignee in the bankruptcy. (/) 
 
 54. Where there are several trustees, notice to one of them 
 may be sufficient to secure the purchaser's priority, as there may 
 be circumstances to presume that the trustee who had notice 
 communicated his knowledge to his cotrustees.(^) A better 
 reason is that a purchaser should inquire of every one of the 
 trustees, and, therefore, whilst the trustee having notice lives, an 
 inquiry of him would lead to the knowledge of the prior incum- 
 brance ; but this should not be relied upon, and the death of that 
 trustee would deprive the purchaser of the benefit of his knowl- 
 edge if he had not communicated it to his cotrustees. And this 
 distinction has been taken as to notice to one of several trus- 
 tees ; if the particular trustee becomes the assignee of the bene- 
 ficial interest, that notice is sufficient; it would be his interest to 
 inform any subsequent incumbrancer of his own charge ; but 
 still his death might remove that security. If a particular trus- 
 tee has also a beneficial interest, and assigns it so that he is the 
 assignor, notice to him, which of course he has of his own deed, 
 is not sufficient, for it would be his interest to conceal his in- 
 cumbrance.(A) Where one of several executors was himself the 
 purchaser from the cestui que trust, and afterwards died with- 
 out communicating his purchase to his coexecutor, a second 
 purchaser, who gave notice to the surviving executor, was 
 preferred ; (i) and previous inquiry is not necessary, {j) But 
 although the fund is in court in the name of the accountant- 
 general, notice to him is inoperative, for he is only the agent of 
 the court.(A;) 
 
 55. If due notice has been given to the trustees of an assign- 
 ment of a legacy, the assignee will not be affected by a stop 
 
 (/) In re Rawbone, 3 K. & J. 476. There is a mistake in the dates ; they do 
 
 (g) Smith v. Smith, 2 Cr. & Me. 231 ; 2 not agree with the priorities ordered; 
 
 Ke. 52, 53 ; Meux li. Bell, 1 Hare, 73 ; Willes v. Greenhill, 29 Beav. 376, 387. 
 
 Thompson v. Spiers, 13 Sim. 469 ; Ex (i) Timson v. Ramshottom, 2 Ke. 35 ; 
 
 ■parte Rogers, 8 De G., M. & G. 271 ; appeal compromised ; Martin v. Sedgwick, 
 
 Willes V. Greenhill, 7 Jur. N. S. 1134 j 31 9 Beav. 333. 
 
 L. J. N. S. 1. (j) S. C. 
 
 (h) Browne v. Savage,- 4 Drew. 635. [k) Warburton v. Hill, 1 Kay, 470. 
 
570 PURCHASE OF CHOSE IN ACTION : NOTICE. [CH. X. § I. 
 
 order obtained by a subsequent incumbrancer, upon the paynient 
 of a fund in court to answer the legacy, subsequently to the 
 notice,(Z) but a purchaser of a fund or legacy should be satis- 
 fied there are no outstanding demands against the testator's 
 estate.(»j) 
 
 56. Where two persons, one of whom concurred as a surety, 
 joined * in assigning a reversionary interest in a fund in court 
 by way of mortgage, and the mortgagee obtained a stop order 
 and then assigned his securities, but no notice of the assignment 
 was given to the surety ; the assignment was held to be valid 
 against the surety as well as the principal.(w) 
 
 57. A verbal notice to an assurance company of an assign- 
 ment of a policy has been held sufficient, but it must be regu- 
 larly given ; and, of course, a written notice should be given, 
 where it can be.(o) 
 
 58. It is, however, no objection to a title under a power to 
 sell a funded property, that no notice of the assignment was 
 given to the trustees, provided no subsequent' incumbrancer has 
 given them notice ; but it must of course be. proved that no one 
 of the trustees has received any such notice. (js) 
 
 59. If the purchaser take an assignment or charge with notice 
 of the prior incumbrance- he will be bound by it, and it is unim- 
 portant that no notice of it was given to the trustees. (g) And 
 it has been held that between volunteers notice does not affect 
 priorities. (/•) 
 
 ,60. The rule is confined to choses in action, and does not 
 apply to an equity of redemption of real estate,(s) and therefore 
 an alienee of the equity of redemption who bought without 
 . notice of the first mortgage, was allowed to prevail over a sub- 
 sequent incumbrancer who had notice of the first conveyance, 
 but not of the second, although the latter caused a memorandum 
 
 {I) Livesey !J. Harding, 23 Beay. 141. (r) Justice v. Wynne, 12 Ir. Cli. Eep. 
 
 (m) Noble v. Brett, 24 Beav. 499. 289 ; In re Lowe's Settl. 30 Bear. 95. 
 
 [n) Wheatley v. Bastow, 7 De G., M. & (s) Jones v. Jones, 8 Sim. 633; see Ro- 
 
 G. 261. chard v. Fulton, 1 J. & L. 413 ; Wilmot v. 
 
 (o) North Brit. Ins. Co. o. Hallett, 7 Pike, 5 Hare, 14 ; Hooper u. HaiTison, 2 K. 
 
 Jur. N. S. 1263. & J. 86 ; see Wiltshire v. Rabbits, 14 Sim. 
 
 (p) Hobson u. Bell, 2 Beav. 17; Meux 76, as to an annuity charged by will on 
 
 e. Bell, 1 Plare, 73. leaseholds ; and Consolidated Investment 
 
 (g) "Warbarton «. Hill, 1 Kay, 470. Co. v. Riley, 1 Giff. 371. 
 
 [380] 
 
CH. X. § I.] PURCHASE OF CHOSE IN ACTION : NOTICE. 
 
 671 
 
 of his mortgage to be indorsed on the instrument under which 
 the mortgagor claimed, and which was in the possession of the 
 first incumbrancer. It has been questioned whether the doctrine 
 of Dearie v. Hall applies to an equitable assignment of railway 
 shares : And an equitable mortgagee by deposit of such shares 
 is entitled to priority over a prior judgment creditor of the mort- 
 gagor, who after the deposit obtained a charging order under 
 the 3 & 4 Vict. c. 105.(<) It has been doubted whether an equit- 
 able mortgage by deposit of railway shares can be created so as 
 to bind the assignees in bankruptcy of the . mortgagor, and. at 
 all events, notice of the deposit must be given to the company.(M) 
 If an equitable mortgage can be made of shares irrespective of 
 bankruptcy, it would seem that such a mortgage would bind the 
 mortgagor's assignees in bankruptcy. 
 
 * 61. It may be laid down as a general rule, that a purchaser 
 of a chose in action,(x) or of any equitable title, (^) must always 
 abide by the case of the person from whom he buys, and will 
 be entitled to all the remedies of the seller, (z) And yet there 
 may be a case in which a purchaser of a chose in action, merely 
 by sustaining that character, will be in a better situation than 
 
 {t) Dunster v. Ld. Glengall, 3 Ir. Cha. 
 R. 47 ; see Watts v. Porter, 3 E. & B. 743, 
 infra ; Scott u. td. Hastings, 4 K. & J. 
 633. 
 
 (a) Ex parte Boulton, 1 De 6. & J. I'63. 
 
 {x) Davies v. Austen, 1 Ves. jr. 247 ; 
 Turton v. Benson, 2 Ver. 764 ; Priddy v. 
 Rose, 3 Mer. 86 ; Hamil v. Stokes, 4 Pri. 
 161; Jennings v. Bond, 2 J. & L. 720; 
 Mangles o. Dixon, 3 H. L. Cas. 735 ; 
 Brandon v. Brandon, 7 De 6., M. & G. 
 36^. 
 
 (y) Whitfield v. Fausset, 1 Ves. 387. 
 
 (z) Ex parte Lloyd, 17 Ves. 245 ; 
 [Chitty Contr. (lOtii Am. ed.) 138, 139; 
 Shepley J. in Bartlett v. Pearson, 29 
 Maine, 9, 15; Sanborn v. Little, 3 N. H. 
 539 ; Greenw. Hatch; 12Mass. 195 ; Hooper 
 V. Brundage, 22 Maine, 460; Dyer v. 
 Homer, 22 Pick. 253, 256 ; Weeks v. Hunt, 
 6 Vt. 15 ; Walker v. Sargent, 14 Vt. 247 ; 
 Blin V. Pierce, 20 Vt. 25 ; Mostellen v. 
 Bost, 7 Ired. Bq. 39 ; Murray v. Lylburn, 
 2 John. Oh. 441, 4^3 ; Ainslie v. Boynton, 
 
 2 Barb. 258 ; Gay v. Gay, 10 Paige, 369; 
 Guerry v. Perryman, 6 Geo. 119; Ohio 
 Life ins. Co. v. Eoss, 2 Md. Ch. 25; 
 Harrison v. Marshall, 6 Porter, 65 ; ante, 
 378, n. {y). After notice of the assign- 
 ment, the debtor can impose no other 
 burdens, nor claim any other deductions ; 
 he cannot diminish the amount equitably 
 and justly due at the time of notice by any 
 matter of claim subsequently accruing, or 
 by any subsequent payment to the assignor, 
 nor can .he avail himself, for that purpose, 
 of any subsequent acts or admissions of 
 the assignor ; nor of any release or dis- 
 charge by him given after notic'e to the 
 debtor. And if the assignment is made 
 no good consideration and bond fide, the 
 creditors of the assignor cannot avoid or 
 defeat it, by an attachment under the 
 trustee or other similar process, although 
 the debtor had no previous notice of the 
 assignment. Chitty Contr. (10th Am. ed.) 
 139, and cases cited.] 
 
 [381] 
 
572 
 
 OF A TITLE WITH AN INDEMNITY. [CH. X. § II. 
 
 the person was of whom he bought.(a) And it seems, that 
 where a person purchases a specific legacy, delivered to the lega- 
 tee by the executor, if there is a deficiency of assets, the cred- 
 itors must follow their demand in reasonable time, or equity will 
 not assist them, otherwise, as the court observed, legacies would 
 be eternally locked up, and creditors encouraged in their laches, 
 and to call on purchasers of legacies to refund at a great length 
 of time.(ft) 
 
 SECTION II. 
 
 OF A TITLE WITH AN INDEMNITY. 
 
 1. Title subject to a charge, bad. 
 
 2. Fee-farm rents on estate sold and others ; 
 
 title bad. — Purchaser not bound to 
 take indemnity. 
 
 3. ) Power of reentry in lessor not a subject 
 9. J of indemnity. 
 
 4. Like power, sale in lots, and an indem- 
 
 nity to seller. 
 
 5. Arbitrator cannot award indemnity. 
 
 6. Seller not bound to give indemnity. 
 
 7. ) 
 
 g f Apportioned rent. 
 
 9. I Stipulation for a charge on one lot i 
 
 10. ) an indemnity. — Repair of chancel. 
 
 11. Nature of indemnity. 
 
 1. Where an estate sold is charged with legacies for infants, 
 although the legacies amount nearly to the purchase money, and 
 it is invested to answer them, yet if the fund should prove de- 
 ficient, the estate might be resorted to, and therefore the pur- 
 chaser would not, it seems, be compelled to take the title.(a) 
 
 2. We have already seen that small rents may be subjects of 
 compensation, although larger ones cannot.(a^) Where the estate 
 sold was with others of great value charged with a perpetual 
 crown rent of * forty marks, and a similar rent was granted to 
 trustees in fee, in the usual way, out of a part of the estate not 
 sold of nearly ten times the annual value of the rent, as an 
 indemnity to the rest of the estate against the rent, and it was 
 agreed that if there should be found any fee-farm rents or quit- 
 
 (a) George v. Milbanke, 9 Ves. 190; 
 Mangles «. Dixon, 3 H. L. Cas. 702 ; Payne 
 V. Mortimer, 1 Giff. 118, 4 De G. & J. 
 447. 
 
 (6) Gholmondley v. Orford, Ch. H. T. 
 1758, MS. ; Ward v. Ward, 4 Ir. C. K. 
 215. As to legacy duty on sale of a con- 
 
 [382] 
 
 tiugent legacy, see Farwell u. Scale, 3 De 
 G. & Sm. 359 ; see 22 & 23 Vict. c. 35, "s. 
 29. 
 
 (a) Dickenson v. Dickenson, 3 Bro. C. 
 C. 19. 
 
 (ai) [Ante, 312, 313.] 
 
CH. X. § II.J purchaser' NOT BOUND TO TAKE INDEMNITY. 673 
 
 rents chargeable on the property, an allowance should be made 
 at the rate of thirty years' purchase on the amount thereof; (6) 
 Sir Wm. Grant was of opinion, that the clause in the agreement 
 referred to a rent charging the estate sold only, and not to a rent 
 charging it and other estates; and that the rent was an objection 
 to the title. As to the question of indemnity, Halsey and Grant 
 was certainly a case of indemnity, and Horniblow and Shirley 
 a case of compensation ; but he doubted whether the deed exe- 
 cuted in order to relieve the estate in queation, could be consid- 
 ered such an indemnity as a purchaser ought to be compelled to 
 accept, nor should he then decide whether in this case any in- 
 demnity could or ought to be given by the vendor against such 
 fee-farm rent. Upon an appeal to Lord Eldon, he affirmed this 
 decision on the ground that the rent in question did not fall 
 within the condition; and he treated the early cases as not being 
 authoritiesj and held that a seller was bound accurately to de- 
 scribe what he was selling ; (c) and this put an end to the suit. 
 The purchaser did not object by his contract to the existence 
 of fee-farm rents, provided he had compensation for them. If, 
 therefore, the seller had been willing to sacrifice, by way of com- 
 pensation, the whole value of the rent of forty marks, it would 
 seem that the purchaser could not have objected that the rent 
 rode over other estates also. In this case the earlier cases were 
 not treated as binding authorities.(d) And it appears to be now 
 settled that a purchaser is not bound to accept a title with an 
 indemnity. (<Z') 
 
 3. Where the defect is such that the purchaser would really 
 be in danger of eviction, e. g. where the estate sold is comprised 
 
 (6) Hays v. Bailey, 10 Aug. 1813, MS ; (d^) [An indemnity will not be enforced 
 
 post (nth edit), Pnrch. 499; Casamajoru. against either party; Balmanno v. Lum- 
 
 Strode, 1 Wils. C. C. 428 ; Warren v. ley, I Ves. & Bea. 224 ; Paton v. Brebner, 
 
 Bateman, 1 Fla. & Ke. 448 ; Paine v. 1 Bligh, 42, 66 ; Aylett v. Ashton, 1 My. 
 
 Meller, 6 Ves. 349; Fildes v. Hooker, 3 & Cr. 105; Nouaille v. Flight, 7 Beav. 
 
 Mad. 193; Wise v. Ponsonhy, Sugd. II. 521 ; Eidgway w. Gray, 1 Mac. & G. 109, 
 
 of L. 677; Nouaille v. Flight, 7 Beav. Ill; Blake u. Phinn, 3 C. B. 976 ; unless 
 
 521. it be provided for by special agreement. 
 
 (c) M. T. 1821, MS. Walker v. Barnes, 3 Mad. 247 ; Aylett v. 
 
 (d) Horniblow v. Shirley, 13 "Ves. 81, Ashton, 1 My. & Cr. 105; Paterson v. 
 75; 2 Swan. 223 ; Halsey v. Grant, 13 Long, 6 Beav. 598; Boss v. Boards, 8 Ad. 
 Ves. 73 ; Prendergast v. Eyre, 2 Hog. & El. 290, 294.] 
 
 ■ 92. 
 
574 INDEMNITY AGAINST BENTS, ETC. [CH. X. § II. 
 
 with others in an original lease, under which the lessor has a 
 right to reenter for breach of covenants, so that the purchaser 
 might be evicted without any breach on his part, clearly he 
 would not be bound to accept the title with an indemnity.(e) 
 
 4. But where upon a sale of a leasehold estate in lots held 
 under * one lease, with a power of reentry for breach of cove- 
 nants, the lease was produced at the sale and inspected by the 
 purchasers' solicitor, and the purchasers were to indemnify the 
 seller against the rent and covenants in the lease, they were com- 
 pelled to take the title, although the conditions provided for the 
 apportionment of the rent, and took no notice of the covenants 
 and power of reentry, and either purchaser might be evicted by 
 the default of the other ; (/) but this has been considered not to 
 apply to a production unless it was made under circumstances 
 which gave a fair opportunity of examination. (g") 
 
 5. Where a purchaser is entitled to a good title, an arbitrator 
 to whom ail questions on the agreement are referred, must award 
 whether the title is good or bad ; he cannot award a conveyance 
 with an indemnity.{A) 
 
 6. And, on the other hand, the seller cannot be compelled to 
 convey something less than he has sold with an indemnity against 
 the risk of eviction. (i) But of course parties may contract for 
 an indemnity. (A;) 
 
 7. "Where an estate is sold subject to a rent, which, although 
 not so stated, appears to be only a part of a larger rent charged 
 on that and other property, the purchaser W^ill not be bound to 
 take the title, although for many years the apportioned rent has 
 been received ; an apportionment by deed must be shown. Al- 
 though an apportionment may be presumed, yet the question is, 
 whether a purchaser is compellable to accept a purchase, where 
 his title rests only on presumption, which may be rebutted by 
 other evidence. And equity would not decree a specific perform- 
 
 (e) Fildes v. Hooker, 3 Mad. 193 ; Tay- Belfast, 9 Ir. Ch. Eep. 204, 292 ; Bask- 
 
 lor V. Mai-tindale, 1 Yo. & Col. C. C. 658 ; comb v. Phillips, 6 Jur. N. S. 363. 
 
 Blake „. Phinn, 3 C. B. 976 ; Leathern v. (/) Paterson v. Long, 6 Bear. 590. 
 
 Allen, 1 Ir. C. K. 683; Darlington v. {g) Brumfitw. Morton, 3 Jur. N. S. 1198. 
 
 Hamilton, I Kay, 550, which consider as (A) Ross v. Boards, 8 Ad. & El. 290. 
 
 to this point ; Brupfit v. Morton, 3 Jur. N. (j) Balmanno v. Lumley, 1 Ves. & Bea. 
 
 S. 1198; Geoghegan v. Connolly, 8 Ir. 224; 1 Bligh, 60, 67. 
 
 Ch. Rep. 598; MulhoUand v. Mayor of (k) Aylett ». Ashton, 1 My. & Cra. 1 1 4. 
 
 [383] 
 
CH. X. § 11.] INDEMNITY AGAINST RENTS. 575 
 
 ance unless the seller could procure the ground landlord to ap- 
 portion the rent.(i) (1) 
 
 8. But where an apportioned rent was sold, if the rent was an 
 apportioned rent, the purchaser could not object that he would 
 not have the same remedies as if the rent were entire.(?») And 
 now where the reversion upon a lease is severed, and the rent is 
 legally apportioned, the assignee of each part of the reversion 
 will be entitled to the benefit of all powers of reentry in respect 
 of the apportioned rent or other reservation allotted to him.(«) 
 
 * 9. So where an estate, held under one lease, is sold iu lots, 
 and the fact is stated, and it is stipulated that the purchaser of 
 one particular lot is to be subject to the whole of the rent, the 
 other purchasers cannot object to the title, although there is a 
 clause of reentry on nonpayment of the rent contained in the 
 lease.(o) 
 
 10. Where an estate was sold in lots, and it was stated that 
 the estate was subject to the perpetual payment of 120/., but the 
 same and another perpetual annual payment were in future to be 
 charged upon and paid by the purchaser of lot 1, only ; it was 
 held, that the purchasers of the other lots were only entitled to 
 such an indemnity as could be made by the purchaser of lot 
 l,{p) and were not entitled to have their lots exonerated alto- 
 gether from the charges. So if, upon the sale of an estate which 
 is subject to a charge, for instance, that of repairing a chancel, 
 a stipulation is made that part of the estate shall be exonerated 
 from it, the vendor is not bound to procure an act of parliament 
 for exonerating it from the charge, but is merely to exonerate it 
 by a sufficient security on another estate.(g') 
 
 11. Where one estate is to be exonerated from a charge by a 
 
 (1) Barnwell c.. Harris, 1 Taunt. 430 ; (n) 22 & 23 Yict. u. 35, ». 3, inf. ch. 12, 
 
 Bowles V. Waller, Hay, 441 ; Warren v. s. 4. 
 
 Bateman, 1 Fla. & Ke. 455 ; Taylor v. (o) Walter o. Maunde, ubi sup. ; Pater- 
 
 Martindale, 1 To. & Col. N. S. 658. son v. Long, 6 Beav. 590. 
 
 (m) So held by the V. C. in Bliss v. (p) Casamajor v. Strode, 1 Wils. C. C. 
 
 Collins, 4 Mad. 229 ; 1 J. & W. 426 ; 428. 
 
 Walter v. Maunde, 1 J. & W. 181 ; Rob- (?) lb. 
 erts V. Snell, 7 M. & G. 577. 
 
 (1) For apportionment of rent under church building acts, see 17 & 18 Vict. c. 32 ; 
 under inclosures, exchanges, &c., 17 & 18 Vict. u. 97 ; and under the landed estates 
 act, Ireland, 21 & 22 Vict. c. 72 ; see In re Comyn's Est. 11 Ir. Ch. Rep. 330. 
 
 [384] 
 
676 
 
 DOUBTFUL TITLES. 
 
 [CH. X. § III. 
 
 security on another estate, the security should be coextensive in 
 quantity of estate with the original charge, and the new rent- 
 charge should be sufficient in amount to cover the old one, and 
 the costs also, and there should be a sufficient number of trus- 
 tees, and there should be no impediment in the way of the im- 
 mediate relief of the purchasers if damnified, and the purchasers 
 should have a voice in the appointment of new trustees ; (r) and 
 of course a good title must be shown to the estate upon which 
 an indemnity is agreed to be given. (s) 
 
 SECTION III. 
 
 OF DOUBTFUL TITLES. 
 
 4. 
 8. 
 5. 
 6. 
 7. 
 
 9. 
 
 10. 
 
 Title to be sifted. 
 
 Purchaser favored ; cases to courts of 
 
 law. — Doubtful title not enforced in 
 
 equity. 
 
 I House of Lords adopts the rule. 
 
 What is a doubtful title. 
 Doubt whether part sold. 
 Moody V. Walters. — Biscoe v. Perkiiis. 
 
 — Biscoe V. Wilks. 
 When appeal should be made to D. P. 
 Purchaser buying-in the adverse title. 
 
 * /. Of good and doubtful titles in equity. 
 
 12. Title under destruction of contingent 
 
 remainders, or statute of limitations, 
 good. — So where crown is barred. 
 
 13. To strips of land. 
 
 14. Against a claim for vendor's lien. 
 
 15. Bare possibility no objection. 
 
 16. Nor suggestions ; or suspicions. 
 
 17. Mines reserved to crown. — Mines under 
 
 common; where no objection. 
 
 18. But if mines, title bad. 
 
 19. Mines reserved to the lord. 
 
 20. Eegulations as to planting, &c. 
 
 21. Suspicion of fraud in appointment to 
 
 child. 
 
 ;i 
 
 Sale by father and child of the equitable 
 
 estate. 
 Bill filed by adverse claimant. 
 Existing right an objection. 
 
 General description of parcels. 
 
 Outstanding right to be admitted to copy- 
 holds. 
 
 Effect of notice to second purchaser. 
 
 Reversion ; incumbrances. 
 
 Sale under power in mortgage. 
 
 Powers to sell or mortgage. 
 
 Bankruptcy. 
 
 Seller's title under a conveyance from 
 his son. 
 
 ) Equitable title bought under decree 
 
 ) valid. 
 
 Not as against subpurchaser. 
 
 Purchaser going in before master. 
 
 Infant heir of seller. 
 
 Infant trustee acts. 
 
 Presumption of conveyance, or of sur- 
 render of term. 
 
 //. Of good and doubtful titles at law. 
 
 43. Good titles at law. — Doubtful title not 
 
 recognized. 
 
 44. But adverse right iatal. 
 
 (r) Casamajor v. Strode, 1 Wils. C. C. 
 428 ; Hayes v. Bayley, sup., post. 
 
 [385] 
 
 (s) Cottrell V. Watkins, 1 Beav. 361. 
 
CH. X, 
 
 § "!•] 
 
 DOUBTFUL TITLES. 
 
 577 
 
 45. Equitable objection's allowed at law. 
 
 46. Equitable grounds as a defence. 
 
 47. Seller must have the legal estate. 
 
 48. Sale by executor before decree in admin- 
 
 istration suit. 
 
 ///. Titles depending upon questions of fact. 
 
 49. Fact not admitting of proof. 
 
 50. 1 Deed depending upon extrinsic circum- 
 
 51. ) stances. 
 
 52. Doubt raised by devise of shares where 
 
 entirety sold. 
 
 53. Nouaille v. Greenwood. 
 
 55. Title depending upon proof of party an- 
 
 swering a descriptidu. 
 
 56. Doubtful reference by codicil to a will. 
 
 57. Construction of ill-penned shifting clause : 
 
 residency 
 
 58. Law decided, but unsettled. 
 
 59. Judgments: notice. 
 
 60. Issue upon pedigree. 
 
 61. Doubt as to legitimacy. 
 63. Doubtful fa»t at law. ' 
 
 1. A COURT of equity is anxious to protect a purchaser, and 
 give to him reasonable security for his title, not compelling him 
 to take a title without knowing whether it is good or bad. The 
 inclination of the court is in favor of the vendee, and a vendor 
 claiming to be exempted from the general rule is required clearly 
 to establish a case of exception. (a) 
 
 2. To enable equity to enforce a specific performance against 
 a purchaser, the title to the estate ought, like Caesar's wife, to be 
 free even from suspicion ; (b) for it would be an extraordinary 
 proceeding for a court of equity to compel a purchaser to take 
 an estate which it cannot warrant to him.(c) It has, therefore, 
 become a settled and invariable rijle, that a purchaser shall not 
 be compelled to accept *a doubtful title ; (d) and the court will 
 
 (a) 3 Swan. 168 ; 3 Mer. 137, 140. [See 
 Beckwith v. Kouns, 6 B. Men. 222.] 
 {!,) 2 Ves. 59. 
 
 (c) Heath v. Heath, 1 Bro. C. C. 147. 
 [See Cooper v. Denne, 1 Ves. jr. Sumner's 
 ed. 565, 567, note (4) of Mr. Hovenden.] 
 
 (d) Marlow v. Smith, 2 P. Wms. 198; 
 Mitchell V. Neale, 2 Ves. 679; Shapland 
 V. Smith, 1 Bro. C. C. 74; Cooper v. 
 Denne, 4 Bro. C. C. 80, 1 Ves. jr. 565 ; 
 Crewe v. Dicken, 4 Ves. 97 ; Rose v. Cal- 
 land, 5 Ves. 186 ; Roake v. Kidd, lb. 647 ; 
 Wheate u. Hall, 17 Ves. 80 ; Sloper v. 
 Fish, 2 Ves. & Bea. 145; Jervoise v. Duke 
 of Northumberland, 1 J. & "W. 559 ; Ld. 
 Lincoln v. Arcedeckne, 1 Col. 98 ; Price 
 V. Strange, 6 Mad. 150; Macdonal.d v. 
 Walker, 14 Beav. 556 ; [Collard o. Samp- 
 sou, 4.De G., M. & G. (Am. ed.) 224, & 
 note (1) ; Richmond v. Gray, 3 Allen, 27; 
 Sturtuvant v. Jaques, 14 Allen, 523 ; Park 
 
 VOL. I. 37 
 
 V. Johnson, 7 Allen, 383 ; Smith v. Child, 
 W. N. (Dec. 17, 1870) 257; Young v. 
 Rathbone, 1 C. B. Green (N. J.), 224; 
 Voorhees v. De Meyer, 3 Sandf. Ch. 614 ; 
 MuUins V. Trinder, L. R. 10 Eq. 449; 2 
 Dan. Ch. Pr. {4th Am. ed.) 989, & note 
 (3), and cases cited ; Sohier v. Williams, 1 
 Curtis C. C. 479; Butler v. O'Hear, 1 
 Desaus. 282; Lewis v. Herndon, 3 Litt. 
 358; Kelley v. Bradford, 3 Bihb, 317; 
 Seymour v. Delancey, 1 Hopk. 436 ; 
 Young V. Lillard, 1 Marsh. 482 ; Morgan 
 V. Morgan, 2 Wheat. 290, 299; Reed v. 
 Noe, 9 Yerger, 283 ; Watts v. Waddle, 6 
 Peters, 389 ; Hepbiirn v. Dunlap, 1 Wheat. 
 179; Beckwith v. Kouns, 6 B. Mon. 222; 
 Winne v. Reynolds, 6 Paige, 407 ; Little- 
 field V. Tinsley, 26 Texas, 353 ; Tomlin 
 V. M'Chord, 5 J. J. Marsh. 136 ; Beal v 
 Seiveley, 8 Leigh, 658 ; Bryan v. Reed, 1 
 Dev. & Batt Eq. 86; Swayne v. Lyon, 
 
 [386] 
 
678 
 
 DOUBTFUL TITLES. 
 
 [CH. X. § in. 
 
 not have regard to its own opinion only, but will take into ac- 
 count what the opinions of other competent persons may be.(e) 
 If the doubts as to the title arise upon a question connected with 
 the general law, the court is to judge whether the general law 
 upon the point is or is not settled enforcing specific performance 
 in the one case, and refusing to enforce it in the other ;(/) neither 
 
 67 Penn. St. 436, 439. The burden is on 
 the vendor to show the title to be free from 
 reasonable doubt; and that the vendee 
 will not be exposed, by taking it, to litiga- 
 tion. Sturtevant o. Jaques, 14 Allen, 
 523, 526 ; Richmond v. Gray, 3 Allen, 25 ; 
 Grifiin v. Cunningham, 19 Grattan, 571 ; 
 Speakman v. Forepaugh, 44 Penn^St. 363 ; 
 Swayne v. Lyon, 67 Penn. St. 436, 439 ; 
 Ludwick V. Huntzinger, 5 Watts & S. 51 ; 
 Colwell V. Hamilton, 10 Watts, 413. See 
 Dwight V. Cutler, 3 Mich. 575. The pur- 
 chaser is entitled to a marketable title. A 
 title which exposes him to litigation is not 
 so. Swayne v. Lyon, 67 Penn. St. 436. 
 A court of equity will not decree specific 
 performance, and compel a purchaser to 
 accept a title, which the vendor cannot 
 make out to be clearly, good and free from 
 incumbrance. Butler v. O'Hear, 1 De- 
 saus. 382 ; Swayne v. Lyon, 67 Penn. St. 
 439 ; Lewis v. Herndon, 3 Litt. 358 ; Kelly 
 V. Bradford, 3 Bibb, 317 ; Seymour o. 
 Delancey, Hopk. 436 ; Young v. Liilard, 
 
 1 A. K. Marsh. 482 ; Morgan v. Morgan, 
 
 2 Wheat. 290, 299 ; Sebring v. Merseroan, 
 9 Cowen, 344 ; Garnett v: Macon, 6 Call, 
 308^, Brown v. Gilliland, 3 Desaus. 539; 
 M'Comb u. Wright, 4 John. Ch. 659; 
 Bartlett v. Blanton, 4 J. J. Marsh. 428 ; 
 Brown u. Huff, 5 Paige, 235 ; Tomlin v. 
 M'Chord, 5 J. J. Marsh. 136 ; 1 Story 
 Eq. Jur. § 778; Gans v. Eenshaw, 2 Barr, 
 34. A purchaser cannot be compelled to 
 take land which is involved in doubts or 
 dispute as to boundary. Voorhees v. De 
 Meyer, 3 Sandf. Ch. 614. But equity 
 vrill not aid a purchaser who proceeds in 
 the treaty for a purchase after he has a 
 full knowledge of the defect in the title ; 
 Craddock v. Shirley, 3 Marsh. 288; nor 
 if his conduct has amounted to a waiver 
 
 of the objection. Roach v. Rutherford, 4 
 Desaus. 126 ; see Ramsay .v. Brailsford, 2 
 Desaus. 590, 591 ; Beverly v. Lawson, 3 
 Munf 317, 338 ; Mayo v. Purcell, 3 Munf. 
 243,; Barnett v. Gaines, 8 Ala. 373. As 
 to sales by an heir of lands descended 
 without taking out administration upon 
 the estate of the ancestor, or where the pe- 
 riod of limitation respecting debts against 
 the estate has not expired, see Richmond 
 V. Gray, 3 Allen, 25 ; Hayes v. Harmony 
 Grove Cemetery, 106 Mass. ; Schermer- 
 horn V. Niblo, 2 Bosw. 161, 165; Spring 
 </. Sandford, 7 Paige, 550, 552, 563.] 
 
 (e) Pyrke v. Waddington, 10 Hare, 1 ; 
 Falkner v. Eq. Eev. So. 4 Drew. 352 ; 
 Rogers v. Waterhouse, 4 Drew. 329. [But 
 the bare possibility that^ another judge 
 might think a title open to question, is not 
 a sufficient reason for refusing to compel a 
 purchaser to complete, where the court itself 
 entertains a strong opinion in favor of the 
 title ; but where there is an actual adverse 
 decision, the court, though thinking the 
 question free from doubt, will not compel 
 a purchaser to take the title. Mullings v. 
 Trinder, 18 W. E. 1186; L. R. 10 Eq. 
 449 ; 39 L. J. Ch. 833. In this case the 
 principles laid down in Pyrke v. Wadding- 
 ton, 10 Hare, 1, were approved of; but the 
 decision was disapproved of, and not fol- 
 lowed under precisely -similar circum- 
 stances. See Swayne «. Lyon, 67 Penn. St. 
 436. A purchaser may be compelled to 
 take a title which appears to the court of 
 appeal to be good, although the judge' of 
 the court below was of a different opinion, 
 that fact not being sufScient to constitute 
 a doubtful title. Beioley v. Carter, L. E. 
 4 Ch. Ap. 230.] 
 
 (/) Collard v. Sampson, 4 De G., M, 
 & G. 224. 
 
CH. X. § III.] ' DOUBTFUL TITLES; 579 
 
 will a purchaser "be forced to take an equitable title ;(g-) nor 
 when cases could be directed would a case -be directed to the 
 judges as to the title, unless the purchaser were willing that it 
 should. (A) In one case, where the opinion of the court was in 
 favor of the title, the purchaser's exceptions were overruled, with 
 liberty to him, if so advised, to have a case sent to a court of 
 law.(t) And even if a case was directed, and the judges certi- 
 fied in favor of the title, yet a specific performance would not 
 be decreed unless the court itself was satisfied of the equitable 
 as well as the legal, title of the vendor.(A;) And although the 
 judges certified in favor of the title, and there was no equitable 
 objection to it, yet if the point of law was doubtful, the pur- 
 chaser might have required another case to be directed, which 
 would not have been sent back to the same court.(Z) If a point 
 of law on which the title depended had been decided at law be- 
 tween other parties, and it was adverse to the title, the court, 
 whatever might be its opinion, would not overrule the decision, 
 but the purchaser would have been allowed to have a case sent 
 to a court of law.(»i) But now the court cannot sjend a case to 
 a court of law for its opinion, (ra) although it may call to its aid 
 one or more judges in the hearing in equity, and may itself de- 
 cide legal questions. The decisions referred to will, of course, 
 be followed in spirit under the new rules. 
 
 3., Every title, no doubt, is good or bad,(wi) and it has been 
 said that the court ought to know nothing of a doubtful title, 
 but the court* itself has adopted a different principle of decis- 
 ion. (o) Practically the judge acts only upon his own doubts.(/;) 
 
 {g) Cooper o. Denne, ubi sup.; 2 Ves. 9 Hare, 280; Manchester, &c. Ey. Co. v. 
 
 jr. 100; infra; [Littlefield v. Tinsley, 26 6t. Northern Ry. Co. 9 Hare, 284 ; Brenan 
 
 Texas, 353 ; Waggener o. Waggener, 3 v. Preston, 10 Hare, 339 ; and the bill for 
 
 Monroe, 556; Jones v. Taylor, 7 Texas, regulating chancery proceedings, which 
 
 240 ; Eagan v. Gaither, 11 Gill & J. 472 ; will shortly pass. 
 
 Freeland v. Pearson, L. R. 7 Eq. 246.] (n^) [Kent v. Allen, 24 Missou. 98.] 
 
 {h) Eoake v. Kidd, ubi sup.; Pyrke v. (o) 2 Ves. & Bea. 140; Maling v. Hill, 
 
 Waddington, 10 Hare, 7. 1 Cox, 186. [See Shapland v. Smith, 1 
 
 (i) Fisher v. Barry, 2 Hog. 153. Bro. C. C. (Perkins's ed.) 75, 76, note (3) ; 
 
 (k) Sheffield v. Lord Mulgrave, 2 Ves. Cooper v. Denne, 1 Ves. jr. Sumner's 
 
 j].. 526. ed- Mr. Hovenden's note at the end of the 
 
 {I) Trent v. Hannirig, 10 Ves. 500. case.] 
 
 (m) Peppercorn v. Peacock, 4 Jur. 1122. (p) 16 Ves. 272 ; 1 J. & W. 569 ; 4 My. 
 
 (n) 14 & 15 Vict. c. 83, s. 8; 15 & 16 & Cra. 470, 473. 
 Vict. c. 86, s. 61, 62; see Falknerw. Grace, 
 
 [387] 
 
580 DOUBTFUL TITLES. [CH. X. § III. 
 
 4. Although the purchaser, doubting the validity of the title, 
 notwithstanding the decree of the court, carries the case to the 
 House of Lords, which confirms the decision compelling him to 
 take the title, yet he does not obtain more than a precedent for 
 a decision in his favor if his title should be attacked by a third 
 party. He does not obtain an absolutely indefeasible title, but 
 as good a warranty as can be procured. (9) 
 
 I 5. The doubt must turn on a point either of law or of fact, 
 although it sometimes involves both. Where the point is one of 
 law, it mostly depends upon the construction of some instru- 
 ment, — in some cases the question is, What is the rule of law? 
 The courts have not drawn any distinction between these cases, 
 for if the point of law in the abstract is open to much doubt, 
 they decline to decide it between a vendor and purchaser, just as 
 they refuse to decide upon the construction of a doubtful instru- 
 ment, where upon the rule of law itself no doubt hinges. Where, 
 however, the point of law is alone in dispute, the objection that 
 the decision may bind third parties in their absence is entitled 
 to no weight, because, an whatever suits decided, all points of 
 law, as precedents, bind all alike. But a court is tender in de- 
 ciding doubtful points of. law against a purchaser, that is, com- 
 pelling him to take the title upon its decision, because other 
 courts may not follow that decision in the actual case : the ques- 
 tion may again be the subject of litigation commenced in an- 
 other court by the adverse claimant against the purchaser after 
 he has obtained a conveyance. Where the doubt turns upon 
 the construction of an instrument, the difficulty that the decision 
 must be come to in the absence of the persons whose claims are 
 in question, although their rights will not be bound by the de- 
 cision, is entitled to more weight. The distinction is a thin one, 
 for in either case the point is decided in the absence of a person 
 who is not bound by the decision, except so far as it may fur- 
 nish a precedent against him; but still a judge may feel himself 
 more at liberty to decide a general point of law between a ven- 
 dor and purchaser than a question of construction of an informal 
 instrument, which can afford no precedent, and upon which men 
 
 {q) 11 Ves. 465; 1 J. & W. 568; see ble title, which will be found in eh. 12, 
 now the acts for obtaining an indefeasi- infra. 
 
CH. X. § m.] DOUBTFUL TITLES. 581 
 
 may naturally differ, and which therefore should, if possible, be 
 decided in the presence of the persons whose interests are af- 
 fected indirectly, although not bound by the decision. Now that 
 the court can no longer send a case to law, there seems some 
 danger that it may sometimes overrule a decision at law operat- 
 ing in favor of a purchaser's objection, without requiring "the 
 assistance of a common law judge. In a case,(r) where there 
 was a general charge by the testator of his debts, and a devise 
 of his estates to trustees for a term upon trust, in case of default 
 by any of his sons in payment of his share of the debts, and 
 certain legacies, out of the rents of his share of the estates to 
 raise the sum required, and subject to the term, he devised his 
 estates to his five sons as tenants in common in fee, upon con- 
 dition to pay equally the debts, &c., it was held that the execu- 
 tors took by implication a power to sell the fee, and. a sale by 
 the two survivors at the end of thirty years after the testator's 
 death under the power, was held to be such a title as the pur- 
 chaser was bound to accept. The master of the rolls said, if the 
 court is of opinion that the title at law is clear, it is bound so to 
 decide, it cannot speculate upon the question whether any other 
 court would came to an opposite conclusion. This seems hardly 
 the true rule. The very point decided was open to much doubt, 
 both upon the authorities and upon the intention of the tes- 
 tator. 
 
 6. Where the question was whether a shed was sold to the 
 purchaser of a house, &c., and it was claimed by the owner of 
 the adjoining house under a conveyance from the same vendor, 
 whose claim was doubtful, and it was doubtful whether an alter- 
 ation in the particulars of sale excluding the shed was made 
 before the sale, in equity the vendor's bill was dismissed, and at 
 law the purchaser was allowed to recover his deposit with inter- 
 est and expenses of investigating the title. (s) 
 
 7. In Moody v. Walters,{f) Lord Eldon decided that there was 
 no breach of trust in that case by the trustees for preserving 
 contingent remainders having joined in suffering a recovery. 
 
 (r) See Wrigley v. Sykes, 21 Beav. (s) Simmons v. Heseltine, 5 C. B. 554. 
 337 ; 2 Jur. N. S. 79 ; 25 L. J. N* S. 458 ; («) 16 Ves. 283. 
 Sabin v. Heape, 5 Jur. N. S. 1146 ; Hall 
 V. Hart, 2 J. & H. 76. 
 
 [388] 
 
582 GOOD OR DOUBTFUL TITLES. [CH. X. § ffl. 
 
 This depended upon his view of the rule of a court of equity as 
 applicable to the case before him, and upon this he decided. In 
 a later case, where also the title depended upon a recovery, in' 
 which the trustees to preserve had joined with the tenant for life 
 and his son tenant in tail in destroying the remainders expectant 
 upon the first remainder in tail, Lord Eldon said he should com- 
 pel the purchaser to take the title unless he would reverse his 
 opinion. That, he observed, was formerly the course instead of 
 letting off a purchaser upon a doubtful title, and the purchaser 
 then went to the House of Lords.(M) Another purchaser, under 
 the same title as the last, persisted in the same objection after 
 Lord Eldon's decision, and with full notice of it; and the same 
 learned judge enforced a specific performance, and this time 
 made the purchaser pay the costs. (a;) 
 
 * 8. But still, in the case of a mere abstract point of law, if 
 even the House of Lords think it a doubtful one, it may decline 
 upon that ground to enforce the completion of the purchase 
 without deciding the po\nt(i/) 
 
 9. Where upon an exception to a master's report that the seller 
 could make a good title, the court overruled the exception, (2) 
 from which order the purchaser appealed to the House of Lords, 
 Lord Eldon C. held that tbe court of chancery should decide by 
 a decree whether the title was so clearly good as to be binding 
 against an unwilling purchaser, apd if the court should decide 
 in the affirmative, then the Lords must give its final judgment on 
 the subject; but if in the negative, it might be unnecessary to 
 decide the question, and an order was accordingly made direct- 
 ing the appeal to stand over until the cause should be heard on 
 further directions in the court below.(a) But it is difficult not 
 to be too early or too late. A purchaser upon whom an objec-"" 
 tionable title is forced should embrace the earliest opportunity of 
 appealing, so as to save further costs in the suit.(6) 
 
 (u) Biscoe I). Perkins, 1 Ves. & Bea. {z) Jenkins v. Hemes, 4 Mad. 67 ; the 
 
 485r statement at the conclusion of the report 
 
 (x) Biscoe V. Wilks, 3 Mer, 456 ; Pear- should have been that the exception was 
 
 son u. Lane, 17 Ves. 101 ; a case upon a overruled, 
 
 partition. (a) Herries v. Jenkins, D. P. 1823 ; 6 
 
 (y) Blosse v. Lord Clanmorris, 3 Eligh, Sim. 168; and note below. 
 
 62; 2 Mol. .580. (5) Sugd. H. of L. 674. 
 
 [389] 
 
CH. X. § III.J GOOD OR DOUBTFUL TITLES. 583 
 
 10. If a purchaser under a decree obtain a conveyance of the 
 supposed adverse title from knowledge acquired as purchaser, it 
 seems that he would not be allowed to set it up as an objec- 
 tion, (c) 
 
 11. We may now consider more particularly in what instances 
 a title will be forced upon a purchaser in equity or at law.(l) 
 
 (c) Sheppard v. Doolan, 3 Drn. & War. 1. 
 
 (1) The following further examples are extracted from the eleventh edition of this 
 work. It would be useless to go on multiplying instances. 
 
 1. In equity, where considered too doubtful, to be forced on a purchaser: 
 
 Whether by devise the legal estate passed to the tenant for life so as to enable his 
 estate for life to coalesce with a subsequent legal limitation to his heirs male of his 
 body, Shapland v. Smith, 1 Bro. C. C. 7.5 ; Playford v. Hoare, 3 Yo. & Jer. 175. In 
 1795 the heir claiming by purchase the estate, the subject of the suit in Shapland v. 
 Smith, brought an ejectment The claimant under Christopher Shapland, the tenant 
 for life, at first defended the ejectment, but afterwards confessed the action. — Whether 
 by devise a man took an estate tail where, after a devise to him for life, the gift was to 
 such of his children as he should appoint, and their heirs, and for want of appoint- 
 ment, to the heirs of his body and their heirs forever ; and in case he should die with- 
 out issue of his body, then over to his sister, &c., and in case he should live and have 
 children as aforesaid, then ^OOl. to the sister at twenty-one or marriage, Wilcox v. 
 Bella«rs, Tur. & Rus. 491. — Whether under a devise to his son, to be entailed upon 
 his male heirs, and failing such, to pass to his next brother, and so on from brother to 
 brother, allowing 2,500/. to be raised upon the estates for female children each, the son 
 took an estate tail, Jervoise </. Duke of Northumberland, 1 J. & W. 559. — This was 
 afterwards, in a family suit, held to be an estate tail. Whether a devise to a son for- 
 ever if he have a son who shall attain twenty-one, but if he should chance to die with- 
 out a son to inherit, the son of another son should inherit, created an executory de- 
 vise, and not a remainder over expectant upon an estate tail. Heath u. Heath, 1 Bro. 
 C. C. 147 ; Roake v. lUdd, 5 Ves. 647 ; Fisher v. Barry, 2 Hog. 153. — Whether a fee 
 passed by a will by the application of the words " with all right and title to the same," 
 to previous devises, which could not be settled without litigation, Sharpe v. Adcock, 4 
 Rus. 374 ; now 1 Vict. e. 26. — Whether the term in a will, "legal representatives," 
 of children as should be dead, meant executors and administrators. Price v. Strange, 6 
 Mad. 159 ; Cotton v. Cotton, 2 Beav. 67. — Whether the purchaser could have a valid 
 legal covenant to run with the land to produce the title deeds, Barclay jj. Raine, 1 Sim. 
 & Stu. 449. — Whether leaseholds for lives passed under general words in a devise with 
 fee simple estates to uses in strict settlement, Sheffield v. Ld. Mnlgrave, 2 Ves. jr. 526 ; 
 1 Vict, c 26. — Whether a power of sale inserted in a settlement made under the' 
 direction of the court, was authorized by the will which directed the settlement, Wheate 
 V. Hall, 17 Ves. 80. — And in another case, whether a power of exchange, executed in 
 aid of an imperfect exchange, was valid, Cowgill w.'Ld. Oxmantown, 3 Yo. & Col, 
 369 ; see Garnett v. Acton, 28 Beav. 333 ; and in a third, whether a power of sale in 
 a mortgage by an executor 'for the payment of debts could be supported, Sanders v. 
 Richards, 2 Col. 568. — Whether void leases granted by a tenant for life imder a. 
 power, were confirmed by a recovery suffered by him and the tenant in tail, and by a 
 
684 GOOD OR DOUBTFUL TITLES. [CH. X. § HI. 
 
 And I. in Equity ^- 
 12. A purchaser will be compelled to take a title depending 
 upon the destruction of contingent remainders,(rf) or upon the 
 
 [d] Roake v. Kidd, 5 Ves. 647 ; Kenn v. Corbet, MS. before Lord Eldon ; Has- 
 ker V. Sutton, 2 Sim. & Stu. 513. 
 
 conveyance to a purchaser, the lease being recited in the recovery deed and in the con- 
 veyance, Cooper V. Benne, 4 Bro. C. C. 80. — Whether one of two trustees to -whom 
 the other had conveyed, could alone give a valid discharge for the purchase money, 
 Crewe v. Dicken, 4 Ves. 97 ; Nicloson o. Wordsworth, 2 Swa. 365. — Whether one of 
 several trustees for sale under a will having renounced, the continuing trustees could 
 make a good title and give a valid discharge for the purchase money, Adams v. Taun- 
 ton, 5 Mad. 435. — Whether presumption from nonpayment of tithe would bar a lay 
 impropriator. Rose v. Calland, 5 Ves. 186 ; Mead v. Ld. Norbury, 2 Price, 338 ; 3 Bligh, 
 217 ; Berney v. Harvey, 17 Ves. 119. — Whether long possession of a portion of tithes 
 justified the presumption of a grant. Judgment in Oxenden v. Skinner, 4 Gwil. 1513. 
 — Whether an allotment for a right of warreu was authorized by an inclosure act, 
 Casamajor v. Strode, 2 My. & Ke. 706. — Where the title was -made through tenants 
 in tail claiming by descent, who had not been in possession for a considerable period 
 prior to 1793, and there was no proof of the pedigree except in the recitals in a deed 
 executed in that year, Fortw. Clarke, 1 Rus. 601. — Whether a conveyance had been 
 executed as an escrow or not, Sloper v. Fish, 2 Ves. & Bea. 145. — Whether a reversion 
 which was vested in the crown by forfeiture, and not by original grant, could be barred 
 by a recovery, Blosse v. Clanmorris, 3 Bligh, 62. — Whether trustees took the legal fee 
 ■ in a deed under a limitation to them and their heirs, or whether it could be cut down 
 by the context to an estate pur autre vie, Colmore v. Tindall, 2 Yo. & Jer. 605 ; see 
 Nash V. Coates, 3 B. & Ad. 846. ^-- Whether an act of bankruptcy having been com- 
 mitted by the vendor, a commission might not issue, although no debt could be shown 
 to exist, and the seller swore there was none, Lowes v. Lush, 14 Ves. 547. — Whether 
 a commission issued against the seller, but not opened, might not be opened so as to 
 vest the legal estate in the assignees, although the equity was bound by a decree in a 
 suit, Cann v. Cann, 1 Sim. & Stu. 284. — Whether the seller had the entirety of the 
 estate, the doubt arising from expressions in the will under which he claimed, Stapylton 
 V. Scott, 17 Ves. 272. — Even at law, whether a covenant in a brewer's lease, purport- 
 ing to bind the assignees, would bind the purchaser, as assignee, to buy his beer of the 
 lessor. Hartley u. Pehall, Peak, 135 ; Bristow v. Wood, 1 Col. N. C. 480. — Whether 
 words of contingency can be rejected, and the devisee for life be held upon the construc- 
 tion of the whole will, to take an estate tail in order to include all the issue, Jenkins 
 V. Herries, 4 Mad. 67. — This was so decided against the purchaser upon exceptions, 
 but that decision was not adopted in the House of Lords, MS. 6 Mad. 168, n. The 
 author argued the case in D. P. ; the House resolved to wait for the decree on further 
 directions ; but the will has since been held to create an estate tail, JenKins v. Clinton, 
 26 Beav. 108 ; Jenkins v. Hughes, 8 H. L. Cas. 571 ; see Anderson v. Anderson, 7 Jur. 
 N. S. 1067. — Whether a probate in the consistory court, where the original will was 
 proved in the prerogative court, was sufficient, Williams a. Bland, 2 Col. 575. — 
 Whether a partition can be made under a power of sale 'and exchange, Bradshaw v. 
 Pane, 3 Drew. 534. — Whether a power to sell in a mortgage deed was not destroyed 
 by a transfer of the mortgage. Cruse d. Nowell, 2 Jur. N. S. 536. 
 
CH. X. § m.] GOOD OR DOUBTFUL TITLES. 585 
 
 statute of limitations ; (e) and the same rule applies when the 
 crown is barred * under the nullum tempus act.(/) But now a 
 
 (e) .Scott V. Nixon, 3 Dru. & War. 388; 89 ; Doe v. Archbishop of York, 14 Ad. 
 
 Kirkwood v. Lloyd, 12 Ir. Eq. E. 585; & El. N. S. 81; Manning v. Phelps, 10 
 
 Stewart v. Marquis of Conynghara, 1 Ir. Exch. 59. As to the Duchy of Cornwall, 
 
 Cha. C. 534; Hyde v. Dallaway, 6 Jur. see, further, 7 & 8 Vict. c. 105, ». 76, 77 ; 
 
 119. [See Seymour v. Delancey, 1 Hopk. 23 & 24 Vict. c. 53 ; Att. Gen. v. Max- 
 
 436.] well, 8 Price, 76; Att. Gen. v. l-ord 
 
 (/) 9 Geo.3, c. 16; 48 Geo. 3, c. 47, Eardley, lb. 39; 24 & 25 Vict. i;. 62; 
 
 Ir. ; Tuthill v. Rogers, 1 J. & L. 36 ; Sugd. Stat. 2d. edit. 9. [See Brown v. 
 
 Lethbridge v. Kirkman, 25 L. J. 89, Q. B. ; Witter, 10 Ohio, 142.] 
 Kernaghan o. M'Nally, 12 Ir. Ch. Kep. 
 
 2. Where a purchaser has been compelled to take the title : 
 Where it was held that a trust estate pass-ed by a general devise, although the mas- 
 ter had reported that it did not pass, but the master of the rolls and the lord chancel- 
 lor ruled differently, and a specific performance was decreed, Ld. Braybroke v. Inskip, 
 8 Ves. 417. — Where it was held that an equitxble recovery might be suffered without 
 the concurrence of the equitable mortgagee, Nouaille v. Greenwood, Tur. & llus. 26. — 
 Where under an obscure will a purchaser was compelled to take the title upon the con- 
 struction that although the legal estate was not given, a power of sale was, Warneford 
 V. Thompson, 3 Ves. 513. — Where a grant from the crown of an advowson which 
 under general words had been excepted out of- an early grant in existence was pre- 
 sumed against a purchaser, the title being evidenced by conveyances and deeds for 
 nearly 140 years, and there having been three presentations under them, and none by 
 the crown, Gibson v. Clarke, 1 J. & W. 159. — Where a conveyance of the legal fee was- 
 presumed, as it was considered such a title as a purchaser might safely take, Hilary v. 
 Waller, 12 Ves. 239 ; Doe v. Davies, 1 Ad. & El. N. S. 430. — "Where the surrender of 
 a, term of years to secure portions was presumed, Emery v. Grocock, 6 Mad. 54. — 
 Where from an inaccurate statement in a will of a settlement, it was presumed that 
 the legal estate was vested in the trustees of the settlement, Nouaille v. Greenwood, 
 Tur. & Bus. 26. — Where the title to an exemption of tithe depended on the unity of 
 possession of the rectory; manor, and lands in one of the greater monasteries dissolved 
 by 31 Hen. 8, Monk v. Hnskisson, 1 Sim. 280. — Where the title depended upon the 
 ability of a tenant for life to release his power of appointing to his children, or upon 
 the operation of an appointment to a child as controlled by a previous settlement made 
 by that child with the father's concurrence. West v. Berney, 1 Russ. & My. 431 ; Smith 
 V. Death, 5 Mad. 371. — Where the title depended upon the validity of a sale and ex- 
 change with a tenant for life, whose consent to the act was necessary, Lord Eldon 
 stating that he should have said originally it would not do, but he thought it had been 
 settled by the practice of conveyancers, Howard v. Ducane, Tur. & Rus. 81 ,- but this 
 has not been extended to a mortgage with a power of sale to one of the trustees whose 
 consent was required to the exercise of powers of revocation and new appointment, 
 Eland v. Baker, 19 Beav. 137, g»., and consider the case. —Where the title depended 
 upon a general power of sale and exchange, not being void as tending to a perpetuity, 
 Biddle v. Perkins, 4 Sim. 134 ; Sugd. Pow. 868, 8th edit. — Even where the question 
 upon an obscure will was upon the part of the seller argued to be whether the devisee 
 took an estate in tail male or an estate for life, with contingent remainders, a recovery 
 having been suffered, the court overruled the purchaser's objection, as they saw an in- 
 
 [390] 
 
586 
 
 BARE POSSIBILITY. OLD ENTAILS. [CH. X. § III. 
 
 contingent remainder existing any time after the 31st December, 
 1844, is capable of taking effect, notwitlistanding the determina- 
 tion by forfeiture, surrender, or merger of any preceding estate 
 of freehoid.(g') A purchaser may be compelled to accept a title, 
 although there has been a voluntary settleinent(A) 
 
 * 13. So where the title depended upon the question, whether 
 strips of land lying between the highway and old inclosures 
 formed part of the estate or belonged to the lord as part of the 
 waste, which was treated as a question of presumption, and 
 upon the evidence the court came to the conclusion that the 
 legal presumption did arise that the owner of the adjoining land 
 was entitled to inclose them ; (i) the purchaser was compelled 
 to accept the title. 
 
 14. And where the title depended upon the right of the pre- 
 ceding seller to a lien for the purchase money unpaid, a question 
 of great nicety, the court compelled the purchaser to take the 
 title, prefacing the decree by a declaration that no lien existed. (A;) 
 And in all these * cases, depending upon legal questions, of 
 course the same rule would prevail at law. 
 
 15. We have seen, that a purchaser cannot be compelled to 
 take a doubtful title ; but, nevertheless, he will not be permitted 
 to object to a title on account of a bare possibility. (Z) 
 
 16. Therefore suggestions of old entails, or doubts what issue 
 persons have left, wheth&r more or fewer, are never allowed to 
 
 (jr) 8 & 9 Vict. c. 106, s. 1, 8 ; 7 & 8 (k) Clarke w. Royle, 3 Sim. 499. 
 
 Vict. o. 76, s. S, 13. (I) 2 Atk. 20 ; 3 Yo. & Col. 554; 12 
 
 (h) Butterfield v. Heath, 15 Beav. 408 ; Ves. 252 ; [Laurens v. Lucas, 6 Rich. Eq. 
 
 in/: c. 22. 217.] 
 
 (i) Howard v. Ducane, Tur. feUns. 81 ; 
 Dendy v. Simpson, 18 C. B. 831. 
 
 tention to give to the devisee a much larger estate than he would take according to the 
 purchaser's construction, and were of opinion that he took such an estate as enabled him 
 to make a good title to the fee by the means which he had adopted, Kushton v. Craven, 
 12 Pri. 599. Observe, there is nothing in the case which warrants the reporter's 
 abstract about a purchaser's right to object to a doubtful title, nor is the observation in 
 the n. to 6 Sim. 169, well founded, namely, thatin Rushton v. Craven, the declaratioa 
 that the purchaser was bound by the opinion of the court, avoids altogether the real 
 difficulty. I do not find any such declaration, nor would such a declaration alter 
 the case. 
 
 [391] [392] 
 
CH. X. § ni.J SUSPICION. MINES. TIMBER. 587 
 
 be objections of such force as to overturn a title to an estate, (m) 
 Mere suspicion ending in suspicion, cannot be the legitimate 
 ground of legal decision. («) 
 
 17. So where,(o) in the original grant by the crown, there was 
 a reservation of mines, without a right of entry ; yet, as there 
 had been no search for mines for one hundred and eleven years, 
 and, * upon examination, the probability was great there were no 
 such mines, and the crown, for want of a right of entry, could 
 not grant a license to any person to enter- and work them. Lord 
 Hardwicke decreed a specific performance.(o^) And a purchaser 
 of an estate, with some valuable mines which were ,under a 
 common, was compelled to complete, as an obstruction from the 
 commoners was highly improbable.(p) Lord Eldbn said that if 
 an action were brought by a commoner, he should think a far- 
 thing quite damages enough, and therefore decreed a specific per- 
 formance. These cases turned upon the improbability of a dis- 
 turbance, for a farthing damages would not be a ground for a 
 nonsuit.(g') 
 
 18. But where in a common conveyance in 1704 a reservation 
 was made of salt works, &c., with a right of entry, and it was 
 rather admitted there were such mines, the title was not deemed 
 good, although on a sale in 1761 no notice was taken of the 
 reservation and the right had never been exercised ; the purchaser 
 accepted the title with a compensation. (r) So where the work- 
 ings under an agreement had ceased, and the pits had been filled 
 in, but the right to work them was held not to have ceased, the 
 purchaser's claim to a compensation was established. (s) 
 
 19. Where a purchaser bought an estate together with all tim- 
 ber and other trees, and all app\irtenances to the same belonging, 
 before an enfranchisement, with a stipulation that the enfran- 
 
 (m) 2 Atk. 20, per Lord Hardwicke ; Ld. (oi) [See "Wiune v. Reynolds, 6 Paige, 
 
 Braybrooke w. Inskip, 8 Ves. 417; Dyke 407, cited and stated ante, 312, note 
 
 V. Sylvester, 12 Ves. 126 ; see3 Yo. & Col. (S').] 
 554, per Alderson B. {p) Anon. Chan. 7 Sept. 1803, MS. ; 
 
 (n) Per C. J. Gorton v. Sir T. Champ- Havens v. Middleton, 10 Hare, 641. 
 neys, Tur. & Rns. 28. (?) Pindar v. Wadsworth, 2 East, 154. 
 
 (o) Lyddal u. Weston, 2 Atk. 19; Sea- (r) Seaman w. Vawdrey, 16 "Ves. 390; 
 
 man v. Vawdrey, 16 Ves. 390 ; Barton v. Martin v. Cotter, 3 J. & L. 496. 
 Ld. Downes, 1 Pla. & Ke. 505 ; Martin v. (s) Ramsden v. Hurst, 27 L. J. N. S 
 
 Cotter, 3 J. & L. 496 ; Stewart v. Mar- 482. 
 quis of Conyngham, 1 Jr. C. K. 545. 
 
 [393] 
 
588 SALE BY FATHER AND CHILD. [CH. X. § IIL 
 
 chisement was to be obtained by the seller under the legislative 
 powers, and the seller obtained an enfranchisement with a reser- 
 vation to the lord of the mines, it was held that the purchaser 
 could not object to the reservation. (<) 
 
 20. Where an estate was under an old inclosure subject to 
 many regulations as to fences, planting, &c,, which were not 
 disclosed to the purchaser, he was relieved from the contract, 
 although the estate had been demised to a tenant for nine hun- 
 dred years, and there was little or no probability thdt he would 
 permit a breach of the covenants.(M) 
 
 21. A mere svspicion of fraud, which cannot be made out, will 
 not enable a purchaser to reject the title. This was decided by 
 Lord Eldon in a case where, under an exclusive power of ap- 
 pointment, a father appointed to one son in fee; and then the 
 father and his wife and the son joined in conveying to a pur- 
 chaser, and the money was expressed to be paid to them all. 
 But it did not appear that the estate sold for less than its value, 
 or that the .son got less than the * value of his reversionary inter- 
 est, (a;) And the mere circumstance of a notice having been 
 given by the other children to a purchaser, that they will im- 
 peach the appointment, will not prevent a specific performance, 
 unless the notice is acted upon, or facts are brought forward to 
 impeach the appointment.(y) But an appointment to an adult 
 child for the purpose of removing the objection pendente lite was 
 considered not to confer such a title as could be forced on a pur- 
 chaser, (z) 
 
 22. Where the sale is by a father and a child or elrildren, and 
 the father has executed the usual power of appointment in favor 
 of the children, the purchaser should proceed with caution, and 
 certainly should not leave the legal estate outstanding. In a 
 
 (t) Kerr v. Pawson, 25 Beav. 394 ; 27 664 ; King v. King, 3 Jur. N. S. 609, 1 De 
 
 L. J. N. S. 594, see now 21 & 22 Vict. c. G. & J. 663 ; Warde v. Dixon, 28 L. J. N. 
 
 94, ». 14 ; Pretty B. Solly, 26 Beav. 606 ; S. 315; Sngd. Pow. (8th edit.) 616; 
 
 and an act just passed relating to the res- Pickles v. Pickles, 31 L. J. N. S. 146. 
 
 ervation, &c., of minerals, jn/ra, ch. 12. (y) Green v. Pulsford, 2 Beav. 70; 
 
 (w) Larkin v. Lord Rosse, 10 Ir. Eq. R. Grove v. Bastard, 2 Phil. 619; 1 De G., 
 
 70. M. & G. 69 ; Grove v. Young, 5 De G. & 
 
 (x) M'Queen v. Parquhar, 11 Ves. 467 ; , Sra. 38. . 
 
 post, ch. 24 ; Barnwell v. Harris, 1 Taunt. (z) Weir v. Chamley, 1 Ir. Ch. R. 295 ; 
 
 430 ; Boswell v. Mendham, 6 Mad. 373 ; see Carver v. Richards, 27 Beav. 488, 1 De 
 
 Campbell v. Home, 1 Yo. & Col. C. C. G., F. & J. 548. 
 [394] 
 
CH. X. § III.] OBJECTIONS TO TITLE. " 589 
 
 late case, where such a purchase had been made, and the ap- 
 pointment had been made long before the purchase, and all the 
 children, including those to whom no appointment had been 
 made, but who were entitled equally with the others in default 
 of appointment concurred in the conveyance, but the trustee of 
 the legal fee who was made a party refused to convey, and the 
 purchaser after the death of the tenant for life filed a bill for a 
 conveyance of the legal estate, the master of the rolls treated it 
 as in its nature a case of specific performance, and upon the 
 suspicious circumstances dismissed the bill. (a) The purchaser 
 had before his purchase obtained grants of annuities from the 
 father and the adult appointees, and the father lived seventeen 
 years after the sale. In giving judgment the learned judge ob- 
 served, that he was of opinion that, if an estate were" vested in 
 a trustee in trust for a father for life, and remainder to his son in 
 fee, and if, immediately on the son coming of age, a man were 
 to buy the estate from the father and son, and he paid ail the 
 purchase money to the father, or so that the father should take 
 it all, and if in addition to this the trustee expressed his disap- 
 probation of the same and refused to convey the legal estate ; 
 the purchaser requiring a conveyance of it would be required to 
 prove that, as against the son he was entitled to that relief. In 
 such a transaction it was necessary that everything should be 
 clear and straightforward, and also that it should be complete and 
 not rest in fieri. This applies, we may observe, to the purchase 
 of all equitable interests, where it frequently happens that the 
 trustees cannot part with the fund, as the wife has a life interest 
 * in it if she should survive her husband. It is calculated to 
 alarm purchasers, and can hardly be reconciled with the doctrine 
 in M' Queen v. Farquhar. If a purchaser from a father and son 
 were to involve himself with the proportions in which the pur- 
 chase money should be divided between the father and son, and 
 pay them accordingly, no doubt it would be attempted to show 
 that the son did not get his full proportion. 
 
 23. It is not a conclusive objection to a title that a third party 
 has filed a bill against the seller, claiming a right to the estate, 
 but the nature of the adverse claim will be examined into. (6) 
 
 (a) Hannah v. Hodgson, Sp Beav. 19, 7 (i) Osbaldeston v. Askew, 1 Rus. 160 ; 
 Jur. N. S. 1092, 30 L. J. N. S. 738. Bentley v. Craven, 17 Beav. 204. 
 
 [395] 
 
5'JO PUECHASEB WITH, FROM ONE, WITHOUT NOTICE. [CH. X. § III. 
 
 24. But if any person has an interest in or claim upon the 
 estate which he may enforce, a purchaser cannot be compelled 
 to take the estate, however improbable it may be that the right 
 will be exercised. Thus, in the case of Drewe v. Corp,(c) the 
 vendor was entitled to an absolute term of four thousand years 
 in the estate, and also to a mortgage of the reversion in fee, 
 which was forfeited but not foreclosed. It was decided, that the 
 purchaser who had contracted for a fee, was not bound to take 
 the term of years. Nor was he compelled to take the title on 
 the ground of the vendor having a forfeited mortgage in fee of 
 the reversion. 
 
 25. In a case where a close called the Croyle had always been 
 known by that name, and had been possessed by the seller and 
 his ancestors as part of the estate sold, but no mention was 
 made of it in the deeds by name, and all the other lands were 
 particularly described ; the court considered the evidence of title 
 to be merely that of long possession, and held that the purchaser 
 was not bound to accept the title.(rf) 
 
 26. But where it is established by evidence that a copyhold 
 estate sold has continually passed and been enjoyed by the de- 
 scription contained in the court rolls, it is not material that there 
 is only a general and vague description of the estate on the 
 rolls,{e) and the purchaser will be compelled to take the title. 
 
 27. Where a purchaser of a copyhold obtained a title from 
 the cestuis que trust under a will and the heir of the devisor, so 
 that he could only be disturbed by the trustees under the will, 
 who had no interest and had not been admitted, yet he was held 
 entitled to a release from the trustees of their right to be ad- 
 mitted.(/) 
 
 28. Although in many cases a purchaser with notice may 
 safely purchase from one who bought without notice, yet the 
 title would *not be forced on the second purchaser, as he would 
 have to incur the risk of notice being proved. (g-) 
 
 (c) 9 Ves. jr. 368. (e) Long v. Collier, 4 Eus. 267. 
 
 ((£) Eyton v. Dicken, 4 Pri. 303. [See {/) Steele v. Waller, 28 Beav. 466. 
 
 Conover v. Wardell, 5 C. E. Green (N. {g) Freer v. Hesse, 4 De G., M. & G. 
 
 J.), 266 ; S. C. 7 C. E. Green, 492.] 495. 
 
 [396] 
 
CH. X. § III.J POWKE IN MOETGAGEE. BANKKUPTCY. 691 
 
 29. Where a vendor was tenant in tail, with reversion to him- 
 self in fee, and the reversion had vested in different persons, a 
 common recovery under the old law was generally required by a 
 purchaser ; becatise that barred the remainder, while a fine let it 
 into possession, and thereby subjected the whole fee to any in- 
 cumbrance which before affected the reversion only. But unless 
 some incumbrance appeared, or the title to the reversion was not 
 clearly deduced, the court would not compel a vendor to suffer 
 a recovery on account of the mere probability of the reversion 
 having been incumbered.(A)(l) 
 
 30. A sale is valid under a mortgage with a power of sale, 
 although the mortgagor in his answer state that he actually 
 resisted the sale as having been made without his consent and 
 at an undervalue.(i) This is now an established rul^(A;) If the 
 mortgagor is in possession, of course the mortgagee must be 
 prepared to give the purchaser possession ; but if the seller assert 
 that he is ready to give possession, the purchaser must perform 
 his part of the contract in order to enable the seller to perform 
 what he says he can do.(Z) 
 
 31. A power to mortgage does not authorize a mortgage with 
 a power of sale.(m) A power of sale does not in general au- 
 
 (h) Sperling v. Trevor, 7 Ves. 497. being subject to the control of chancery, 
 
 (i) Clay V. Sharpe, C. H. M. T. 1802, when about to be exercised in a, manner 
 
 Lib. Reg. A. 1802, fol. 67, App. Purch. No. opjn-essive to the debtor. See Jackson «. 
 
 12. Henry, 10 John. 18.5 ; Carson v. Blakey, 6 
 
 (k) Baker v. Dibbin, Dibbin v. Baker, Missou. 273 ; Eaton o. Whiting, 3 Pick. 
 
 Ex. April 20, 1812, MS. ; Corder v. Mor- 484, 491 ; Kinsley u. Ames, 2 Met. 29 ; 
 
 gan, 18 Ves. 344 ; Alexander v. Crosbie, 1 Waters v. Eandall, 6 Met. 483, 484; Doo- 
 
 J. & L. 666; 6 Ir. Eq. R. 513; Note, little w. Lewis, 7 John. Ch. 50; Demarest 
 
 Stabback v. Leatt, Coo. 46, which was u. Wynkoop, 3 John. Ch. 144-146 ; Wilson 
 
 taken from a hasty note on a brief, is not, a. Troup, 7 John. Ch. 25 ; 1 Cruise Dig. 
 
 when attentively considered, an authority by Mr. Greenleaf, tit. 15, ch. 1, § 44, in 
 
 the other way; see ch. 1, s. 6; Matthie v. note, ch. 6, § l,,in note. A sale under 
 
 Edwards, 2 Col. 465, 11 Jur. 504, 761, de- such a power is final and conclusive as 
 
 pended upon peculiar circumstances ; San- against bond fide purchasers, and it. is a 
 
 ders V. Richards, 2 Col. 568 ; as to notice foreclosure and bar to the equity of re- 
 
 Of sale. Major v. Ward, 5 Hare, 598 ; Ash- ,dMnption. See cases above cited.] 
 worth V. Mounsey, 2 Com. L. R. 418; see (I) Allen v. Martin, 5 Jur. 239.' 
 supra, p. 65. [The validity of suet a power (m) Clarke v. Roy. Panppticon, 4 Drew, 
 
 of sale is now generally admitted as well 26. [See Russell u. Plaice, 18 Beav. 
 
 in the United States as in England; it 21.] 
 
 (1) This is allowed to remain as an illustration of the doctrine, and as applicable 
 to existing titles, although the law is now altered by the 3 & 4 Will. 4, c. 74. 
 
592 EQUITABLE TITLE. [CH. X. § III. 
 
 thorize a mortgage, but where the object of the power is to raise 
 a charge subject to which the estate is settled, a mortgage may- 
 be supported. (w) Where trustees were directed to raise charges 
 out of the rents, or by such other ways (except a sale or sales) 
 as they might think proper, it was held that they could not mort- 
 gage, (o) 
 
 32. We have seen that where an act of bankruptcy has been 
 committed, the purchaser cannot be compelled to take the title, 
 although the vendor swear that he owes no debt upon which a 
 commission can issue, and the purchaser cannot disprove the 
 5tatement.(j9) And upon the same principle, a purchaser who 
 has become bankrupt * cannot compel a conveyance of the estate 
 to him ; because he cannot satisfy the vendor that he will be 
 entitled to jretain the purchase money.(g')(l) 
 
 33. A purchaser from a father, who was tenant for life, and 
 obtained a conveyance from his son, who was tenant in tail in 
 remainder, in consideration of a life annuity, and a debt due to 
 the father, is entitled to evidence that the debt was due, and of 
 the fairness of the transaction. (r) 
 
 34. The rule that a purchaser will not be compelled to take 
 an equitable title does not extend to estates sold under the 
 decree of a court of equity, where the legal estate is vested in 
 
 (n) Stroughill v. Anstey, 1 De G., M. administrator de bonis non of the testatoi-, 
 
 & G. 645 ; Page v. Cooper, 16 Beav. 396. durante absentia of his next of kin, and the 
 
 (o) Benett v. Wyndham, 3 Jur. N. S. purchaser paid the usual deposit, but re- 
 
 1143. [A lease is, prima yacie, not within fused to complete on discovering the 
 
 the scope of a trust for sale. Evans v. nature of the vendor's title ; it was held, 
 
 Jackson, 8 Sim. 217.] that although the effect of the grant during 
 
 {p) Lowes V. Lush, 14 Ves. 547. Cann the lifetime of the absent principal would 
 
 V. Cann, 1 Sim. & Stu. 284. [See Rich- have been perfectly valid, yet inasmuch as 
 
 mond V. Gray, 3 Allen, 25; Cook v. Daw- the principal might at the time of sale have 
 
 son, 29 Beav. 123 ; 3 De G., F. & J. 127 ; been dead, the title was not such as the 
 
 Leigh V. Lloyd, 2 De G., J. & S. 330; purchaser was bound to accept ; and the bill 
 
 Bridges v. Longman, 24 Beav. 27 ; Scher- for specific performance was thereupon dis- 
 
 merhom v. Niblo, 2 Bosw. 161, 165.] missed, and the deposit, with interest, was 
 
 (q) Franklin v. Ld. Brownlow, 14 Ves. ordered to be refunded. Webb v. Kirby, 7 
 
 550. |,So where in the particulars of sale De G., M. & G. 376.] 
 
 of certain leaseholds, the premises were (r) Boswell v. Mendhara, 6 Mad. 373; 
 
 stated to be sold "by order of the execu- see Savery v. King, 5 H. L. Cas. 627. 
 tors," and they were in fact sold by the 
 
 (1 ) But where the purchaser has not notice he is safe ; see post. 
 
 [397] 
 
CH. X. § III.] PURCHASE UNDER A DECREE. 593 
 
 an infant.(r^) In a case (s) where, upon sale of an estate before 
 a master, in pursuance of a decree under Lord Waltham's will, 
 the purchaser objected to the title, on the ground of the legal 
 estate being in an infant ; Lord Rosslyn, without the least hesi- 
 tation, compelled the purchaser to take the title, making his 
 decree for the infant to convey in the usual form ; because, as 
 the purchaser bought under the decree, he was bound to accept 
 such a title as the court could make him.(s^) Nor, if the estate 
 were copyhold, would the court retain any part of the purchase 
 money in order to defray the expense of the fine that would be 
 payable, in case the infant heir should die before he surren- 
 dered. (<) This rule applies only when the legal estate is out- 
 Standing, without any claim of interests on the part of the 
 person in whom it is vested. Therefore where an estate was 
 sold by the court to pay the debts of an ancestor, judgments 
 against an heir were deemed to be an objection, as the creditors 
 were not parties to the suit, and they might issue execution 
 against the estate.(M) 
 
 35. Nor does this rule apply to a sale under a decree of a 
 copyhold estate for payment of debts with which the estate was 
 charged, where the conditions of sale provided that the sellers 
 should procure the surrenders, and the remainder-man had gone 
 abroad, and so a surrender from him could not be obtained.(a;) 
 
 36. Nor although the sale is under a decree can equity make 
 a man take a title which he is to support by a bill for an injunc- 
 tion. (2^) 
 
 37. And although a purchaser under a decree will be compelled 
 to accept a title orthis nature, yet, if he sell the estate, the court 
 will not enforce a specific performance against the second pur- 
 chaser. This "was also decided by Lord Rosslyn in Lord Wal- 
 
 (ri) [See Treelaiid v. Pearson, L. R. 7 bill for specific performance, the vendee 
 
 Eq. 246.] will not be compelled to take a title found- 
 
 (s) Lord Waltham's case, Ch. MS. ; 3 ed on a decree against an infant, because 
 
 Swan. 566 ; Chandler v. Beard, 1 Dick, the latter may show cause against it when 
 
 392 ; Craddock v. Piper, 14 Sim. 310 ; but of age.]. 
 
 a purchaser under a decree will not be com- (t) Morris w.^Clarkson, 1 J. & W. 604, 
 
 pelled to take a doubtful title ; Marlow v. n. ; 3 Swan. 558. 
 Smith, 2 P. Wms. 201. («), Craddock v. Piper, 14 Sim. 310. 
 
 (gi) [But see Bryan v. Read, 1 Dev. & (x) Noel v. Weston, Coo. 138. 
 Bat. Eq. 86, where it was held that, on a {y) Shaw v. Wright, 3 Ves. 22. 
 VOL. I.. 38 [398] 
 
694 REMEDY UNDER TRUSTEES' ACT. [CH. X. § III. 
 
 tham's case.(z) The purchaser of Lord Waltham's estate sold 
 the estate to a person who objected to the title upon the same 
 ground as he had objected to it, and refused to conaplete the 
 contract. The first purchaser very confidently filed a bill for a 
 specific performance, but Lord Rosslyn dismissed it; because 
 such second purchaser did not buy under the decree, and therefore 
 was not compellable to accept an equitable title. 
 
 38. But where the estate is not sold by the court, although 
 the purchaser agree to go before the chief clerk upon a reference 
 of title in a suit in court for the administration of the estate, yet 
 he is not bound to take an equitable title.(a) 
 
 39. In a case where a seller after the contract died intestate, 
 leaving an infant heir, who filed a bill against the purchaser, 
 praying that he might elect either to complete or abandon the 
 contract ; and the purchaser submitted to perform the contract, 
 and paid the purchase money into court, the court refused to pay 
 it out without the consent of the purchaser during the infancy 
 of the heir. (6) 
 
 40. In another case, where after a contract for sale the seller 
 died intestate, leaving an infant heir, and his widow, who was 
 his administratrix, filed a bill for a specific performance against 
 the purchaser and the heir, it was decreed, and a day given to 
 the heir to show cause.(c) But the objection, that the purchaser 
 was not bound to accept the title in consequence of the infancy 
 of the heir, was not taken, (rf) 
 
 41. The act of the 1 Will. 4, to which we have already re- 
 ferred,(e) removed most of these anomalies by enabling the 
 court to make a good legal title. And a devisee subject to a 
 charge, who refused to convey after a sale under a decree with 
 an order that all proper parties should join in the conveyance 
 might be divested of his estate by a conveyance by a third party 
 under the direction of the court.(/) By a later act, an executor 
 or administrator of a mortgagee entitled to the mortgage money, 
 
 (z) MS. ; Powell v. Powell, 6 Mad. 53. (e) Sup. ; Jemmett on the Statutes ; 
 
 (a) Cann v. Cann, 1 Sim. & Stu. 284. Price v. Carver, 3 My. & Cra. 157 ; Jones 
 
 (6) Bullock V. Bullock, 1 J. & W. 603. u. Ham, 3 Ir. Eq. E. 65. 
 
 (c) Holland v. Hill, EoUs, 18 Mar. 1818, (/) 1 Will. 4, c. 60, ». 8 ; 3 Vict. c. 60 ; 
 
 MS. Eobinson v. Wood, 5 Bfiav. 246. 
 
 {d) King V. Turner, 2 Sim. 549. [See 
 Bryan v. Kead, 1 Dev. & Bat. Eq. 86.] 
 
CH. X. § III.] PRESUMPTION OF CONVEYANCE. 695 
 
 was authorized, upon redemption, to convey the legal estate in 
 the land where possession had not been taken by virtue of the 
 mortgage, and no action or suit was depending ; (g") but this 
 provision was repealed, as from the first of October, 1845. (A) 
 And DOW the 13 & 14 Vict. c. 60, to which we have already 
 referred, enables the court in all such cases to make an effectual 
 transfer of * the estate by order or by actual conveyance.(t) And 
 by the later act of 15 & 16 Vict. c. 55, s. 1, where a court of 
 equity has decreed a sale of lands for any purpose whatever, 
 every person seised or possessed of such land, or entitled to a 
 contingent interest therein, being a party to the proceeding in 
 which the order is made, and bound by it, or being otherwise 
 bound by it, shall be deemed to be so seised or possessed upon 
 a trust within the meaning of the act of 1850 ; and the court, if 
 it shall think it expedient for the purpose of carrying such sale 
 into ^effect, may make a vesting order for such estate as the court 
 shall think fit, in any purchaser or in such other person as the 
 court shall direct, to which the same effect is given as if such 
 person had been free from all disability, and had duly executed 
 all proper conveyances and assignments of such lands. The 
 court may therefore now, in the case of a sale by which the seller 
 becomes constructively a trustee for the purchaser, make an order 
 upon a sale without requiring a bill to be filed. (&) 
 
 42. Although an estate is not sold under a decree, and the 
 legal estate appears to be outstanding, and cannot be got in, yet, 
 if the circumstances of the case are such as would induce a court 
 of law, under those grounds upon which presumptions are in 
 general raised, to presume a reconveyance, the purchaser will be 
 compelled to take the title.(/) The old rule was, that a vendor 
 
 (jr) 7 & 8 Vict. c. 76, s. 9. Emery v. Grocock, Ex parte Holman, po.'sf, 
 
 (A) 8 & 9 Vict. c. 106, s. 1 ; see In re ch. 15, s. 4 ; but see Goodright v. Swym- 
 
 EUerthorpe, 18 Jur. 669 ; In re Meyrick's mer, 1 Keny. 385 ; Keene v. Deardon, 8 
 
 Estate, 9 Hare, 136, 820 ; In re Boden, 9 East, 248 ; Doe v. Brightwen, 10 East, 583, 
 
 Hare, 820, 1 De 6., M. & G. 57 ; In re which show that the circumstance of the 
 
 King's Mortg. 5 De G. & Sm. 644. equitable estate being in the person who 
 
 (i) Sugd. Stat. 2d edit. ch. 9, p. 410. claims the benefit of the presumption, is 
 
 {k) In re Angelo, 5 De G. & Sm. 278, not sufficient of itself to raise it; Barn. 
 
 gu. the application of s. 35 ; see In re well v. Harris, 1 Taunt. 430 ; Doe v. Cal- 
 
 Burt, 9 Hare, 289; In re Probert, 1 Kay, vert, 5 Taunt. 170; Cooke v. Soltau, 2 
 
 420 i In re Carpenter, lb. 418. Sim. & Stu. 154; lOB. & C. 312 ; Noeli). 
 
 (Z) Hillary v. Waller, 12 Ves. 239; 
 
 [399] 
 
596 
 
 EQUITABLE OBJECTIONS AT LAW. [CH. X. § III. 
 
 was bound to get in all outstanding legal estates, which were 
 not barred by the statute of limitations. And now that the time 
 is shortened by the new statute of limitations, there is less room 
 than before for presuming a conveyance of a legal estate against 
 a purchaser. A distinction has been taken, that if before a jury 
 it would be the duty of a judge to give a clear direction in favor 
 of the fact of conveyance, then it is to be considered as with- 
 out reasonable doubt; but if it would be the duty of a judge 
 to leave it to the jury to pronounce upon the effect of the evi- 
 dence, then it was too doubtful to conclude a purchaser.(vM) But 
 now, in most cases, an outstanding legal estate may be got in 
 under the provisions of the trustees' acts of 1850 and 1952. In 
 a singular case (n) where in an ancient demise for two thousand 
 years for a price paid at a nominal rent, the lessor covenanted, if 
 called upon within seven years, to convey the fee, a purchaser in 
 1860 was compelled to take the title upon the presumption that 
 the fee had been conveyed, "arising from the dispositions of the 
 property since the demise, although the tenure had at times been 
 treated as freehold or leasehold and in two instances as lease- 
 hold. 
 
 11. As to the Cases at Law : — 
 
 43. A court of law can, of course, decide upon the validity of 
 a title, however ambiguous or doubtful the construction may ap- 
 pear to be. Whether courts of law were at liberty to follow in 
 the footsteps of equity, and to hold that a title may be too 
 doubtful to be forced on a purchaser, is a question upon which 
 eminent judges have differed (1) with each other, and even with 
 themselves. But it appears to be ultimately settled that courts 
 of law cannot adopt the equitable rule, and are bound to decide 
 the legal question upon which the right to recover must depend. 
 The courts have taken no distinction between the cases where 
 the purchaser is plaintiff, and where he is defendant. Where he 
 
 Bewley, 3 Sim. 103; Doe u. Davies, 1 Q. (m) Emery v. Groeock, 6 Mad. 54. 
 B. 430. (n) JeiFreys v. Machu, 29 Beav. 344. 
 
 ( 1 ) For the purchaser, where the title is deemed doubtfiil, Hartley v. Pehall, Peake, 
 131 ; Wilde v. Fort, 4 Taunt.j334; Curling v. Shuttleworth, 6 Taunt. 121. For de- 
 ciding the point, and binding the purchaser, Oxenden v. Skinner, 4 Gwil. 1513 ; Rom- 
 illy V. James, 1 Mars. 600; 5 Taunt. 626, 627; Boymau v. Gutch, 7 Bing. 390 ; and 
 see Simmons v. Heseltine, 5 C. B. 554. 
 
 [400] 
 
CH. X. § m.] EQUITABLE OBJECTIONS AT LAW. 597 
 
 is plaintiff, he, of course, by this rule encounters the risk of be- 
 ing compelled to take a title which a court of equity would not 
 force upon him ; a purchaser, therefore, should not bring an ac- 
 tion, if he can avoid it, where the title is of a doubtful nature. 
 Where the seller brings an action, the purchaser may avoid the 
 strict rule of law by filing a bill for a specific performance, or for 
 his deposit:, if a good title cannot be made, taking care not to 
 allege that the seller cannot make a title.(o) 
 
 44. But at law it is, of course, fatal to the title that a right 
 exists to defeat it. Therefore, where a lessee sells his lease, and 
 in consequence of a breach of covenant the lessor has a right to 
 reenter, the purchaser, although the lessor has taken no step to 
 enforce his right, may recover his deposit.(;o) And where the 
 title is dependent on a question of fact, which it is impossible to 
 regard as reasonably certain, such a title will not at law be 
 deemed a good or sufficient title as between vendor and pur- 
 chaser.(g') 
 
 45, After some difference of opinion it appears to be settled, 
 as no doubt the rule should be, that even in a court of law equi- 
 table objections to a title may enable a purchaser to resist a con- 
 tract, or to rescind it,(l) for although a court of law has only to 
 administer the * legal rights which arise out of the contract, yet 
 one of those rights is to have a good title in equity. In a late 
 case, three judges held that a good title to mortgage land was 
 not shown, if the title was not such as a court of equity would 
 force upon an unwilling party, whilst the remaining judge held 
 that in a court of law the only question was whether the title 
 
 (0) Supra. V. Boyd, 8 Ala. 375 ; Tyler v. Ybucg, 2 
 (p) Penniall v. Harborne, 11 Q. B. 368. Scam. 444; Myers v. Aikman, 2 Scam. 
 (q) Simmons u. Heseltiuc, 5 C. B. 554. 452; Duncan v. Charles, 4 Scam. 561. 
 
 [In an action to recover the whole or part But the burden of proving the want of 
 
 of the purchase money of lands sold, proof title is on the purchaser in such action, 
 
 of a want of title to the property in the Breithaupt v. Thurmond, 3 Rich. 216; 
 
 vendor, is a complete defence in law and Pyles v. Reeve, 4 Rich. 555 ; Crawford v. 
 
 in equity, and such evidence is admissible. Murphy, 25 Penu. St. 84.] 
 Miles V. Stevens, 3 Barr, 21 ; Whitehurst 
 
 -. -. : ^ ^ 
 
 (1) For admitting equitable objections, Elliot w. Edwards, 3 Bos. & Pul. 181 (see 
 Johnson V. Johnson, lb. 162) ; Maberley v. Robins, 5 Taunt. 625, 1 Mars. 258; see 
 Simms v. Marryat, 20 L. J, N. S. Q. B. 454. For excluding such objections, Alpass v. 
 Watkins, 8 T. R. 516. Willett v. Clarke, 10 Pri. 207, is not an authority against ad- 
 mitting equitable objections ; see Simmons v. Heseltine, 5 C. B. 554. 
 
 [401] 
 
598 
 
 LEGAL TITLE : EQUITABLE OBJECTIONS. [CH. X. § III. 
 
 was good or bad ; (r) and, in a later case, an equitable objection 
 was held to give a purchaser a right to recover his deposit, and 
 this without reference to the aid of the legislature.(s) But the 
 legii<lature has set this point at rest, by enacting that equitable 
 defences may be expressly made at \a.\v,(t) but the plaintifT may 
 reply facts which avoid the defence on equitable grounds. A.nd 
 if the court or judge think that the equitable jurisdiction cannot 
 be dealt with by a court of law so as to do justice, the equitable 
 plea or equitable replication may be struck out on such terms as 
 may seem reasonable. (m) Where an agreement by mistake on 
 the part of the lessor did not contain a stipulation for a premium, 
 although mentioned by him to his agent, but which was not com- 
 municated to the intended lessee, the mistake was held to be no 
 answer to an action by the latter, whether by way of equitable 
 defence or otherwise, (x) 
 
 46. The enactment is that the defendant in any cause in which, 
 if judgment were obtained, he would be entitled to relief against 
 such judgment upon equitable grounds, may plead the facts by 
 way of defence. The expression, " equitable grounds," means 
 grounds dependiiig upon the laws by which courts of equity are 
 governed, and not upon the course and practice of those courts; 
 and, therefore, a defendant may plead a bad plea in defence at 
 law, and yet be entitled upon the course of the court to relief in 
 equity.(2/) 
 
 47. The difficulty, of course, only arises where the seller can 
 make a legal title, although there is an equitable objection to it, 
 for, if the contract is general, it amounts to an undertaking for 
 the conveyance of a legal estate ; and if the seller have no more 
 than an equitable one, the contract is not binding upon the pur- 
 chaser at law,(z) nor, as we have seen, in equity, if the seller 
 cannot procure the legal estate. 
 
 48. As an executor may sell a leasehold estate before a decree, 
 although a creditor has filed a bill for the administration of the 
 
 (r) Jeakes v. White, 6 Ex. 873; Bu- (u) 17 & 18 Vict. i;. 125, b. 83-86 ; Teede 
 chanan v. Poppleton, 4 C. B. N. S. 20. v. Johnson, 11 Ex. 840. 
 
 (s) Stevens v. Austen, 7 Jur. N. S. {x) Wood v. Scarth, 1 'EoL & Fin. 293. 
 873. iy) Phelps v. Prothero, 7 De 6., M. &, 
 
 («) Clerk V. Laurie, 1 H. & N. 452. G. 722. 
 
 (z) Cane v. Baldwin, 1 Star. 65. 
 
CH. X. § III.] DOUBTFUL TITLES UPON FACT,S. , 599 
 
 deceased's estate, a court of law takes judicial notice of this rule 
 and acta upon it.(a) 
 
 49. Lastly, as to titles depending upon questions of fact, a 
 court *of equity deals with questions of fact upon the same 
 principle as upon questions of law. If the fact be of such a 
 nature as does not admit of proof, the court will not compel a 
 purchaser to accept a title depending upon it. In law, strictly 
 speaking, there is no doubt, but practically there is often a doubt 
 as to the application of settled principles. In matter of fact, 
 there is doubt, where the testimony is direct, because it may be 
 given maid fde, or, if bond fide, by mistake. Courts of equity 
 are compelled to grapple with these difiiculties.(6) A court of 
 equity now has power to cause any question of fact arising in 
 any suit or proceedings to be tried by a special or common jury 
 before the court itself.(c) The act means that questions may be 
 referred to a jury only where, under the old practice, the parties 
 could have had an issue either at the hearing or upon an interloc- 
 utory application, (rf) 
 
 50. Where,(e) after a contract had been entered into, the seller 
 executed a deed which was held to amount to an act of bank- 
 ruptcy, although the seller in his examination swore that he owed 
 no debt upon which a commission could issue, and the purchaser 
 could not disprove the statement, and the master reported in 
 favor of the title, the court refused to compel the purchaser to 
 take the title. There was no defect in title, properly speaking, 
 but the party could not give the estate, as ultimately it might 
 not be his, but the estate of the assignees.(/) 
 
 51. Upon the same principle, where {g) the title depended upon 
 a deed executed by the seller, which, it was contended,' was either 
 a fraudulent preference or an act of bankruptcy, the court held 
 
 (a) Neeves v. Burrage, 14 Q. B. 504, a (d) Bradley v. Bevington, 4 Drew. 511 ; 
 plea of statute of limitations ; a replication see Wicks v. Hunt, John. 372. 
 
 of fraud not permitted. Hunter v. Gibbons, (e) Lowe v. Lu sh, 14 Ves. 547. 
 
 1 H. & N. 459. (/) 14 Ves. 557. [See Richmond v. 
 
 (b) 6 Mad. 57, per V. C. ; Kirkwood v. Gray, 3 Allen, 25 ; Hayes o. Harmony 
 Lloyd, 12 Ir. Eq.K. 585; Spencer ti. Top- Grove Cemetery, 106 Mass.; Schermer- 
 ham, 22 Beav. 573. horn v. Kiblo, 2 Bosw. 161 ; Webb v. 
 
 (c) 21 & 22 Vict. c. 27 ; 25 & 23 Vict. Kirby, 7 De G., M. & G. 376, ante, 397, 
 c. 42. note.] 
 
 (g) Hartley v. Smith, Buck,.360. 
 
 [402] 
 
600 DOUBTFUL TITLES UPON FACTS. [CH. X. § m. 
 
 that equity ought not to compel the purchaser to accept the title, 
 because, assuming it not to be fraudulent ex facie, it still might 
 be avoided by circumstances extrinsic, which it was neither in 
 the power of the purchaser nor of the court to reach. (g-^) 
 
 52. So where a testator, who appeared to be seised of the en- 
 tirety of an estate, devised his undivided moiety or half part of 
 it, and all other his shares, proportions, and interests, if any 
 therein, and no evidence appeared that he had. not the entirety, 
 and the words were sufficient if he had to pass it. Lord Eldon, 
 though of opinion that the title was good, refused to force the 
 title on a purchaser. (A) 
 
 53. In Nouaille v. Greenwood,(i) a recital in a will stated that 
 the testator's wife had passed a fine of her estate, and had set- 
 tled the same in trustees, and had given them a power to raise 
 500/. * A recovery was suffered by the wife, who survived the 
 husband, although no estate tail was shown, and a mortgagee, 
 to whom she had previously conveyed in fee, did not concur. If 
 a legal estate tail had been created, the recovery was bad, and it 
 was insisted that such was the presumption from the recital of 
 a settlement, and from the recovery ; but Lord Eldon said that, 
 although the expressions in the recital were inaccurate, the pre- 
 sumption seemed to be that the legal estate was vested in the 
 trustees, and if the legal estate was in the trustees, he thought 
 the recovery a good equitable one. 
 
 54. In the above case Lord Eldon relied upon the continued 
 enjoyment under the title as made out, and also upon a transfer 
 of mortgage to Mr. Baron Smyth, in 1746 ; for he said, although 
 at the time of that transfer there was no evidence that he had all 
 the antecedent instruments before him, yet it was a strong thing 
 to say that the title was not examined ; we ought to give credit 
 to men of eminence in the profession who were dealing for their 
 own security, and therefore must conceive that the title was not 
 accepted without examination. 
 
 55. So in a later case,(4) where the devise was to such child 
 who should be brought up and educated as a member of the 
 established Church of England, and should be a constant fre- 
 
 (g^) [See Gans v. Kenshaw, 2 Barr, 34.] (i) Tur. & Rus. 26. 
 (A) Stapylton v. Scqtt, 16 Ves. 272; (h) Smith u. Death, 5 Mad. 371. 
 Magennis v. Fallon, 2 Mo. 580. 
 [403] 
 
CH. X. § m.] DOUBTFUL TITLES UPON FACTS. 601 
 
 quenter thereof, it was objected, that this description was in its 
 nature of uncertain proof, and was, in fact, inadequately proved ; 
 Leach V. C. held, that it could not be insisted that a purchaser 
 was not bound to take a title which in some measure depended 
 upon matter of fact; that in the present ease it did appear to 
 him that the fact was capable of proof, and was satisfactorily 
 proved. 
 
 56. And where. the title depended upon a will, by which the 
 estate was given to a cousin, if living at a given period, in fee ; 
 and if not, to her issue in fee ; and there was a codicil ih which 
 the testator stated that he had, by his will, devised to J. A. in 
 fee, as therein mentioned; J. A. was the son of the cousin, and 
 therefore really a devisee in the will, although not nominalim. 
 The inaccurate reference in the codicil was held to be no objec- 
 tion to the title,(^) as it did not lead to the presumption of an- 
 other will. 
 
 57. A purchaser has been compelled to take a title depending 
 upon the construction of an ill-penned shifting clause requiring 
 the devisee to live and reside on the estate, although the fact of 
 residence in a strict sense was not made out.(»i) The title 
 therefore depended upon a question of law, and one of fact, both 
 of difficult solution. 
 
 58. But where a point of law was considered to be unsettled, 
 although there was a decision upon it, e. g. whether a power by 
 deed or deeds, writing or writings, under hand and seal, was 
 within the new * statute of wills requiring testamentary powers 
 to be signed only, the court refused to force the title upon a pur- 
 chaser.(«) 
 
 59. Where a purchaser had notice of judgments, and the valid- 
 ity of the title depended upon the vendor's allegation that he 
 purchased without notice of them, the purchaser was not com- 
 pelled to accept the title.(o) 
 
 60. Where a doubt has been raised upon a pedigree in a title, 
 the court has directed an issue to try the fact, making the pur- 
 chaser the defendant. In such a case a new trial will be granted 
 
 (I) Howarth v. Smith, 6 Sim. 161. (n) Collard-w. Sampson, 4 De G., M. & 
 
 (m) Pillingham v. Bromley, Tur. &, G. 224 ; see Sugd. Pow. 8th edit. p. 217. 
 Rus. 530; 3 Drew. 480. (o) Freer w. Hesse, 4 De G., M. & G. 
 
 495 ; sup. pi. 28. 
 
 [404] 
 
602 DOUBTFUL TITLES UPON FACTS. [CH. X. § HI. 
 
 or refused upon the ordinary rules of evidence. (/>) It is certainly 
 a strong measure to try such a question behind the back of the 
 party who would be entitled if the seller's title failed. 
 
 61. There are many cases in which a jury will collect the fact 
 of legitimacy from circumstances in which it might be attended 
 with so much reasonable doubt, that equity would not compel 
 a purchaser to take it merely because there was such a verdict. 
 The court ought to weigh whether the doubt is so reasonable 
 and fair that the property is left in his hands not marketable. (9) 
 
 62. In a case where it was argued that difficulties appeared 
 from the abstract that could not be altogether accounted for, un- 
 less upon some doubt of legitimacy, and evidence of rumors of 
 illegitimacy was proposed before the master, Lord Eldon ob- 
 served, that it would be very dangerous for the master to be at 
 liberty to receive such evidence and to call for proof of legiti- 
 macy ; that under the circumstances, strong in favoro f legiti- 
 macy, if the -question was between those parties, it could not, 
 though the register of i;narriage could not be produced, be stated 
 to a jury as an inference fairly questionable. It was, he admitted, 
 very different as to a purchaser. But the court ought to hesitate 
 long before it would act upon such grounds to the destruction 
 of legitimacy not appearing to have been ever called in ques- 
 tion. (r)(l) 
 
 63. And where the title depends upon a fact which is left in 
 ' doubt, a court of law will act upon the doubt as well as a court 
 of equity. In a case before Lord Kenyon, where the estate sold 
 was alleged to be subject to a right of common every third year, 
 he said, if there was any color for the claim, that was sufficient 
 
 {p) Edwards v. Harvey, Coo..39. (r) Ld. Braybroke v. Inskip, 8 Ves. 417. 
 
 (s) 8 Ves. 428, not decided. 
 
 (1) The 21 & 22 Vict. o. 93, enables any natural born subject, or any person whose ' 
 right to be deemed a natural bom subject depends wholly or in part on his legitimacy, 
 or on the validity of a marriage, being domiciled in England or Ireland, or claiming 
 any real or personal estate in England, to apply to the court of divorce for a decree to 
 establish the legitimacy and the validity or invalidity of the marriage in question ; In 
 re Shedden, 5 Jur. N. S. 151 ; Shedden v. Attorney General, 6 Jur. N. S. 1163 ; Shed- 
 den V. Patrick, 2 Swa. & Trist. 170 ; the case is now before the House of Lords ; Bou- 
 verie V. Attorney General, 31 L. J. N. S. P. & M. 79 ; Sugd. Stat. 2d edit. p. 271. A 
 bill to enable parties to require a jury was introduced in the Lords this session, 1862 ; 
 but, for sufficient reasons, was allowed to drop. 
 
 [405] 
 
CH. X. § III.j DOUBTFUL TITLES UPON FACTS. 603 
 
 to entitle the purchaser to avoid the bargain ; he was not obliged 
 to buy a lawsuit.(s)(l) 
 
 (s) Gibson v. Spurrier, Peake Ad. Ca. 49. 
 
 (1 ) The following iilassification of several cases by Mr. Dart, where titles have, upon 
 questions of construction, law, or fact, been considered by courts of equity to be good , 
 or bad, or too doubtful to be forced upon a purchaser, may be found of use : 
 
 1 . Construction — Title held good on questions of: — Warneford v. Thompson, 3 Ves. 
 513, obscure power of sale; Jones v. Price, U Sim. 557 ; Lane v. Debenhara, 17 
 Jur. 1C05; 11 Hare, 788, power of sale in surviving trustee; Lord Eendlesham v. 
 Meux, 14 Sim. 249, discretionary power of sale; Mather v. Norton, 21 L. J. 15, V. 
 C. P., validity of power of sale ; Young v. Roberts, 15 Bear. 558 ; Saloway v. Straw- 
 bridge, 1 Kay & J. 371 ; affirmed 7 De 6., M. & G. 594 ; Hind v. Poole, 1 Kay & 
 J. 383 ; Tracy v. Lawrence, 2 Drew. 403, validity of mortgage power of sale ; Ham- 
 ilton V. Buckmaster, power of sale in executor over real estate ; Hall v. May, 3 Kay 
 & J. 505, competency of devisee of surviving trustee to make good title ; Balfour v. 
 Welland, 16 Ves. 151, competency of trustees to give discharge for purchase money ; 
 Peers v. Sneyd, 17 Beav. 151, power of agent to contract to grant lease; Lord Bray- 
 broke V. Inskip, 8 Ves. 417 ; Rushton v. Craven, 12 Pri. 599 ; Jenkins v. Herries, 4 
 Mad. 67 ; Wood v. Richardson, 5 Jur. 623 ; Clonmert v. Whitaker, 2 Jarm. Wills 
 (3d edit.), 345; Beaumont u. Lord Salisbury, 19 Beav. 198; [Sohier v. Williams, 1 
 Curtis C. C. 479,] what estate taken under will or settlement ; Fillingham v. Brom- 
 ley, Turn. & R. 530, clause of forfeiture for nonresideuce ; Nichols v. Hawkes, 10 Hare, 
 342, duration of annuity charged on estate. 
 
 2. Construction — Title held bad or doubtful on questions of: — Sheffield v. Lord 
 Mulgrave, 2 Ves. jr. 525, whether lease for lives passed by will or devolved on heir as 
 special occupant; Willcox v. Bellaers, Turn. & R. 491, and see Pyrke v. Wadding- 
 ham, 10 Hare, 1 ; Freer v. Hesse, 4 De G., M. & G. 495; Goldney u. Crabb, 19 Beav. 
 338 ; whether devise gave an estate tail, Playford v. Hoare, 3 Y. & J. 175, estate taken 
 under will ; whether legal or equitable, so as to let in the rule in Shelley's case ; Col- 
 more V. Tindal, 2 Y. & J. 605, legal estate where vested under limitations in a settle- 
 ment (but see Beaumont v. Lord Salisbury, 19 Beav. 198) ; Okeden v. Clifden, 2 
 Russ. 309, whether a general devise of estates " in the kingdom of England " passed 
 an estate in Wales ; Sharp v. Adcock, 4 Euss. 374, whether the fee passed by a devise 
 without words of inheritance ; Rogers v. Waterhouse, 4 Drew. 329, whether the fee 
 passed under the word "estate " ; Nicholson v. Wright, 5 W. R. 431, as to validity of 
 appointment of new trustees ; Ashton u. Wood, 3 Jur. N. S. 1164, 3 Sm. & G. 436 ; 
 Stevens v. Austen, 7 Jur. N. S. 873, as to competency of devisee of surviving trustee 
 to make a good title ; Collier v. McBean, L. R. 3 Eq. 323, L. R. 1 Ch. Ap. 81, estate 
 taken by trustees under a will ; Cooper v. Denne, 4 Bro. P. C. 80, & 1 Ves. jr. 565, 
 construction of leasing power; Crewe w. Dicken, 4 Ves. 97 ; and Wilson v. Bennett, 5 
 De G. & S. 475, power to sell and give receipts; Price v. Strange, 6 Mad. 159, mean- 
 ing of. the expression, " legal representative or representatives " ; Casamajor i>. Strode, 
 2 Myl. & K. 706, construction of inclosure act ; Earl of Lincoln v. Arcedeckne, 1 CoU. 
 98, extent of descriptive words in schedule to private act ; NouaMe v. Flight, 7 Beav. 
 521, extent of covenants. 
 
 3. Law — Titles held good on questions of: — Burnaby u. Griffin, 3 Ves. 271, and 
 Nouaille v. Greenwood, Turn. & R. 26, validity of recovery ; Vick v. Edwards, 3 P. 
 Wms. 372, title by fine and estoppel ; Walker v. Bentley, 9 Hare, 629, merger of tithe »" 
 
604 DOUBTFUL TITLES UPON FACTS. [CH. X. § IIL 
 
 Smith V. Death, 5 Mad. 371, extinguishment of power of appointment by a recovery; 
 Stanhouse v. Gaskell, 17 Jur. 157, title depending upon doctrine of election ; Lut- 
 wytch V. "Winford, 2 Bro. C. C. 248, excessive sale by court ; Powell v. Powell, 6 Mad. 
 53, non-joinder of infants on sale by court; Bishop of Winchester v. Payne, 11 Ves. 
 194, effect of decree of foreclosure on mortgage, incumbrancers not being parties to 
 suit; Edgworth v. Edgworth, 12 Ir. Eq. 81, validity of sale of terms for raising 
 charges, as against infant tenant in tail in remainder ; Dykes v. Taylor, 16 Sim. 563, 
 power of master to sell before report ; Poole v. Shergold, 1 Cox, 160, extent by crown, 
 in hands of sheriff, unexecuted and debt compromised ; Lord Braybroke v. Inskip, 8 
 Ves. 417, sufficiency of general release; Hume v. Bentley, 5 De G. & S. 523, perform- 
 ance or waiver of breach of covenant ; Bridges v. Longman, 24 Beav. 27, waiver by 
 receipt of rent ; Havens v. Middleton, 10 Hare, 641, sufficiency of insurance; Currie 
 V. Nind, 1 Myl. & C. 1 7 ; and Buttesfield v. Heath, 15 Beav. 408 ; title against volun- 
 tary conveyance ; Prosser u. Watts, 6 Mad. 59, non-production of early deeds ; Ex 
 parte Holland, 4 Mad. 483, validity of bargain and sale of copyholds, from commis- 
 sioners in bankruptcy, direct to purchaser ; ■ Minet v. Leman, 20 Beav. 269 ; 7 De G., 
 M. & G. 340, validity of exchange of land of different tenures by inclosure commis- 
 sioners ; Lodge v. Lyseley, 4 Sim. 70, validity of power of sale, as against subsequent 
 judgments ; Biddle v. Perkins, 4 Sim. 135 ; Powis v. Capron, lb. 138, n. ; Nelson v. 
 Callow, 15 Sim. 353, validity of unlimited power of sale; Russell v. Plaice, IS Beav. 
 21, validity of power of sale in mortgage by administratrix ; and see Selby v. Cooling, 
 23 Beav. 418 ; Bridges v. Longman, 24 Beav. 27 ; Re Chawner's Will, L. R. 8 Eq. 
 569 (but see Sanders v. Richards, 2 Coll. 568; and Whitmore v. Drake, 19 L. T. 
 243, where the court refused to insert a power of sale in a mortgage ; and Clark v. 
 Royal Panopticon Co. 4 Drew. 26) ; Bradshaw v. Fane, 3 Drew. 534, title under par- 
 tition ; Glass v. Richardson, 2 De G., M. & G. 658, validity of power to appoint copy- 
 holds ; Peppercorn v. Wayman, 5 De G. & S. 230, that copyholds are within the 21 
 Hen. 8, c. 4, authorizing sale by acting executors ; Kerr v. Pawson, 25 Beav. 394, 
 effect of enfranchisement under the copyhold acts ; Falkner v. Equitable Reversionary 
 Interest Society, 4 Drew. 352, power of mortgagee to sell under special conditions ; 
 Drayson v. Pocock, 4 Sim. 283, power of trustees appointed by court to give receipts ; 
 Howard v. Ducane, Turn. & R. 81, validity of sale to tenant for life whose consent was 
 required to any exercise of the power ; Adams v. Taunton, 5 Mad. 435, pbwer of trus- 
 tees, accepting trust, to give receipts without concurrence of renouncing trustee ; West 
 u. Berney, 1 Russ. & M. 451, validity of settlement by donee of power of appointment 
 and an object of the power ; Walmsley v, Jowett, 23 L. J. 425, extinguishment of power 
 (and see Moody v. Walters, 16 Ves. 283, 312 ; Biscoe v. Perkins, 1 V. & B. 485,493) ; 
 Hasker v. Sutton, 2 S. & S. 573, title founded on the destruction of contingent remain- 
 ders ; Mole V. Smith, Jac. 490, term to be relied on as a sufficient protection against 
 dower ; Scoones v. Morrell, 1 Beav. 251, presumption as to ownership of strips of waste ; 
 Clarke v. Royle, 3 Sim. 499, whether a covenant by a prior purchaser to pay the then 
 vendor an annuity created a lien on the estate. 
 
 4. Law — Title held bad or doubtful on questions of: — Rose v. Calland, 5 Ves. 186, 
 lay impropriator barred by nonpayment of tithes ; Shapland v. Smith, 1 Bro. C. C. 
 75, validity of recovery ; Blosse v. Lord Clanmorris, 3 Bligh, 62, validity of recovery 
 as against reversion in the crown ; Stewart u. Marq. ConyngHam, 1 Ir. Ch. R. 535, 
 effect of a fine ; Jervoise v, Duke of Northumberland, 1 J. & W. 559, trust whether 
 executed or executory, and whether an estate tail ; Sloper v. Fish, 2 V. & B. 145, 
 whether a deed operated as an escrow ; Wheate v. Hall, 17 Ves. 80, validity of power 
 of sale introduced in settlement under decree; Macdonald v. Walker, 14 Beav. 556, 
 
CH. X. § III.] DOUBTFUL TITLES UPON FACTS. 605 
 
 validity of exercise of power of sale by devisee; Blacklow v. Laws, 2 Hare, 40, prema- 
 ture sale under power ; CoUai-d v. Sampson, 4 De G., M. & G. 224, effect of 1 Vict. c. 
 26, on execution of power, and see an article xi. Jur. N. S. 107 ; WoUey v. Jenkins, 
 23 Beav. 53, extinguishment of power ; Bradshaw v. Fane, 3 Drew. 534, whether the 
 ordinary power of sale and exchange authorizes a partition; Cruse v. Nowell, 2 Jur. 
 N. S. 536, validity of power of sale after a surbmortgage ; Langford v. Selmes, 3 K. & 
 J. 220, in estoppel ; Calvert v. Godfrey, 6 Beav. 97, and Gormstone v. Gaunt, 1 Coll. 
 577, 582, jurisdiction of court to sell infant's estate; Craddock v. Piper, 14 Sim. 310; 
 Greycoat Hospital v. Westminster Improvement Commissioners, 1 De G. & J. 531, 
 legal liability to judgments ; Cowgill v. Lord Oxmantown, 3 Y. & C. 369, validity of 
 exchange under a power ; Barclay v. Baine, 1 S. & S. 449, whether covenant for 
 production of deeds ran with land ; Roake v. Kidd, 5 Ves. 647, destruction of con- 
 tingent remainders; Wood v. Beetlestone, 1 K. & J. 213, power of tenant for life of 
 copyholds to bar contingent interests under 1 Will. 4, c. 47 ; Nicloson v. Wordsworth, 
 2 Sw. 365, whether release operated as a disclaimer ; Johnson v. Legard, Turn. & R. 
 281, validity of limitations to collaterals in settlement; Sidebottom w. Barrington, 4 
 Beav. 110, conflicting claims of assignees in bankruptcy and insolvency; Bristow u. 
 Wood, 1 Coll. 483, whether land bound by covenant of which purchaser had notice ; 
 Law V. Urlwin, 16 Sim. 377, merger and breach of trust; Williams v. Bland, 2 Coll. 
 575, sufiiciency of ^jtobate in consistorial court to keep up representation to prerogar 
 tive execut jr. 
 
 5. Fact — Titles held good on questions of: — Maling v. Hill, 1 Cox, 186, possible 
 forfeiture of life estate by donee of power, and consequent extinguishment of power ; 
 McQueen v. Farquhar, 11 Ves. 467, suspicion of fraud insufficient; Green v. Pulsfbrd, 
 2 Beav. .70, notice not followed up by proceedings ; Howarth u. Smith, 6 Sim. 161, 
 reference in codicil, raising question as to the existence of another will ; Simpson v. 
 Gutteridge, 1 Mad. 609, presumed extinction of ancient fee-fai-m rents; Hillary o. 
 Waller, 12 Ves. 239, and Nouaille v. Greenwood, Turn. & R. 26, 29, presumption of 
 reconveyance of legal estate; Gibson v. Clark, 1 J. & W. 159, and Monck u. Hus- 
 kisson, 1 Sim. 280, presumption of ancient grants ; Long v. Collier, 4 Russ. 267, iden- 
 tity of copyholds ; Major v. Ward, 5 H. A. 604, identity of land in respect of which 
 allotments are claimed ; Causton v. Maeklew, 2 Sim. 242, presumption of payment of 
 old judgments ; Emery v. Grocock, 6 Mad. 54, and Townsend v. Champemown, 1 Y. 
 & J. 538, presumption of surrender of term ; presumption of custom in manor ; Goold 
 V. White, Kay, 683 ; Scott v. Nixon, 3 Dru. & W. 388 ; 2 Con. & L. 185 ; and Tuthill 
 V. Rogers, 1 J. & L. 36, 72, bar under statutes of limitations and nullum tempus ; Alex- 
 ander V. Crosbie, 1 J. & L. 66, non-production of old deeds ; Binks v. Lord Rokeby, 2 
 Sw. 224, estate whether tithe free ; Martin v. Cotter, 3 J. & L. 509, reservation of 
 manorial rights, clearly none existing (and see Seaman v. Vawdrey, 16 Ves. 390) ; 
 Flower v. Hartopp, 6 Beav. 476, right of entry which cannot be exercised ; Spencer v. 
 Topham, 22 Beav. 573, title depending on validity of a prior sale by a client to his 
 solicitor. 
 
 6. Fact — Titles held bad or dmbtful an questions of: — Hartley v. Smith, Buck, 
 368, title depending upon the unascertainable hona fides pf the transaction (and see 
 Smith !). Death, 5 Mad. 372) ; LaweS v. Lush, 14 Ves. 547, act of bankruptcy, although 
 no debt shown to exist; Beale v. Symonds, 16 Beav. 406, insufficiency of evidence that 
 a party was merely a trustee ; Boswell !>. Mendham, 6 Mad. 373 (and see Weir v. Cham- 
 ley, 1 Ir. Ch. R. 295), evidence required of fairness of transaction between father and 
 son ; Sloper v. Fish, 2 V. & B.*145, whether a deed operated as an escrow; Stapylton 
 V. Scott 16 Ves. 272, will suggesting a doubt of testator's title; Grove v. Bastard, 2 
 
606 DOUBTFUL TITLES UPON FACTS. - [CH. X. § III. 
 
 Ph. 619, disputed will; Cann v. Cann, 1 S. & S. 284, commission of bankrupt before 
 contract, against vendors, although not proceeded in ; Pierce v. Scott, 1 Y. & C. 257, 
 rotation of sale ; Townsend v. Champernown, 1 Y. & J. 538, identity whether lands 
 parcel of manor; Fort v. Clarke, 1 Russ. 601, insufficient evidence of pedigree; 
 Larkin v. Lord Eosse, 10 Ir. Eq. 70 ; and Shackleton v. Sutcliffe, 1 De G. & S. 609, 
 liability to repairs or easements; "Webb v. Kirby, 3 Sm. & 6. 333; 7 De G., M. & G. 
 376, doubt as to whether a person on whose life the vendor's title depended was in fact 
 alive.