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It is intended in this Work to collect and arrange in alphabetical order of subjects all the useful authorities of English Case Law, from the earliest l^eriod to the present time, on points of general application. The matter under each alphabetical heading is arranged in sections, in an order indicated at the commencement of the heading. The more important and Euling Cases are set forth at length, subject onlj- to abridgment where the original report is unnecessarily diffuse. The effect of the less important or subordinate cases is stated briefly in the Notes. The aim of the Work is to furnish the practitioner with English Case Law in such a form that he will readily find the information he requires for ordinary purposes. The Ruling Case will inform him, or refi-esh his memory, as to the principles ; and the Notes will show in detail how the jDrinciijles have been applied or modified in other cases. The American Notes, by Mr. Irving Browne, are intended j)rimarily or American use ; but it is also considered that, particularly on some points which have been much discussed in American Cases, they may be of consider- able value to practitioners here and in the colonies. Each volume of the Work will contain an Alphabetical Table of Cases reported or referred to ; and when the Work is complete there will be a General Index of Subjects as well as a Table of Cases for the whole. It is estimated that the Work will bo carried out in about 25 Volumes, of the size of an average volume of the " Law Reports " (about 800 pages), and issued at the rate of 5 volumes per annum. *\^* Prospectus yraiis on application. *«* All Standard Law Works are kept in stock, in law calf and other bindings. THE LAW KKLATIXG TO PARTICULAES AND CONDITIONS OF SALE ON A SALE OF LAND. BY WILLIAM FREDERICK WEBSTER, M.A., Ml ' ' OF I.IXCOr.N's INK, ESQ., BARKI.STER-AT-LAW ; LATE WUEWELI. SCHOLAR IX THE UN'IVERSITy OF CAMBRIDGE. LONDON: STEVENS AND SONS, LIMITED, ^nto 4!uI)Ii.'iI)n".') luvir DooI-.-'icIIrn;, 119, CHANCERY LANE. 1889. T LONDON : TEINTED BY C. Y. EOWOETH, GEEAT NEW STEEET, FETTEE lANE. PREFACE. An apology is needed for the publication of a book which seems to enter into competition with, the well- known treatises of Lord St. Leonards and Mr. Dart on '' Vendors and Purchasers." My justification for venturing upon such classical ground is that the limited scope of my Book has enabled me to enter into more detail, and to make a more systematic arrangement of the subject-matter. I have not written a treatise on the whole Law of Vendor and Purchaser, nor have I devoted any part of the Book to the general law of capacity to contract and the validity of contracts, or to the dis- cussion of points of real property law. Part I. of the Book treats of the relation of Vendor and Purchaser from the standpoint of the vendor's duty in prej^aring the joarticulars, and of the purchasers remedies for the vendor's misdescrijDtion ; and Part II. discusses each separate matter dealt with in the usual conditions of sale. My indebtedness to the last edition of Mr. Dart's treatise, both as a guide to the authorities and as an expositor of the law, requires to be acknowledged here. There are very few reported decisions wliicli I have been able to unearth which are not mentioned in Mr. Dart's r/2 -1 Q I I <3. Q IV i'i:r,iA(.'K. book, aiul aro at tlu^ saim' tiiiic wortli mentioning. My c-liicf additions, as regards the substance of the laAV, arc derived from decisions, of which only a portion is men- tioned in the existing text-books — apparently because that portion alone appears in the head-notes of the rejiorts. But I have carefully searched the records for points not appearing or likely to appear in the decisions, more particularly the working out of an order for compensation. It may be added that the references to the records in this Book arc few compared Avitli the decrees, orders, master's rej)orts, &c. which I have insjDccted. I have tried, as far as j)ossible, to avoid a too general fault in legal text-books, — that of citing several authori- ties for each proposition of law. This practice reaches its fullest development in treatises which have been re-edited several times. In such books, not only are authorities unnecessarily accumulated, but criticisms on former authorities are relegated to a foot-note, where it is not at all uncommon to read, after a citation of, say, Jones V. Smith, the words '' but see and distinguish Broivn v. llohinson.'''' An editor who performs his work in this spirit, has, it seems to me, attained the ultima Tlmle of editorial self-effacement. It is surely the duty of the text-writer or editor himself to '' see and dis- tinguish " Broivn v. Rotjinson, and not to leave this sometimes troublesome and difficult business to his reader, who, perhaps, is working against time, and can ill afford to spend two minutes in looking up an unnecessary reference. The cases are brought down to the following pages in the several reports : — in the Law Ileports, down to TREFACE. V 40 Cli. D. p. 384, 20 Q. B. D. p. 393, and the end of 13 App. Ca. ; in tlic Iri.sli LaAv Reports, down to Vol. 21, p. 583, and Vol. 22, p. 673; and down to 58 L. J. Ch. 184, 58 L. J. Q. 13. 160, 60 L. T. N. S. 04, and 37 W. R. 352. Tlie decisions in the Court of Appeal are, in the case of the Law Reports, distinguished as '^Ch. Div." and " Q. B. Div." ; those in the Court below being " Ch. D." and " Q. B. D." respectively. My thanks are due to Mr. D. M. Robertsox- Macdoxald and Mr. J. E. H. Bexx, both of the Equity Bar, for help in the revision of the proofs and compila- tion of the Index. W. F. W. 3, Stone Buildings, Lincoln's Inn, 3Iarch, 1889. CONTENTS, PAET I. PARTICULARS OF SALE AND THE PURCHASER'S REMEDIES FOR A MISDESCRIPTION BY THE VENDOR. INTEODUCTION. Digest of the Law relating to Misdescription CHAPTER II. Misrepresentation. PAGE 1 CHAPTER I. Misdescription. Tenclor's duty iu preparing particulars - • - - - 9 Examples of misdescription - - - - " - 9 Construction of words " acre," »S:c. - - - - - - 10 "More or less" - - - - - " " -U Misleading statements - - - - " --1^ Reservations - - - - " " " -lo Undertakings - - - - - " - - lo Alteration of property - - - - " " -10 Definition _------" Detailed statements ------ Silence of vendor -----"" State of property ------ PufRni? statements and matters of opinion - - - - - -3 • 29 Misrepresentation of law ---""" Misrepresentation of intention - - - " - - , I VIU (ON IKNTS. criArTiin iii. Omissions. rAGE Maxim caveat tiujitur - - - - - - - lio Patent defects - - - - - - --;57 Defects common to all land - - - - - - 39 Local and public Acts of I'arliameut - - - _ - 40 Well-known custom - - - - - - - -lO Mere claims - - - - - - --41 CHAPTER IV. IxDUSTEious Concealment of and Misrepresentation concerning a I'ATENT Defect. Industrious concealment - - - - - - 43 Misrepresentation - - - - - - --43 CHAPTER V. Ambiguity. Definition - - - - - - - -46 General term - - - - - - --47 CHAPTER YI. Misdescription dans locum contractui. Dolus dans locum contractui - - - - - - 49 Burden of proof - - - - - - --oO Misdescriptions not obviously material - - - - - 52 Purchaser's knowledge - - - - - --o4 Purcliaser not relying on statement - - - - - 56 Purchaser's opportunities of investigation - - - - - 59 Purchaser not influenced bj' statement - - - - - 62 CHAPTER VII. Notice. Of what things purchaser has notice - - - - - 64 Notice of facts stated in the particulars and conditions, correcting an ambiguity - - - - - - --65 Notice of contents of lease - - - - - - 65 Notice of documents generally - - - - - - 67 Where no notice - - - - - - - -68 Misrepresentation versus notice - - - - - - 69 " Usual covenants " - - - - - - -71 CONTENTS. IX CHAPTER VIII. Mistake. PAGE Purchaser seeking relief on gi'ound of mistake - - - - 74 Vendor seeking relief on ground of mistake - - - - - 77 " Common mistake " - - - - - - -78 CHAPTEE IX. Fraud. Action for rescission before completion - - - - - 82 Action for rescission after completion - - - - - 83 "Legal fraud" - - - - - - __86 Action of deceit - - - - - - - -86 Action for misrepresentation - - - - _ _ 88 CHAPTER X. MlSREPKESENTATIOX BY VeXDOR'S AgENT. Innocent misrepresentation by agent - - - - - 90 Fraud committed by agent - - - - - --90 Agent personally liable - - - - - - -93 CHAPTER XI. Map or Plan. Facts stated in plan _ _ _ _ _ 94 Plan versus particulars - - - - - .-94 Intended roads - - - - - - - -95 CHAPTER XII. Summary of Relief to which Purchaser is entitled in cases of Misdescription - - - - - - -- CHAPTER XIII. When Vendor will be compelled to make good his Description OR Representation - - - - - - -99 X rONTF.XTS. CHAPTER XIV. Rescission. TAOE Essential misdescription, definition - - - - - - 102 Misdescriptions as to — (i.) Identity _.._--- 105 (ii.) Temiro and 2»fl»^«»'i of vendor's estate - - - - 105 (iii.) Quantity - - - - - - - 109 (iv.) Physical condition - - - - - - 112 (v.) Incumbrances, contingencies, liabilities - - - IM (vi.) Rent or profits - - - - - - - 116 CHAPTER XV. Return OF Deposit - - - 119 CHAPTER XVI. Damages. Damages for loss of bargain, rule in i^/«naw V. T/ion?////^ - - - 122 Expenses of purchase - - - - - - -124 Damages in case of vendor's fraud or wilful refusal - - - 126 Measure of damages - - - - - - -127 Procedure - - - - - - - --129 CHAPTER XVII. Compensation. Compensation at vendor's desire - - - - - - 131 Compensation at iiurcbaser's desire - - - - --131 Trustees selling - - - - - - - -134 Hardship - - - - - - - - - 136 Fair assessment of compensation - - - - - 139 Partial performance without compensation - - - --140 CHAPTER XVIII. Method of assessing Compensation. Inquiry --------- 141 Purchaser's conduct giving a clue - - - - - - 142 Deficiency in quantitj' - - - - - - -144 Duration of lease - - - - - - -- 146 Mis-statement of profits ------- 146 Incumbrances - - - - - - -- 147 Life estates, reversions, &c. - - - - - -148 Difference of tenure - - - - - - --150 Contingencies not admitting of actuarial computation - - - 150 Minerals - - - - - - - --151 Timber and other matters - - - - - - 153 Set-off - - - - - - - - - 154 CONTENTS. XI CHAPTER XIX. PAGE Indemnity _ - - - 155 CHAPTER XX. Relief after Completion - - - 158 CHAPTER XXI. Parol Variation. Parol variation of written contracts - - - - -161 Specific performance - - - - - --161 Rescission ____-_-_ 166 Collateral parol agreements - - - - - --167 Subsequent parol variation ____.- 168 PART II. CONDITIONS OF SALE. CHAPTER XXII. General Remarks. Particulars versus conditions - - - - --170 Construction of conditions - - - - - -171 Construction of statutory conditions - - - - - 173 CHAPTER XXIII. Reserve Price ; Puffing, Sale with, reserve - - - - - - -175 Sale without reserve - - - - - - - 111 No mention of " reserve " in conditions ----- 178 Condition as to retracting bidding - - - - --180 CHAPTER XXIV. Payment of Deposit - - - 181 CHAPTER XXV. Timber and Fixtures. Timber, definition - - - - - - -- 182 Fixtures, definition - - - - - - -183 Valuation clause - - - - - - -- 185 XI 1 CONTKNTS. ("IIAraER XXVI. COXDITIOXS AS TO TlTLE. PAGE 1. Generally — rurcluisei's right to a good title - - - - - 180 2. Doul.tful title— Eule in J^i/rle v. Woddiiujliani _____ Y.)\ Tests of doubtfulness - - - - - - - V.Yl (i.) Facts doubtful - - - - - - - li»j Presumptions - - - - - --1!)G Suspicion - - - - - - -197 (ii.) Law doubtful - - - - - - - 199 Prior decisions adverse to title - - - - - 200 favourable - - - - - - 202 conflicting _____ 20;} Point not covered by decision - - - - - 204 Eule of law or construction of public Act _ - - 204 Point of construction - - - - - - 20 j 3. Purchaser's right to title excluded by knowledge of defect - - 207 4. Conditions as to title generally - - - - - - 209 Conditions enlarging purchaser's right _ _ _ _ 209 General conditions restricting purchaser's right - - - 211 'RvIq oi aliunde - - - - - - -215 " Conclusive evidence " - - - - - - 220 Bona fides - - - - - - - 222 5. Conditions as to special matters - - - - - - 226 (i.) Commencement of title _____ 226 (ii.) Eecitals twenty years old - - - - - - 232 (iii.) Outstanding legal estate _____ 235 (iv.) Statutory declarations - - - - - - 236 (v.) Validity of lease ______ 236 (vi.) Eeceipt for rent, evidence of performance of covenants - - 237 (vii.) Eegistration - - - - - - - 240 (viii.) Stamping - - - - - - --241 (ix.) Tenancies, easements, &c. - - - - - 242 (x.) Incumbrances - - - - - - - 243 CHAPTEE XXVII. Identity. In the absence of stipulation ______ 244 Condition as to identity - - - - - - - 245 CONTENT.^. Xlll CHAPTER XXVIII. Delivery oe Abstract — Waiver of Eequisitions. PAGE Abstract - - - - - - - - - 2-18 " Perfect abstract " - - - - - - - - 249 Waiver by — (i.) Eelease - - - - - - -251 (ii.) Taking steps to complete - - - - - 252 (iii.) Taking possession ----- 252 (iv.) Exercising rights of ownership - - - - 253 Partial or conditional waiver --_--_ 254 Conditions with respect to requisitions - - - - - 255 CHAPTEE XXIX. Compensation. Conditions allowing compensation to purchaser - - - - 258 Conditions refusing compensation to purchaser - - - - 263 The vendor's right to compensation ----- 267 CHAPTER XXX. Conditions relating to Completion. i. Comj^letion, what - - - - - - - 270 ii. Time -------- 270 Time when essential originally - - - - - 271 Time made essential by notice ----- 275 Waiver of essentiality of time - - - - - - 278 iii. Payment of interest on purchase-money - - - _ 279 Different forms of the condition - - - - - 280 " Wilful default " of vendor - - . _ _ 283 iv. Time from which interest is payable - - - --285 V. On what interest is payable - _ - _ _ 288 vi. Eate of interest - - - - - - - 288 vii. Procedure -------- 289 viii. Appropriation - - - - - - -- 290 ix. Income tax - - ----- 293 X. Possession - - - - - - -- 293 xi. Occupation rent payable by purchaser - - - - 297 xii. Ecnts and profits - - - - - - - 298 Occupation rent by vendor ------ 299 xiii. Deterioration - - - - - - -- 301 xiv. Outgoings -------- 303 XIV L'OM'K.MS. CHAFIER XXXI. Condition ior Eescission. PAGE Covering " objections to title " ------ 30u " requisitions as to conveyance " - - - - - 307 claim for compensation - _ _ - - 307 Vendor's " unwillingness " - - - - - - - 310 Steps to be taken by vendor - - - - - -312 Locus 2)cenite»(iiv - - - - - - - - 313 Waiver by vendor - - - - - - -314 Litigation by purchaser - - - - - --316 Procedure __-_._-- 317 CHAPTER XXXII. Conveyance. Preparation aiid expense - - - - - --318 Form - - - - - - - - - 318 Parties - - - - - - - - - 319 Habenduni _-____-- 321 Covenants for title - - - - - - - - 322 Otber covenants wbicb purchaser may require - - - - 326 Covenants, &c. wliicb vendor may require - - - - - 327 Time 329 CHAPTER XXXni. Title Deeds. Production for verification of abstract - - - - - 330 Production for inspection ______ 332 Delivery on completion - - - - - - - 333 Covenant for jjroduclion ------- 333 Attested copies - - - - - - -- 337 CHAPTER XXXIV. Expenses _ _ _ _ 333 CHiVPTER XXXV. FORFEITUEE OF DEPOSIT AND RE-SALE. Forfeiture of deposit - - - - - --342 Re-sale - - 348 "Liquidated damages" - - - - - - - 349 CHAPTER XXXVI. Sale tx Lots - - - _ 3,34 CUMENTf?. XV CHAPTER XXXVII. Sale by Trustees and Mortgagees. i. Before 24th December, 1888 " Depreciatory conditions" ii. Trustee Act, 1888 PAGE ■ 358 - 358 - 370 CHAPTER XXXVIII. PARTICUL^iRS AND CONDITIONS ON A SalE BY THE CoURT. Preparation of particulars and conditions - - - - Bona fides ------- 372 373 PART III. CHAPTER XXXIX. The Memorandum. Statute of Frauds - - - Signature _ _ - - - Names of the parties _ _ _ The property sold _ _ _ - Other essentials _ _ - - Purchaser's knowledge of omitted facts - Stamping _ - - - - Incorporation of memorandum with conditions - Part performance - - - - - 375 375 - 378 - 379 - 380 - 380 - 381 - 381 - 383 APPENDIX I. Hints on the preparation of particulars and conditions of sale 387 APPENDIX II. Precedents - 391 INDEX 403 TEXT BOOKS CITED. Burton's Law of Eeal Property (Tth ed.), 1850. Bythewood & Jarman's Conveyancing (4tli ed.). Gierke & Humiihry's Sales of Land, 1885. Daniel's Chancery Practice (Gtli ed.), 1882, &c. Dart's Vendors and Purchasers (Gth ed.), 1888. Da-v-idson's Conveyancing, Vol. I. (5th cd.), 1885 ; Vol. II. (-Ith ed.), 1^77, Fry on Specific Performance (2nd ed.), 1881. Gibbons on Dilapidations. Hayes' Conveyancing (5th ed.), 1840. Jarman's Conveyancing (3rd ed., edited by Sweet). Lewin on Trusts (8th ed.), 1885. Preston on Abstracts (2nd ed.), 1823. Prideaux's Conveyancing (11th ed.). Seton on Decrees (4th ed.), 1877. Sugden (Lord St. Leonards) on Vendors and Purchasers (14th ed.). Sweet's Concise Precedents (3rd ed.). T. C. Williams' Conveyancing Statutes. "Wolstenholmc & Turner's Conveyancing Acts (4th ed.), 1885. TABLE OF CASES. PAGE Abbott v. Sworder, 4 De G. & S. 448 ; 22 L. J. 235 ; 19 L. T. 311 - 41 AberamanWorksr.Wicken-,4Ch. 101; 20 L. T. N. S. 89; 17W.E.211- 246 Acland V. Gaisford, 2 Madd. 28 - 279, 285, 288, 290, 293, 294, 299 Adamson v. Evitt, 2 Euss. & M. 66 - - - - - 41 Alderson v. Maddison (see Maddison v. Alderson) - - - 32 Alexander v. Mills, 6 Ch. 124 ; 39 L. J. Ch. 407 ; 40 L. J. Ch. 73 ; 24 L. T. N. S. 206 ; 19 W. E. 310 - - 198, 202, 203, 204, 206 Allen I'. Eicliardson, 13 Ch. D. 524 ; 41 L. T. N. S. 615 ; 28 W. E. 313 - 79, 260 Ambrose v. Ambrose, 1 Cox, 194- _ _ _ - - 120 Anderson v. Pacific Insurance Co., L. E. 7 C. P. 65; 26 L. T. N. S. 130; 20 W. E. 280 - - - - - - - - 23 Andrew v. Aitken, 22 Ch. D. 218; 52 L. J. Ch. 294; 48 L. T. N. S. 148; 31 W. E. 425 - - - - - - - - V2 An^ell V. Duke, L. E. 10 Q. B. 174; 44 L. J. Q. B. 78; 32 L. T. N. S. 25 ; 23 W. E. 307 - - - - - - - 168 Anker v. FrankHn, 43 L. T. N. S. 317 - - - - - 294 Anspach (Margravine of) v. Noel, 1 Mad. 310 - - 251, 252, 254 Arkwright v. Newbold, 17 Ch. Div. 301 ; 49 L. J. Ch. 684 ; 42 L. T. N. S. 759 ; 28 W. E. 828 - - - - - - - 87 Armytage, Ee, 14 Ch. D. 379 ; 49 L. J. Bktcj'. 60 ; 42 L. T. N. S. 443 ; 28 Wf E. 924 - - - - - - - 183, 184 Arnold V. Arnold, or Ee Arnold, 14 Ch. Div. 270 ; 42 L. T. N. S. 705 ; 28 W. E. 635 - - - 9, 43, 70, 94, 102, 104, 111, 120, 373 Arnot V. Biscoe, 1 Ves. sen. 95 - - - - - - 93 Ashworth v. Mounsey, 9 Exch. 175 ; 23 L. J. Ex. 73 ; 22 L. T. 121 ; 2 W. E. 41 ; 2 Com. L. E. 418 - - - - - 47 Att.-Gen. v. Christchurch, 13 Sim. 214; 12 L. J. Ch. 28 - - - 286 Att.-Gen. r. Day, 1 Yes. sen. 218 - - - - - 375 Attwood V. Small, 6 CI. & F. 232 ; 2 Jur. 226 - - - 49, 57 Aubrey v. Fisher, 10 East, 446 - - - - - -182 Austin V. Croome, 1 Car. & M. 653 - - - - - - 333 Austin V. Tawney, 2 Ch. 143 ; 36 L. J. Ch. 339 ; 15 W. E. 463 - - 206 Ayles V. Cox, 16 Beav. 23 ; 20 L. T. 4 - - - 52, 104, 106 Aylett V. Ashton, 1 My. & Cr. 105 ; 5 L. J. (N. S.) Ch. 71 - 119, 156 XVIU TABLE OF CASES. PAGE Bailoyc.Collett,18Beav. 17i); 23L. J.Ch. 230; 2'2L.T.;n3; 2W.R.21G- 287 Bailey v. Piper. See Hooper r. Smart. Bain v. Fotberj-ill, L. R. G Ex. o9 ; affirmoJ, 7 H. L. 158 ; 4.} L. J. Ex. 243; 31 L. T. N. S. SS'j ; 23 W. R. 2G1 - 122, 123, 127, 130, 295, 296 Bainbriap:e v. Kiiiuaird, 32 Beav. 34G ; 8 L. T. N. S. 447 ; 2 N. R. 5 ; 11 W. R. G08 - - - - - - - 148, 157 Baker v. Bent, 1 Russ. & M. 224 - - - - - - 142 Balfour v. WeUand, 16 Ves. 151 - - - - - - 206 Ballard v. Shutt, 15 Ch. D. 122 ; 49 L. J. Ch. G18 ; 43 L. T. N. S. 173 ; 29 W. R. 73 - - - - - - - - 287 Ballard v. Way, 1 M. & W. 520 ; 2 Gale, 61 ; Tyr. & G. 851 ; 5 L. J. (N. S.) Ex. 207 - - - - - - 40, 116 Balmanno v. Lumley, 1 Ves. & B. 224 _ _ _ 15G, 157 Banister. Ro, 12 Ch. Div. 131 ; 48 L. J. Ch. 837 ; 40 L. T. N. S. 828 ; 27 W. R. 826 - - - 118, 171, 218, 222, 223, 224, 345, 373 Bank of Ireland v, Brookfield Linen Co., 15 L. R. Ir. 37 - - - 66 Bannerman v. Clarke, 3 Drew. 632 ; 2G L. J. Ch. 27 ; 28 L. T. 96 ; 5 W. R. 37 - - - - - - - - 281 Barclay v. Messenger, 43 L. J. Ch. 449 ; 30 L. T. N. S. 351 ; 22 "W. R. 522 _.-__-- 271, 278 Barclay v. Raine, 1 Sim. & St. 449 - - - - - 336 Barker v. Cox, 4 Ch. D. 464 ; 46 L. J. Ch. 62 ; 35 L. T. N. S. 662 ; 25W. R. 138 ------ 134,148,211 Barnard v. Cave, 26 Beav. 253 ; 7 W. R. 158 - - - - 166 Barnes r. Wood, 8 Eq. 424; 38 L. J. Ch. 683; 21 L. T. N. S. 227; 17W. R. 1080- ----- 133,141,143,149 Barnett v. Wheeler, 7 M. & W. 364 ; 10 L. J. (X. S.) Ex. 102 - 208, 209 Barraud v. Archer, 2 Sim. 433; 9 L. J. Ch. 173; affirmed, see note in 2 Russ. & My. 751 - - - - - - - 40 Barrel!, Ex parte, 10 Ch. 512 ; 33 L. T. N. S. 115 ; 23 W. R. 846 - 342 Barrett v. Ring, 2 Sm. & G. 43 - - - - - - 101 Bartlett v. Salmon, 6 De G. M. & G. 33; 1 Jur. N. S. 277; 26 L. T. 82 ; 4W. R. 32 - - - - - - - 11,54,92 Barwick v. English Joint Stock Bank, L. R. 2 Ex. 259; 36 L. J. Ex. 147 ; 16 L. T. N. S. 4G1 ; 15 W. R. 877 - - - - - 92 Baskcomb v. Beckwith, 8 Eq. 100; 38 L. J. Ch. 536; 20 L. T. N. S. 862; 17 W. R. 812 - - - - - - - - 96 Baxendale v. Scale, 19 Beav. 601 ; 24 L. J. Ch. 385 ; 24 L. T. 306 ; 1 Jur. N. S. 581 - - - - - - 77, 79, 81 Beattie v. Lord Ebury, 7 Ch. 777; 7 H. L. 102; 41 L. J. Ch. 804; 44 ibid. 20; 27 L. T. N. S. 398 ; 30 ibid. 581 ; 20 W, R. 994 ; 22 ibid. 897 31 Beauchamp (Earl) v. Winn, L. E. 6 H. L. 223 ; 22 W. R. 193 - - 81 Beaumont v. Dukes, Jac. 422 - - - - - - 33 Bebb V. Bunny, 1 K. & J. 216; 1 Jur. N. S. 203 - - - 293 Beeston v. Stutely, 27 L. J. Ch. 156 ----- 211 Behn v. Burness, 3 B. & S. 751 ; 32 L. J. Q. B. 204 ; 8 L. T. N. S. 207 ; 9 Jur. N. S. 620 - - - - - - - 18 Beioley v. Carter, 4 Ch. 230 ; 38 L. J. Ch. 92, 283; 20 L. T. N. S. 381 ; 17 W. R. 300 - - - - - - 202, 205, 213 TABLE OF CASES. XIX PAGE 13ell ('. Holtbv, 15 Eq. 178; 42 L. J. Ch. 2G0; 28 L. T. N. S. 9; 21 W. E. 321 - - - - - - - - - 205 Bellairs v. Tucker, l;J Q. B. D. 562 - - - - - 23, 27 Belworth v. Hassell, 4 Campb. 140 - - - - - 109 Bennett r. Bmmfitt, L. E. 3 C. T. 28 - - - - - 376 Bennett v. Wheeler, 1 Ir. Eq. R. 18 - - - - - 373 Bennett v. Womack, 7 B. & C. 627 ; 3 C. & P. 96 ; 1 M. & E. 624 ; 6L. J. Q. B. 175 - - - - - - - - 72 Benson v. Lamb, 9 Beav. 502 ; 15 L. J. Cli. 218 ; 7 L. T. 385 - 277, 320 Bentley v. Craven, 17 Beav. 204 ; 21 L. T. 215; 1 W. E. 362 - - 15 Berry r. Young, 2 Esp. 640, n. - - - - - - 330 Best V. Ilamaud, 12 Ch. Div. 1 ; 48 L. J. Ch. 593 ; 40 L. T. N. S. 769 ; 27 W. E. 742 - - - - 218, 220, 223, 315, 344, 345 Bettesworth and Eicher, Ee, 37 Ch. D. 535 ; 58 L. T. N. S. 796 - 304 Betts i'.Burch, 4H. & N. 506; 28 L. J. Ex. 267; 33 L. T. 151; 7W.E. 546 351 Bexwell v. Christie, Cowp. 395 - - - - --178 Beyfus and Masters, Ee, 39 Ch. Div. 110 ; 59 L. T. N. S. 740 ; 37 W. E. 261 - - - - - - - - 47, 106, 264 Biggs V. Bree, 51 L. J. Ch. 263 ; 46 L. T. N. S. 8 - - - - 181 Bingham v. Bingham, 1 Ves. sen. 126 - - - - 79, 80 Binks V. Lord Eokeby, 2 Swanst. 222 - - - 114, 287, 320 Birch V. Joy, 3 H. L. C. 565 - - - - - 287, 288 Birch V. Podmore, Sug. 635 - - - - - - - 285 Bird V. Andrew, 4 Times L. E. 31 - - - - - 113 Bird V. Bovilter, 1 Nev. & M. 313 ; 4 B. & Ad. 446 - - - - 377 Bird V. Fox, 11 Hare, 48 _ . . - - 225, 247 Birkbeck, &c. Society, Ex parte, 24 Ch. D. 119 ; 52 L. J. Ch. 777 ; 49 L. T. N. S. 265 ; 31 W. E. 716 - - - - - - 242 Blachford v. Kirkpatrick, 6 Beav. 232 ; 12 L. J. Ch. 108 - - 385 Blackburn v. Smith, 2 Ex. 783 ; 18 L. J. Ex. 187 - - - - 249 Blacklow V. Laws, 2 Hare, 40; 6 Jur. 1121 - - - 249, 256 Blagden v. Bradbear, 12 Ves. 466 - - - - - - 380 Blake r. Phinn, 3 C. B. 976 ; 16 L. J. C. P. 159 - . _ 215 Blakesley v. Wliieldon, 1 Hare, 176; 11 L. J. Ch. 164; 6 Jur. 54 - - 328 Bleakley v. Smith, 11 Sim. 150 - - - - - - 376 Blenkhorn v. Penrose, 29 W. E. 237 ; 43 L. T. N. S. 668 - - - 214 Blosse V. Lord Clanmorris, 3 Bli. 62 - - - - - 192 Boehm v. Wood, 1 Jac. & W. 419 ; T. & E. 332 - - - - 273 Bolingbroke's Case, 1 Sch. & Lef. 19, n. ; cited 2 Ph. 605 - - 101 Bolton V. London School Board, 7 Ch. D. 766 ; 47 L. J. Ch. 461 ; 38 L. T. . N. S. 277; 26 W. E. 549 - - - - - 233, 234, 297 Bond V, Hopkins, 1 Sch. & Lef. 413 ----- 383 Borell V. Dann, 2 Ha. 440 ----- 361,364,367 Bos V. Helsham, L. E. 2 Ex. 72 ; 36 L. J. Ex. 20 ; 15 L. T. N. S. 481 ; 15 W. E. 259 ; 4 H. & C. 642 - - - - - 186, 260 Boswell V. Mendham, 6 Madd. 373 - - - - - - 197 Boughton I'. Jewell, 15 Ves. 176- - - - - 337,341 Bourne v. London and County Land Co., "VV. N. 1885, p. 109 - 12, 269 Bousfield V. Hodges, 33 Beav. 90 _ - - - - 255 b2 XX TABLE OF CA.SKS. FAOE Bower v. Cooper, 2 Hare, 408 ; 11 L. J. Ch. 2S7 ; G Jar. 681 - 190, 328 Bowles c. Atkinson, Sug. 334 - - - - - - 52 Bowles V. Eouml, ii Yes. 508 _____ 37, 177 Bowman /•. Ilvlaua, 8 Ch. D. 5SS ; 47 T-. J. Ch. 5Sl ; 30 L. T. X. S. 00 ; 2G W. R. S77 - - - - - - - 310, 31G Bown !'. Stenson, 24 Beav. 631 - - - - - - 253 Boyil r. Dickson, 10 Ir. E. E(i. 230 - - - _ _ 257 Bradshaw, Ex parte. 16 Sim. 174 ; 17 L. J. Ch. 454 ; 5 Ev. Ca. 432 ; 12 Jur. 888 - - - - - - ' - - - 283 Bramloy c Alt, 3 Yes. 620 - - - - - 178, 362 Brandlv {or Brandling) v. riummer, 2 Drew. 427 ; 23 L. J. Ch. 960 ; 23 L. T.' 329 ; 2 W. R. 662 ; 2 Eq. Rep. 1260 - - _ - 1 1 Bratt r. Ellis, Sug. App. Xo. 5, p. 812 - - - - - 126 Bray ?•. Briggs, 20"\V. R. 902; 26L. T. N. S. 817 - - _ - 76 Brealoyr. Collins, You. 317 ----- 26,56,60 Brett t: Clowser, 5 C. P. D. 376 - - - - - - 168 Brewer v. Broadwood, 22 Ch. D. 105; 52 L. J. Ch. 136; 47 L. T. N. S. 508; 31 W. R. 115 - - - - 36, 107, 101, 273, 275 Brewer r. Brown, 28 Ch. D. 300 ; 54 L. J. Ch. 605 - - 13, 113 Bridges i: Robinson, 3 Mer. 694 - - - - - - 288 British Mutual, &c. v. Charnwood Forest, &c., 18 Q. B. Div. 714 - 93 Bromfit V. Morton, 3 Jur. X. S. 1198 - - - 48, 66, 67 Brooke v. Champcrnowne, 4 CI. & F. 589 - - - 280, 287 Brooke v. Rounthwaitc, 5 Ha. 298 ; 15 L. J. Ch. 332 ; 10 Jur. 656 - 40, 63, 103, 113, 152 Brookes /■. Drysdale, 3 C. P. D. 52; 37 L. T. X. S. 467 ; 26 W. R. 331 - 72 Brown r. Dibbs, 37 L. T. X. S. 171 ; 35 W. R. 776 - - - 302 Brown v. Farebrother, 58 L. J. Ch. 3; 59 L. T. X. S. 822 - - - 181 Browne v. PauU, 26 L. T. 232 ; 2 Jui". X. S. 317 - 173, 327, 356, 374 Brownlie r. Campbell, 5 App. Ca. 925 ; 7 Rett. II. L. 66 - 41, 51, 84, 85, 86 Bryant v. Busk, 4 Russ. 1 - - - - - - 331 Buchanan r. Poppleton, 4 C. B. X. S. 20; 27 L. J. C. P. 210; 4 Jur. X. S. 414; 6 W. R. 372 - - - - - - - 233 Buckland r. Papillon, 1 Eq. 477 ; affinned, 2 Ch. 67 ; 35 L. J. Ch. 738 ; 36 ibid. 81 ; 13 L. T. X. S. 736 ; 15 ibid. 378 ; 14 W. R. 300 ; 15 ibid. 92; 12 Jur. 155 - - - - - - - 71 Buckmaster v. Ilarrop, 7 Yes. 341; 13 ibid. 456 - 375, 377, 385, 386 Bull V. Hutchens, 32 Beav. 615 ; 8 L. T. 716; 9 Jur. X. S. 954 ; 11 W. E. 866 ; 2 X. R. 300 - - - - - 193,221,238,239 Bunbury's Estate, Re, 1 I. E. Eq. 458 - - - - - 151 Burke v. Annis, 11 Hare, 232 - - - - - - 192 Burnaby v. The Equitable Eeversionary Societj', 28 Ch. D. 416 ; 54 L. J. Ch. 466 ; 52 L. T. X. S. 350; 33 W. R. 639 - - - - 250 Burnell v. Brown, 1 Jac. & W. 168 - - - 116, 154, 253 BurncU v. Fii-th, 15 W. R. 546 - - - - - - 192 Burroughes v. Browne, 9 Ha. 609 ; 22 L. J. Ch. 148 - - - 293 Burrow v. Scammell, 19 Ch. D. 175; 51 L. J. Ch. 296; 45 L. T. X. S. 606 ; 30 W. R. 310 ; 46 J. P. 135 - - - - - 132, 145 Burrowes v. Lock, 10 Yes. 470 - - - - - - 88 Butterfield v. Heath, 15 Beav. 408; 22 L. J. Ch. 270 - - - 197 ] TABLE OF CASES. XXI PAGE Buxton V. Bellin, 3 Victorian L. E. 243 (Eq.) - - - - 307 Buxton i\ Lister, 3 Atk. 383 - - - - - - 28 Bygrave v. Metropolitan Board of Works, 32 Ch. Div. 1-47 ; o5 L. J. Ch. 602 ; 54 L. T. N. S. 889 - - - - - - 294 C. CabaUero v. Henty, 9 Ch. 447 ; 43 L. J. Ch. 63o ; 30 L. T. N. S. 314 ; 22 W. E. 446 - - - - - - - 67, 68, 162, 168 Calcraft v. Eoebuck, 1 Ves. jun. 221 - - 12, 110, 253, 255, 292 Calverley v. Williams, 1 Ves. jun. 210 - - - - - 11 Cauiberwell and South London Building Society v. HoUoway, 13 Ch. D. 754 ; 49 L. J. Ch. 301 ; 41 L. T. N. S. 752; 28 W. E. 222 - 47, 48, 65, 106, 171, 263 Cameron and Wells, Ee, 57 L. T. N. S. 645 (not in 37 Ch. D. 32 on this point) 225 Campbell v. Walker, 5 Ves. 678 - - - - - - 362 Capper, Ex parte. See Ee Newman. Carpenter v. Blandford, 3 Man. & Ey. 93 ; 8 B. & C. 575 - - - 278 Carrodus v. Sharp, 20 Beav. 56 - - - - - 285, 303 Carter v. Dean of Ely, 7 Sim. 211 ; 4 L. J. (N. S.) Ch. 132 - - - 273 Carus- Wilson and Greene, Ee, 18 Q. B. Div. 7 ; 55 L. T. N. S. 864 ; 35 W. E. 43 - - - - - - - 185, 186 Carver v. Eichards, 27 Beav. 488 ; 1 D. F. & J. 548 - - - 199 Casamajor v. Strode, 2 Swanst. 347 ; 1 Wils. C. C. 428 ; 5 Sim. 87 ; 2 M. & K. 708 ; 1 S. & S. 381 - - - - - - 355 Casson v. Eoberts, 31 Beav. 613 ; 32 L. J. Ch. 105 ; 7 L. T. N. S. 588 ; 11 W. E. 102 ; 8 Jur. N. S. 1199 ; 1 N. E. 9 - - - - 348 Castellain r. Preston, 11 Q. B. Div. 380 ; 52 L. J. Q. B. 366 ; 49 L. T. N. S. 29 ; 31 W. E. 557 - - - - - - 301 Castle V. Wilkinson, 5 Ch. 534; 39 L. J. Ch. 467, 843; 16 W. E. 502 ; 18 ibid. 586 _______ 133, 209 Cathrow v. Eade, 4 De G. & S. 527 ; 21 L. T. 179 - - - 331 Catling V. King, 5 Ch. Div. 660 ; 46 L. J. Ch. 384 ; 36 L. T. N. S. 526 ; 25 W. E. 550 - - - - - - - - 379 Cato V. Thompson, 9 Q. B. Div. 616; 47 L. T.N.S. 491 - 37, 116, 163, 208, 210 Cattell V. CorraU, 3 Y. & C. 413 ; 4 Y. & C. 228 ; 4 M. & W. 734 ; 8 L. J. (N. S.) Ex. 225 ; 9 L. J. (N. S.) Ex. Eq. 37 - - 193, 198, 224 Cave V. Cave, 2 Vern. 508 - - - - - - - 184 Cavendish v. CavencUsh, 10 Ch. 319 ; 33 L. T. N. S. 219 ; 23 W. E. 313 - 369 Chambei'lain v. Chamberlain, 1 Sm. & G. App. xxviii. - - - 372 Chamberlain v. Lee, 8 L. J. (N. S.) Ch. 266 - - - - 11 Chandos v. Talbot, 2 P. Wms. 601 - - - - - - 182 ChifEeriel, Ee, 40 Ch. D. 45 - - - 96, 101, 139, 154, 366 Church V. Brown, 15 Ves. 258 - - - - -324, 326 City of London v. Mitford, 14 Ves. 41 - - - - - 273 Clapham v. Shillito, 7 Beav. 146 - - - - 56, 57, 60, 85 Clare v. Lamb, L. E. 10 C. P. 334 ; 44 L. J. C. P. 177 ; 32 L. T. N. S. 196; 23 W. E. 389 - - - - - - -158 Clark V. May, 16 Beav. 273 ; 22 L. J. Ch. 302; 20 L. T. 104 ; 1 W. E. 69 - - - - - - - - - 319 Clarke v. Grant, 14 Ves. 519 - - - - - - 162 XXU TABLE t-)F CASES. PAOE Clarke v. Mnckiutosh, 4 Giff. lU ; 11 W. R. 652 - - o7, 59 Clarke v. WiUott, L. E. 7 Ex. 313 ; 41 L. J. Ex. 197 ; 21 W. K. 73 - 207 Clayrlon v. Green, L. R. 3. C. P. 511 ; 37 L. J. C. P. 320 ; l.S L. T. N. S. 607; 16 W. E. 1126 - - - - - - -273 Clerk V. AVright, 1 Atk. 12 ; West, temp, llardw. 261 - - - 385 Clinan v. Cooke, 1 Sell. & Lef. 22 - - - - 384, 385 CUve i: Beaumont, 1 Do G. & Sm. 397 - - - - - 252 Clowes I'. Higginson, 1 "N'es. & B. 524 - - - - - 164 Cockerell r. Cliolmelcj-, 1 E. & My. 425 ; Tarn. 435- - - - 369 Colby i: Gadsden, 34 Beav. 416 ; 12 L. T. N. S. 197 ; 11 Jur. N. S. 760 ; 5 IN". E. 456 - - - - - - - - 59 Cole V. Wliite, mentioned in argument, 1 Bro. C. C. 409 - - - 384 Coles V. Trecothick, 9 Yes. 234; 1 Sm. 233 - - - - 377 Collard i'. Eoe, 4 De G. & J. 525 ; 28 L. J. Ch. 560 ; 7 W. E. 623 - - 21 CoUard v. Sampson, 16 Beav. 543 ; 4 D. M. & G. 224 - - 203, 205 CoUen V. Wright, 7 E. & B. 30 ; 8 E. & B. 647 ; 27 L. J. Q. B. 215 ; 30 L. T. 209 ; 4 Jur. N. S. 357 ; 6 W. E. 123 - - - - 93 Collier r. Jeukius, You. 295 - - - - - - 108 ColHer v. McBean, 34 Beav. 426 ; 1 Ch. 81 ; 35 L. J. Ch. 144 ; 13 L. T. N. S. 484 ; 12 Jui". 1 ; 14 W. E. 156 - - - - - 202 Collier v. Walters, 17 Eq. 252 ; 43 L. J. Ch. 216; 29 L. T. N. S. 868 ; 22 W. E. 209 - - - - - - 200, 201, 202 Collins r. Collins, 26 Beav. 306 ; 28 L. J. Ch. 184 ; 32 L. T. 233 ; 5 Jur. X. 8. 30; 7 W. E. 115 - - - - - -186 Collins V. Stimson, 11 Q. B. D. 142 ; 52 L. J. Q. B. 440 ; 48 L. T. N. S. 828 ; 31 W. E. 920 - - - - - - - 343 Colyer v. Clay, 7 Beav. 188 - - - - - - 80 Commins v. Scott, 20 Eq. 11 ; 44 L. J. Ch. 563; 32 L. T. N. S. 420; 23 W. E. 498- - - - - - - - - 379 Connolly v. Parsons, in note to Bramley v. Alt, 3 Yes. 620 - - 178 Cook V. Dawson, 3 De G. F. & J. 127 ; 29 Beav. 123 ; 30 L. J. Ch. 311 ; 3 L. T. N. S. 801 ; 7 Jur. N. S. 130 ; 9 W. E. 305 - - 202, 203 Cook V. Waugh, 2 Giff. 201 ; 2 L. T. N. S. 346 ; 6 Jur. N. S. 596 ; 8 W. E. 458 - - - - - - - 39, 43 Cooke V. Tombs, 2 Anst. 420 - - - - - - 385 Coombs V. Cook, 1 Cab. & EU. 75 - - - - - 10 Cooper and Allen, Ee, 4 Ch. D. 802; 46 L. J. Ch. 133; 35 L. T. N. S. 890; 25 W. E. 301 - - - - - - 148, 205, 368 Cooper V. Cartwright, Johns. 685 _____ 318 Cooper I'. Emerv, 10 Sim. 609; 1 Ph. 388; 13 L. J. Ch. 275; 2 L. T. 437 ; 8 Jur. 181 - - - - - - - - 334 Cooper V. Phibbs, L. E. 2 H. L. 149 ; 16 L. T. N. S. 678 ; 15 W. E. 1049 - - - - - - - - 80, 81 Cooper V. Trewby, 28 Beav. 194 ; 8 W. E. 299 - - . - 40 Cooth V. Jackson, 6 Yes. 12- - - - - -186 Corder v. Morgan, 18 Yes. 344 - - - - - - 319 Cordingley r. Cheeseborough, 4 De G. F. & J. 379; 3 Giff. 496; 31 L. J. Ch. 617 ; 4 L. T. N. S. 342 ; 8 Jur. N. S. 585, 755 - 172, 265, 266 Corless v. Sparkling, I. E. 9 Eq. 595 - - - - - 55 Cornfoot V. Fowke, 6 M. & W. 358 ; 9 L. J. (N. S.) Ex. 297 ; 4 Jur. 919 . 91, 92 Coslake f . TiU, 1 Euss. 376 - - - - - - 273 TABLE OF CASES. XXIU PAGE Cesser v. Collinge, 3 Myl. & K. 283 ; 1 L. J. (N. S.) Ch. 130 - - 66 Cotton V. Scudamore, 1 K. & J. 321 - - - - - 341 Cottrell V. Cottrell. 2 Eq. 330 ; 35 L. J. Ch. 466 ; 14 L. T. N. S. 220 ; 12 Jur. N. S. 285 ; 14 W. E. 572 - - - - - - 323 Coverley v. Burrell, 5 B. & Aid. 257 - - - - 36, 108 Cowles V. Gale, 7 Ch. 12 ; 41 L. J. Ch. 14 ; 25 L. T. N. S. 524 ; 20 W. E. 70 __._-.-__ 273 Cowley V. Watts, 21 L. T. 97 ; 17 Jur. 172 - - 54, 55, 163, 209 Cowper V. Harmer, W. N. 1887, p. 186 - - - - - 323 Cox V. Coventon, 31 Boav. 378 ; 7 L. T. N. S. 78 ; 8 Jur. N. S. 1142 ; 10 W. E. 829 - - - - - - 9, 67, 108, 140 Cox V. Middleton, 2 Drew. 209 ; 2 Eq. Eep. 631 ; 23 L. J. Ch. 618 ; 23 L. T. 6 ; 2 W. E. 284 - - - - - - 25, 44 Craddock v. Piper, 14 Sim. 310 ; 1 M. & G. 664 ; 1 H. & T. 617 ; 19 L. J. Ch. 107 ; 15 L. T. 61 ; 14 Jur. 97 - Crane v. Kilpin, 6 Eq. 334 ; 37 L. J. Ch. 913 ; 19 L. T. N. S. 350 Crawford v. Toogood, 13 Ch. D. 153 ; 49 L. J. Ch. 108; 41 L. T. 554 ; 28 W. E. 248 _ - - . _ CressweU v. Davidson, 56 L. T. N. S. 811 Cripps V. Eeade, 6 T. E. 606 Crockford v. Alexander, 15 Ves. 138 - - - _ Crompton v. Lord Melbourne, 5 Sim. 353 - - - Croome v. Lediard, 2 My. & K. 251 ; 3 L. J. N. S. 98 - Crosse v. Keene, 9 Hare, 469 _ _ _ _ Crosse v. Lawrence, 9 Hare, 462 ; 16 Jur. 142 - - - Crowdert'.Austin,3Bing.368;llMoore,283;2C.&P.208;4L.J.C.P.118 178 Cruse V. NoweU, 4 W. E. 619 ; 25 L. J. Ch. 709 ; 27 L. T. N. S. 313 ; 2 Jur. N. S. 536 - - - - - - - 212 Crutchley v. Jerningham, 2 Mer. 502 - - - - - 349 Cuddon V. Tite, 1 Giff. 395 ; 31 L. T. 340 ; 4 Jur. N. S. 579 ; 6 W. E. 606 - 300 Gumming to Godbolt, 1 Times Eep. 21 - - - --212 Cui-Ung V. Austin, 2 Dr. & Sm. 129 . . - 36, 190, 245 Cuthbert v. Baker, Sug. 313 - - - - --116 Cutts, Ex parte, 3 Deac. 242 ; 3 M. & A. 549 - - - - 375 Cutts V. Thodey, 13 Sim. 206; 1 Coll. 223 ; 6 Jur. 1027 - - - 315 D. Dakin v. Cope, 2 Euss. 170 - - - - - 299, 304 Dalby v. Pullen, 3 Sim. 29 ; 1 Euss. & My. 296 - - 109, 110 Dale V. Hamilton, 5 Hare, 369; 2 Ph. 266; 16 L. J. Ch. 397; 9 L. T. 309; 11 Jur. 574 - - - - - - - 384 Dale V. Lister, cited 16 Ves. 7 - - - - 146, 149 DamesandWood,Ee,27Ch.Div.l72; 29ibid.G2G; 53L. J.Ch.917; oiibid. 771; 51 L. T. N. S. 109; 53 ibid. 177; 32 W. E. 844; 33 Ibid. 685 - 311, 313 Dance v. Goldingham, 8 Ch. 902 ; 42 L. J. Ch. 777 ; 29 L. T. N. S. 160 ; 21 W. E. 761 - - - - - 359, 360, 361, 363 Daniel v. Anderson, 31 L. J. Ch. 610 ; 7 L. T. N. S. 183 ; 8 Jur. N. S. 328 ; 10 W. E. 366 - - - - - - - 354 Daniels v. Davison, 16 Ves. 249 ; 17 ibid. 433 - - - - 106 - 236 - 293 N. S. 276, 277 - 107 - 158 294, 296 135, 159 - 164 - 182 182, 246 XXIV TABLE OF CASES. PAOK Darby v. Whitakcr, 4 Drew. 134 ; 129 L. T. 351 ; 3 W. R. 772 - - 1«8 Dare v. Tucker, G Yes. 400 - - - - - 334, 357 Darlington r. Hamilton, Kay, 550; 2 Eq. Eep. OOG ; 23 L. J. Ch. 1000; 2 W. 11. Dig. 88 - - - - 53, 05, lOG, 107, 216 Davenport v. Cbarsloy, 54 L. T. N. S. 372 ; 34 W. E. 390 - - - 41 Davey v. Durraut, 1 Do G. & J. 535 ; 2G L. J. Ch. 830 - - 370 Davies v. Sear, 7 Eq. 427 ; 38 L. J. Ch. 535 ; 20 L. T. N. S. 5G ; 1 7 W. R. 390 94 Davis and Cavoy, Ee, 58 L. J. Ch. 143 ; 37 W. E. 217 - - 119, 130 Davis r. Jones, 2 2. & Aid. 1G5 - - - - - - 184 Davys and others to Saurin, Ee, 17 L. E. Ir. 334 - - 215, 217 Dawes r. Betts, 12 Jur. 412, 709 ----- 21,07 Dawes v. Charsley, W. N. 188G, pp. 37, 78 - - - - 271 Dawes r. King, l" Stark. N. P. C. 75 - - - - - 26 Dawsonr.Brinckmau,3Mac.&G.53; affii-ming3DeG.&Sm.37G - 246,251,255 Dawson v. Yates, 1 Beav. 301 - - - - - - 316 Day r. Luhke, 5 Eq. 33G ; 37 L. J. Ch. 330 ; 16 W. E. 717 - - 273 Day V. Wells, 30 Beav. 220 ; 7 Jur. N. S. 1004 ; 9 W. E. 857 - - 376 Denne v. Light, 8 De G. M. & G. 774 ; 26 L. J. Ch. 459 ; 29 L. T. 60 ; 3 Jur. N. S. 627 - - - - - - 36, 190 Denning v. Henderson, 1 De G. & Sm. 689 ; 17 L. J. Ch. 8 ; 10 L. T. 302 ; 12 Jur. 89 - - - - - - - - 280 Denny v. Hancock, 6 Ch. 1 ; 23 L. T. N. S. 686 ; 19 AY. E. 54 - 14, 63, 95 Depree v. Bidborough, 4 Giff. 479 ; 3 N. E. 187 ; 33 L. J. Ch. 134 ; 9 L. T. N. S. 532; 9 Jur. N. S. 1317 ; 12 W. E. 191 - - - - 347 Deptford Creek Bridge Co. and Beavan's Contract, 27 Sol. J. 312; 28 ibid. 327 - - - - - - - - - 111 De Visme v. De Visme, 1 Mac. & G. 336 ; 1 HaU & Tw. 408 ; 18 L. J. Ch. 159 ; 19 ibid. 52 ; 14 L. T. 169 ; 13 Jur. 1037 - 282, 290, 291, 292, 298 D'Eyncourt v. Gregory, 3 Eq. 382 ; 36 L. J. Ch. 107 ; 15 W. E. 186 - 183, 184 DicHnson v. Heron, Sug. 630, n. - - - - - 293 Dimmock r. Hallett, 2 Ch. 21 ; 36 L. J. Ch. 146 ; 15 L. T. X. S. 374; 15 W. E. 93 - - - - - -14,25,83,117,178,259 DobeU V. Hutchinson, 3 Ad. & Ell. 355 ; 5 N. & M. 251 ; 1 H. & W. 394 ; 4 L. J. (N. S.) Q. B. 201 - - - - - -111 Doherty, Ee, 15 L. E. Ir. 247 - - - - - 322, 357 Donald v. Scott, 10 Ir. Ch. E. 496 - - - - - 166 Donovan v. Ericker, Jac. 165 - - - - - - 297 Douglas V. L. & N. W. Eail. Co., 3 K. & Jo. 173 ; 3 Jur. N. S. 181 - 227 D'Oyley v. Powis, 1 Cox, 206; 2 Bro. C. C. 32 - - - - 120 Drewe v. Corp, 9 Yes. 368 - - - - - - 105 Drewe V. Hanson, 6 Yes. 675 - - _ - 102,111,114 Drysdale v. Mace, 2 Sm. & Giff. 225 ; 5 De G. M. & G. 103 ; 23 L. J. Ch. 518; 2 Eq. Eep. 386; 2 W. E. 341 - - - - -243 DuddeU v. Simpson, 2 Ch. 102 ; 36 L. J. Ch. 70 ; 15 L. T. N. S. 305 ; 15 W. E. 115- ----- 310,313,314,317 Duker. Bamett, 2 Coll. 337; 15 L. J. Ch. 173; 6 L. T. 478; 10 Jur. 87 ------- - 216, 218 Dunn V. Flood, 25 Ch. D. 629 ; 28 Hid. 586 ; 53 L. J. Ch. 537 ; 54 ibid. 370; 49 L. T. N. S. 670; 52 ibid. 699; 32 W. E. 197 ; 33 ibid. 315 - 39, 135, 360, 362, 363, 364, 365 TABLE OF CAttE.S. XXV PAGE Durham v. Legard, 34 Beav. 611 ; 34 L. J. Ch. 589 ; 13 L. T. N. S. 82 ; llJur. N. S. TOG; 13 W. E. 959 . - . . 77,79,136 Dyas V. Stafford, 9 L. E. Ir. 520 - - - - - 376, 377 Dyer v. Ilargrave, 10 Ves. 505 - - 25, 45, 56, 112, -113, 131, 273, 299 Dykes v. Blake, 4 Bing. N. 0. 463 ; 6 Sc. 320 ; 1 Am. 209 ; 7 L. J. (N. S.) C. P. 282 - - - - - - - 45, 95, 115 Dyson V. Hornby, 4 De G. & Sm. 481 - - - - - 290 Eaglesfield v. Marquis of Londonderry, 4 Ch. Div. 693 ; 35 L. T. N. S. 822 ; 38 ibid. 303 ; 25 W. E. 190 ; 26 ibid. 540 - - 30, 88, 89 Edgell V. Day, L. E. 1 C. P. 80; 35 L. J. C. P. 7 ; 1 H. & Eutli. 8; 13 L. T. N. S. 328 ; 12 Jur. 27 ; 14 ^Y. E. 87 - - - 121, 181 Edgington v. Fitzmaurice, 29 Ch. Div. 459; 32 W. E. 848 - - 32, 62 Edie and Brown, Ee, 58 L. T. N. S. 307 - - - - - 300 Edwards v. Hodding, 5 Taunt. 815; 1 Marsh. 377 - - - - 181 Edwards ?'. McLeay, G. Coop. 308 ; 2 Sw. 287 - - - 86,159 Edwards v. Wickwar, 1 Eq. 68 ; 35 L. J. Ch. 48 ; 13 L. T. N. S. 428 ; 14 W. E. 79 - - - - - - - 68, 213, 242 Edwards-Wood v. Marjoribanks, 1 Giff. 384 ; 3 De G. & J. 329; 7 H. L. Ca. 806; 28 L. J. Ch. 298 ; 30 ibid. 176 ; 32 L. T. 304; 3 ibid N. S. 222 ; 5 Jur. N. S. 181 ; 6 ibid. 1167 ; 7 W. E. 165 - - - 42 Egmont (Earl of) v. Smith, 6 Ch. D. 469 ; 46 L. J. Ch. 356 - - 298, 319 Ellard v. Lord Llandaff, 1 Cox, at p. 249 - - - - 37 Elliott V. Turner, 13 Sim. 477 - - - - - - 283 Ellis V. Eogers, 29 Ch. Div. 661 ; 50 L. T. N. S. 660; 53 ibid. 377 - 69, 189, 207, 208, 209 Elsei'. Else, 13 Eq. 196; 41 L. J. Ch. 213; 25 L. T. K S. 927; 20 W. E. 286 ---_-. 221, 234, 373 Elworthy v. Sandford, 34 L. J. Ex. 42 - - - - - 330 Emery v. Grocock, 6 Madd. 54 - - - - - 195, 196 Emmerson v. Heelis, 2 Taunt. 38 _____ 376 Engell V. Fitch, L. E. 3 Q. B. 314 ; 4 ibid. 659 ; 37 L. J. Q. B. 145 ; 18 L. T. N. S. 318; 16 W. E. 785 - - - 127, 128, 295, 296, 306 English V. Murray, 49 L. T. N. S. 35 ; 32 "W. E. 84 - 141, 220, 262 Eno V. Eno, 6 Hare, 171- - - - - --203 Enraght v. Fitzgerald, 2 Dr. & War. 43 ; 2 Ir. Eq. E. 87 - - 287 Erskine v. Adeane, 8 Ch. 756 ; 42 L. J. Ch. 835 ; 29 L. T. N. S. 324 ; 21 W. E. &02- - - - - - - _ _ 168 Esdaile v. Stephenson, 1 Sim. & St. 122; 6 Mad. 366 - 36, 115, 279, 284 Essex V. Daniell, L. E. 10 C. P. 538 ; 32 L. T. 476 - - - 348, 350 Evance v. Hogg, Seton, 1314 (called Evans v. Hogg in Pemberton on Judgments, p. 431) _-__-- 104, 110 Evans v. Eobins, 1 H. & 0. 302 ; 31 L. J. Ex. 465 ; 6 L. T. 897 ; 8 Jur. N. S. 846; 10 ibid. 473; 10 W. E. 776 - - - 10, 71, 108, 170 F. Faino v. Brown, cited 2 Ves. sen. 307 - - - - - 100 Fairheadr. Southee, 11 W. E. 739 - - - -75,76 XXVI TABLE OF CASES. PAGE Falkner v. Equitable, &c. Society, 4 Drew. 352 ; 2.S L. J. Ch. 132 ; 32 L. T. ISl ; -1 Jur. N. S. 1214 ; 7 W. E. 73 - - - 360, 366 Farebrother i: Gibson, 1 De G. & J. 602 _ . . ir,2, 163 Farebrothcr v. Simmons, 5 B. & Aid. 333 - - - - - 377 Farrer v. Lacy, 31 Ch. Div. 42 ; 55 L. J. Ch. 149 ; 53 L. T. N. S. 515 ; 34 W. E. 22 - - - - - - - - 362 Fcnton v. Browne, 14 Ves. 144 - - - - - - 28 Few-ster r. Turner, 11 L. J. Ch. 161 ; 6 Jur. 144 . . - 96 Fildes V. Hooker, 3 Mad. 193 ; 2 Mer. 429 - - - - 107, 157 Flight t: Barton, 3 Myl. & K. 282 - - - - - 22 Flight r. Booth, 1 Bing. N. C. 370 ; 1 Scott, 190 ; 4 L. J. (N. S.) C. P. 66 - 20, 116, 259 Flint v. Woodin, 9 Hare, 618; 16 Jur. 719 - - - 13, 178, 179 Flood V. Pritchard, 40 L. T. N. S. 873 - - - - 54, 380 Flower v. Hartopp, 6 Beav. 476 ; 8 ibid. 200; 12 L. J. Ch. 507; 7 Jm-. 613 245 Flureau v. Thornhill, 2 W. Bl. 1078 - - 122, 123, 124, 126, 295 Fordyce v. Ford, 4 Bro. C. C. 494 - - - - - 13, 105 Forrer v. Nash, 35 Beav. 167 ; 11 Jur. N. S. 789 ; 14 W. E. 8 - 109, 275 Forteblow v. Shirley, 2 Swanst. 223 (sub. nom. Horniblow r. Shirley in 13 Yes. 81) - - - - - - -36,116 Foster v. Leonard, Cro. Eliz. 1 - - - - --182 Foxcraft v. Lyster, 2 Vern. 456 ; Prec. Ch. 519 (sub. nom. Lester v. Fox- craft, 1 Colies P. C. 108) - - - - - - 384 Freeland v. Pearson, 7 Eq. 246 235, 236 Freer v. Hesse, 4 De G. M. & G. 495; 23 L. J. Ch. 338; 2 Eq. E. 13 - 195, 199 Freer v. Eimmer, 14 Sim. 391 - - - - - - 180 Freme v. Wright, 4 Mad. 364 - - - - - - 218 Frend v. Buckley, L. E. 5 Q. B. 213 ; 39 L. J. Q. B. 90 ; 23 L. T. N. S. 170 ; 18 W. E. 680 ; 10 B. & S. 973 226 Frost V. Brewer, 3 Jur. 165- - - - - -- 266 Friihling v. Schroeder, 2 Bing. N. C. 77 - - - - - 120 Fuller V. Wilson. See Wilson v. Fuller. G. Gabriels. Smith, 16 Q. B. 847 ; 20 L. J. Q. B. 386; 17 L. T. 61; 15 Jiir. 1124 - - - - - - - - 335 Gale V. Sqiiier, 4 Ch. D. 226; 5 ibid. 625; 46 L. J. Ch. 373, 672 ; 36 L. T. N. S. 632 ; 25 W. E. 226 - - - - - - 322 Gardiner v. Tate, 10 L. E. Ir. 460 - - - - - 48 Gardom v. Lee, 3 H. & C. 651 ; 34 L. J. Ex. 113 - - - - 316 Gas Light and Coke Co. v. Towse, 35 Ch. D. 519 ; 56 L. T. N. S. 602 - 124 Gedge v. Duke of Montrose, 26 Beav. 45 - - - - 296 Gerhard v. Bates, 2 El. & B. 476 ; 20 L. J. Q. B. 364 ; 1 W. E. 383 ; 17 Jur. 1097 ; 1 Com. L. E. 868 - - - - - 16, 27 Gibson V. D'Este, 2 Y. & C. C. C. 542 ; 2 L. T. 186 ; 8 Jur. 94 - - 160 Gibson v. Spurrier, Peake, Add. Cas. 49 - - - - 115, 189 Gibson v. Woollard, 5 De G. M. & G. 835 ; 24 L. J. Ch. 56 ; 24 L. T. 137; 3W. E. 94; 3Eq. E. 152 - - - - -372 Gilliatt V. GiUiatt, 9 Eq. 60 ; 39 L. J. Ch. 142 ; 21 L. T. N. S. 522 ; 18 W. E. 203 1 <6 TABLE OF CASES. XXVll FAOB Girling v. Girling, W. N. 1886, p. 18 241 Gleugal (Eiui of) v. Barnard, 1 Keen, 769 - - - - - 376 Glenton to Iladen, Ee, 53 L. T. N. S. 434 - - - - 313 Gloag and Miller, Ee, 23 Ch. D. 320 ; 52 L. J. Ch. 654 ; 48 L. T. N. S. 629; 31 W. E. 601 _ _ _ . . -208,253 Goddard v. Jeffreys, 51 L. J. Oh. 57 ; 45 L. T. N. S. 674 ; 30 W. E. 269 - 17, 52, 75 Godwin V. Francis, L. E. 5 C. P. 295 ; 39 L. J. 0. P. 121 ; 22 L. T. N. S. 33S - - - - - - 127, 128, 129, 376 Golds and Norton, Ee, 52 L. T. N. S. 321 ; 33 W. E. 333 - - - 291 Goold V. Birmingham Bank, 58 L. T. N. S. 560 - - - - 225 Goold V. White, Kay, 683 ; 24 L. T. 43; 2 Eq. E. 110 - - - 233 Gordon r. Mahoney, 13 Ir. Eq. E. 383 - - - - - 209 Gorely, Ex parte, 4 De G. J. & S.477 ; 34 L. J. Bk. 1 ; 11 L. T. N. 8. 317 ; 10 Jur. N. S. 1085 ; 13 N. E. 60 - - - - - 301 Graham v. Oliver, 3 Beav. 124- - - - - - 140 Granger v. Worms, 4 Camp. 83 - - - - - - 38 Grant v. Munt, G. Coop. 173 - - - - - 44, 113 Gray v. Fowler, L. E. 8 Exch. 249 ; 42 L. J. Ex. 161 ; 29 L. T. N. S. 297; 21 W. E. 916 - - 126,250,251,305,310,315,316 Great Northern Eail. Co. and Sanderson, Ee, 25 Ch. D. 788 ; 53 L. J. Ch. 445 ; 50 L. T. N. S. 87 ; 32 W. E. 519 - - 100, 137, 312 Greaves v. Wilson, 25 Beav. 290; 27 L. J. Ch. 546; 31 L. T. N. S. 68; 4 Jul-. N. S. 271 ; 6 W. E. 482 - - - - 172,311,313 Green v. Pulsford, 2 Beav. 70 - - - - - 193, 199 Green v. Sevin, 13 Ch. D. 589 ; 49 L. J. Ch. 166 ; 41 L. T. N. S. 724 - 275, 277 Greenwood v. Churchill, 8 Beav. 413; 14 L. J. Ch. 143 ; 4 L. T. 135 ; 9 Jur. 196 - - - - - - - - - 283 Gregory v. Mighell, 18 Ves. 328 - - - - - - 385 Griffiths V. Hatchard, 1 K. & J. 17 ; 23 L. J. Ch. 957 ; 23 L. T. 295 ; 18 Jur. 649 ; 2 W. E. 672 - - - - - - - 356 GrisseU v. Peto, 2 Sm. & G. 39 ; 18 Jur. 591 ; 2 W. E. 178 - 52, 153 Groom v. Booth, 1 Drew. 548; 22 L. J. Ch. 961 ; 21 L. T. 253 ; 17 Jur. 927 ; 1 W. E. 423 - - - - - - - - 367 Grosvenor v. Green, 28 L. J. Ch. 173; 32 L. T. 252 ; 5 Jur. N. S. 117 ; 1 W. E. 140 - - - - - - - - 66 Grove v. Bastard, 2 Phil. 619; 1 D. M. & G. 69; 17 L. J. Ch. 351 ; 12 Jur. 385 - - - - - - - - - 193 Guest V. Homfray, 5 Ves. 818 - - - - - - 248 Guinness, Ex parte, 5 L. E. Ir. 616 - - - - - - 267 Gwillim V. Stone, 14 Ves. 128 - - - - - - 129 H. Hadley v. Baxendale, 9 Exch. 341 ; 23 L. J. Ex. 179 ; 18 Jur. 358 ; 2 Com. L. E. 517- - - - - - - - 127 Haines v. Burnett, 27 Beav. 500 ; 29 L. J. Ch. 289 ; 1 L. T. N. S. 18 ; 5 Jur. N. S. 1279 ; 8 W. E. 130 - - - - - 73 Hall's Estate, Ee, 9 Eq. 179 ; 39 L. J. Ch. 392 - - - - 149 Hall V. Laver, 3 Y. & C. 196 253 XXVIU TABLE OF CASES. PAOB Hall )•. Smith, 14 Yes. 42G - - - - - . - Go Hallows V. Toruie, 8 Ch. 407 - - - - - 48, 60 Halsey v. Grant, 13 Yes. 73- - 109, 111, 114, 115, 131, 155, 157 Hamilton r. Buckmaster, 3 Eq. 323 ; 3(5 L. J. Ch. 58 ; 15 L. T. N. S. 177 ; 15 W. R. 149 202, 203, 207 Hampshire v. Wickens, 7 Ch. I), ooo; 47 L. J. Ch. 243 ; 38 L. T. N. S. 408 ; 26 W. E. 491 - - - - - -71,73 Haubury r. Litchfield, 2 Myl. & K. 629 ; 1 Ha. 62 - 107, 146, 232 Hanks r. Tailing, 6 E. & 15. 659 ; 25 L. J. Q. B. 375 ; 27 L. T. 170; 4 W. R. 607 ; 2 Jur. N. S. 372 _ _ - - - 214, 219 Hanslip *•. Tadwick, 5 Ex. 615; 19 L. J. Ex. 372 - 124, 125, 126 Harding i'. , 4 L. J. Ch. 213 - - - - - - 332 Hardnian *•. Child, 28 Ch. D. 712 ; 51 L. J. Ch. 695 ; 52 L. T. N. S. 465 ; 33 W. R. 544 - - - - - - 305, 307, 310 Hardwicke (Earl of) v. Lord Sandys, 12 M. & AY. 761 ; 13 L. J. Ex. 633 ; 3 L. T. 60 300 Hargreaves and Thompson, Re, 32 Ch. Div. 454 ; 56 L. J. Ch. 199 ; 55 L. T. N. S. 239 ; 34 W. R. 708 - - - - 119, 130 Harington v. Hoggart, 1 B. & Ad. 577 ; 9 L. J. Q. B. 14 - - - 181 Harnett v. Baker, 20 Eq. 50; 45 L. J. Ch. 64 ; 32 L. T. N. S. 382 ; 23 W. R. 559 - - - - - - 216, 217, 218, 220 Harnett v. Yeileling, 2 Sch. & L. 549 - - - - 98, 136 Harry v. Davey, 2 Ch. D. 721 - - - - - - 193 Hart V. Hart, 1 Hare 1 ; 11 L. J. Ch. 9 ; 5 Jur. 1007 - - - 331 Hart V. Swaine, 7 Ch. 1). 42; 47 L. J. Ch. 5; 37 L. T. N. S. 376; 26 W. R. 30- - - - - - - - 86, 105 Hartley v. Smith, Buck. 368 - - - - - - 198 Harvey t'. Harvey, 2 Str. 1141- - - - - -184 Harvey v. Philips, 2 Atk. 541 - - - - - - 331 Harvey v. Young, Yelv. 20 - - - - - 23, 28 Hatten v. Russell, 38 Ch. D. 334 ; 57 L. J. Ch. 425 ; 58 L. T. N. S. 271 ; 36 W. R. 317 - - - - - - - - 275 Hawkins v. Holmes, 1 P. "Wms. 770 _____ 385 Haycraft v. Creasoy, 2 East, 92 - - - - - - 87 Haydon v. Bell, 1 Beav. 337 ; 2 Jur. U)()H - - - - 254 Hayford v. Criddle, 22 Beav. 477 - - - - - . 39 Haywood v. Cope, 25 Beav. 140 ; 27 L. J. Ch. 468 ; 31 L. T. 48 ; 4 Jur. N. S. 227 ; 6 W. R. 304 - - - - - 38, 61 Heath v. Heath, 1 Bro. C. C. 147 - - - - - - 194 Heatley v. Newton, 19 Ch. Div. 326 ; 51 L. J. Ch. 225 ; 45 L. T. N. S. 455 ; 30 W. R. 72 - - - - - - - 177 Henderson v. Barnewall, 1 Y. & J. 387 - - - - - 378 Henderson v. Hudson, 15 W. R. 860 - - - - - 54 Heppcnstall r. Hose, 51 L. T. N. S. 589 ; 33 W. E. 30 - - - 305 Herbert v. Salisbury & Yeovil Rail. Co., 2 Eq. 221 ; 14 L. T. N. S. 507 ; 14 W. R. 706 - - - - - - - - 288 Heseltine v. Simmons, 6 W. R. 268 - - - - - - 193 Haywood v. Mallalien, 25 Ch. D. 357 ; 53 L. J. Ch. 492 ; 49 L. T. N. S. 658 ; 32 W. R. 538 162, 242, 265 TABLE OF CASES. XXlX PAGE Hick V. Phillips, Prec. in Ch. 575 - - - - - 105 Hickson v. Darlow, 23 Ch. Div. 690 ; 52 L. J. Ch. 453 ; 48 L. T. N. S. 449 ; 31 W. E. 417 - - - - - - - 359 Higgins and Ilitchman, Ee, 21 Ch. D. 95 ; 51 L. J. Ch. 772 ; 30 W. E. 700 -------- 42, 359 Higgins and Percival, Ee, 59 L. T. N. S. 213 - 119, 120, 130, 239 Higgins V. Samels, 2 J. Sz H, 460 ; 7 L. T. N. S. 240 - 27, 60, 61 Higginson v. Clowes, 16 Ves. 516 - - - 162, 171, 183, 354 Highgate Archway Co. v. Jeakes, 12 Eq. 9 ; 40 L. J. Ch. 408 ; 24 L. T. N. S. 567; 19 W. E. 692- - - - - - -206 Hilbers v. Parkinson, 25 Ch. D. 200 ; 53 L. J. Ch. 194 ; 49 L. T. N. S. 502 ; 32 W. E. 315 - - - - - - - 100 Hillv. Buckley, 17 Ves. 394 - - - 12, 53, 110, 135, 141, 145 Hill V. Gray, 1 Stark. 434 ------ 22 Hinde v. Whitehouse, 7 East, 558 ; 3 Smith, 528 - - - - 381 Hinton v. Sparkes, L. E. 3 C. P. 161 ; 37 L. J. C. P. 81 ; 17 L. T. N. S. 600 ; 16 W. E. 360 - - - - - - 343, 347 Hipwell V. Knight, 1 Y. & C. Ex. 401; 4 L. J. (N. S.l Ex. Eq. 52 249, 271, 279 Hitchcock V. Giddings, 4 Pri. 135 - - - - - 80 Hobsou V. Bell, 2 Beav. 17 ; 8 L. J. (N. S.) Ch. 241 ; 3 Jur. 190 - -249, 256, 366, 367 Hodges V. Lord Litchfield, 1 Bing. N. C. 492 ; 1 Sc. 449 - 125, 126 Hodgkinson v. Crowe, 19 Eq. 591 ; 10 Ch. 622 ; 44L. J. Ch. 680; 33L. T. N. S. 388 ; 23 W. E. 885 - - - - - 72,73 Honywood v. Honywood, 18 Eq. 306 ; 43 L. J. Ch. 652 ; 30 L. T. N. S. 671 ; 22 W. E. 749 - - - - - - - 182 Hood V. Lord Barrington, 6 Eq. 218 - - - - - 379 Hooper v. Smart, 18 Eq. 683 ; S. C. under name of Bailey v. Piper, 43 L. J. Ch. 704 - - - - - - 132, 137, 145 Hopcroft V. Hickman, 2 S. & St. 130 - - - - - 187 Hopkins v. Grazebrook, 6 B. & C. 31 ; 9 D. & E. 22 - - - 123 Horn V. Baker, 9 East, 215 - - - - - - 184 Horniblow v. Shirley, 13 Ves. 81 - - - - 148, 155, 157 Horrocks v. Eigby, 9 Ch. D. 180; 47 L. J. Ch. 800; 38 L. T. N. S. 782; 26 W. E. 714 - - - - - - 99, 133, 137 Howard v. Castle, 6 T. E. 642 - - - - - - 178 Howard v. Shaw, 8 M. & W. 118 - - - - - 298 Howe V. Smith, 27 Ch. Div. 89 ; 53 L. J. Ch. 1055 ; 50 L. T. N. S. 573; 32 W. E. 802 - - - - 274, 342, 343, 344, 347, 350 Howell V. Kightley, 21 Beav. 331 ; 25 L. J. Ch. 341, 868 ; 2 Jur. N. S. 455 ; 1 De G. M. & G. 739 ; 27 L. T. 61 ; 4 W. E. 477 - 221, 238, 239 Howland v. Norris, 1 Cox, 59 - - - - - 108, 114 Hoy V. Smithies, 22 Beav. 510 ; 28 L. T. 183 ; 2 Jur. N. S. 1011 308, 316 Hudson V. Bartram, 3 Madd. 440 - - - - 271, 278 Hudson V. Buck, 7 Ch. D. 683 ; 47 L. J. Ch. 247 ; 38 L. T. N. S. 56 ; 26 W. E. 190 - - - - - - - - 210 Hudson V. Temple, 29 Beav. 536 ; 30 L. J. Ch. 251 ; 3 L. T. N. S. 495 ; 7 Jur. N. S. 248 ; 9 W. E. 243 - - 270, 271, 272, 273, 312 Hughes V. Jones, 3 De G. F. & J. 307 ; 31 L. J. Ch. 83 ; 8 Jur. N. S. 399 ; 5 L. T. N. S. 408 ; 10 W. E. 139 - 36, 67, 68, 146, 252, 255 XXX TABLE OF CASKS. PAOE Hughes r. Kearney, 1 Sch. & Lef. 132 - - - - - 288 Hughes c. Morris, 2 Do G. M. & G. '6oG; 21 L. J. lb. T0 L. J. ('\\. -46:5 ; 4:3 L. T. N. S. S3 ; 44 ihid. 718 ; 28 W. E. 822 ; 29 ihid. 4:35 - - - 241 '^Tiittoinoro v. AVhittemoro. 8 E(i. (50:3 - - - - 02, 2()4 ^\Tiittington v. Cordcr, l(i Jur. 10:54 ; 20 I.. T. 17') ; 1 W. R. ;J()- m, 69, 190 Wiggins c. Lord, 4 Beav. :30 - - - - - . . 181 Wilde V. Gibson, 1 H. L. C. G20 ; 12 Jur. o27 ; 2 Y. & C. C. C. 542- 84, 92 Wilkins v. Fry, 1 Mer. 244 - - - - - - - 329 Wilkinson v. Castle. See Castle v. Wilkinson. Wilkinson v. Hartley, 15 Beav. 18:5 - - - - 320, 367 Williams v. Edwards, 2 Sim. 78 - - - - - 209, 309 Williams v. Glenton, 34 B. 528 ; 1 Ch. 200 ; 13 L. T. N. S. 727 ; 13 W. E. 1030 ; 14 ihid. 294 ; 11 Jur. N. 8. 801 ; 12 ihid. 175 - 281, 282, 283, 290, 291 Williams v. Lake, 2 E. & E. 349 ; 29 L. J. Q. B. 1 ; 1 L. T. N. S. 56 ; 6 Jur. N. S. 451 - - - - - - - - 378 Williams r. Shaw, 3 Euss. 178, n. - - - - -297 WilHams v. Wood, 16 W. R. 1005 - - - - - - 214 Wilmot V. Wilkinson, 6 B. & C. 506 ; 9 D. & E. 620 - - - 218 Wilson V. Clapham, 1 Jac. & W. 36 - - - - - - 299 Wilson V. Einch-Hatton, 2 Ex. D. 336 ; 46 L. J. Ex. 489 ; 36 L. T. N. S. 473; 25 W. E. 537 - - - - - - - 16 Wilson V. Fuller, 3 Q. B. 68 ; 3 G. & D. 570 - - - 56, 91 Wilson V. Greene. See Ee Cams- Wilson and Greene. Wilson v, Williams, 3 Jur. N. S. 810 - - - . 149, 155 Wiltshear v. CottrcU, 1 E. & B. 674 ; 22 L. J. Q. B. 177; 17 Jur. 758 - 184 Winch V. Winchester, 1 Ves. & B. 375 - - 12, 83, 110, 165, 166 t YV . xv. lot ---____ 120 Y. Young and Ilarston's Contract, Ee, 29 Ch. D. 691 ; 31 ihid. 168 ; 54 L. J. Ch. 1144 ; 53 L. T. N. S. 837 ; 33 W. E. 516; 34 ihid. 84 - 283, 284, 289 PAETICIJLARS AND CONDITIONS OP SALE. Part I. PARTICULARS OF SALE AND THE PURCHASER'S REMEDIES FOR A MISDESCRIPTION BY THE VENDOR. — ♦ INTEODUCTION. Note. — This Introductory Chapter contains a digest of the legal prin- ciples which are repeated, exjDlained and illustrated in the remainder of Part I. of this Book, pp. 9 — 169. Art. 1. On a sale of land it is tlie duty of tlie vendor to describe tlie property accm\ately, and in unambiguous language, to make no mistakes concerning it, and to mention any latent defects in it, or any incumbrances affecting it wliicb he does not intend to pay off. Neglect of this duty may be called briefly '* misdescription." See Chap. I. pp. 9 — 17. If the pm-chaser is induced (Art. 18) tlirough the vendor's misdescription (Art. 20) to buy property which he would not otherwise have bought, or to give a higher price than he would otherwise have given, he is, subject to the law as to notice (Art. 19), entitled to relief as mentioned in Arts. 23 — 27. Art. 2. If the vendor be a trustee, he has a twofold duty to perform; not only must he, as must an ordinary vendor, de- scribe the property correctly so as not to deceive the pm'chaser, but his description shoidd also be accm-ate in the interests of I'AIMIL'ULAKS OF SALK, KTC. his cenfui que fni.sf. lie must not oiuit any matter enhaucing the vahie, or insert nnuccessarily imything disparaging. See Tart II. Chai.. XYI. Art. ;{. II' the vendor intends to reserve any easements over tlie land, or rights inconsistent w illi the full enjoyment thereof, he must express liis intention in clear and e.\] "licit language. See Chai^. I. p. 10. Art. 4. If the particidars or conditions contain any under- taking on the part of the vendor, the i)m-chaser will be entitled to specific performance of such undertaking, if possible ; if not, to the relief mentioned in ^^'ts. 28 — 27. See Chap. I. p. lo. Art. 0. If the property be correctly described in the parti- culars, but the vendor afterwards alters the property so as to make the description incorrect, the purc'haser will be entitled to the same relief as if the vendor had misdeseribed the pro- perty : p. 16. Art. 6. If the description given in the particulars, though false at the date of the sale, is made true by an alteration in the property before the date fixed for completion, there is no mis- description : p. 16. Art. 7. Where the description is the usual and proper de- signation of the property, the purchaser cannot complain, even if he is deceived by such description : p. 17. Art. 8. Where it is clear that a literal interpretation of a description in the particulars would contravene a general rule of law or universal custom, and the description is capable of a modified interpretation or limited ai^jilication which would make it true, the purchaser cannot complain that he was de- ceived by such description : p. 17. Art. 9. Misdescription is of three sorts : — (1) positive mis- description or "misrepresentation"; (2) negative misdescription or " omission "; (3) ambiguity. INTKODUCTION. Art. 10. Misrepresentation is the statement that a fact or state of things exists, or that the property sold is of a certain nature or quality, when the contrary is the case. A statement though capable of an interpretation which would make it true will be treated as a misrepresentation — (i) if, under all the circumstances, it is equivalent to an active misstatement of fact, as, for instance, where the particulars contain such minute information as to certain defects as to imply the non-existence of other defects of the same kind ; (ii) if the statement is capable of two interpretations, and the interpretation which would make the statement true is one Avhich would not be likely to occur to a person of ordinary sense exercising ordinary care. The silence of the vendor may, under certain circumstances, amoimt to misrepresentation. See Chap. II. pp. 18 — 23. Art. 11, Misrepresentation, in order to entitle the purchaser to relief, must be misrepresentation of fact. Misrepresentation of a matter of opinion or of law is not enough. See pp. 23 — 30. Art. 12. The vendor may use laudatory epithets for the pm-pose of puffing the property, or make statements as to its value, or as to probable profits, chances, risks, or other matters of opinion ; and though the Court may consider such epithets and statements of oijinion not to be justified by the facts, yet if the statement involve no misrepresentation of a specific fact the purchaser will not be entitled to relief. See Chap. II. pp. 23—28. Art. 13. a representation of intention, if true at the time it is made, is not falsified by an alteration of that intention. A misrejDresentation of intention is a misrepresentation of fact. A representation of the vendor's intention may be equivalent to an undertaking or contract. See Chap. II. pp. 30—34. Art. 14. Omission is the neglect of the vendor to mention defects, incumbrances, or damaging facts, which the vendor ought to mention. The vendor ought to mention all matters affecting the value of the property except the following : — (a) Patent defects. A patent defect is a defect in the physical 1! 2 r.VK'TlCULAK.S OF SALK, 1:TC. condition ol' tlu' property Avliicli a piircliascr Avould be likely to discover if lie inspected llu' i)roperty mtli ordinary care. A latent defect is one which a ])urchaser inspecting the property with ordinary care would not be likely to discover. (b) Defects to which land usually is subject. (c) Defects necessarily or usually inherent in land of the same tenure as that which is being sold. (d) Local and public Acts affecting the property. (e) Usual and well-known customs as to the rights of tenants or mining rights. (f) The result of a recent valuation of the property, or of a previous attempt to sell. See Chap. III. pp. 35 — 42. Art. 15. If the vendor industriously conceals a patent defect, or makes a misrepresentation concerning that or any other matter which he is not bound to disclose, the purchaser will be relieved. See Chap. IV. pp. 43 — 45. Akt. 1 6. An ambiguity is a statement which is literally true, but which is susceptible of another meaning, which latter meaning might easily occur to a person of ordinary sense exercising ordinary care. If the meaning which would make the statement true is one which would not be likely to occur to a person of ordinary sense exercising ordinary care as a possible meaning, the statement is more than an ambiguity, it is a mis- representation. See Art. 10. If the other or untrue meaning is one not likely to occur to a person of ordinary sense exercising ordinary care, then the fact that the statement is capable of being misconstrued by an extraordinarily stujnd or careless person does not make it an ambiguity. If the purchaser com- plains of an ambiguity, he must tell the Court in what sense he understood it. See Chap. V. pp. 46 — 48. Art. 17. In the case of a mistake caused by an ambiguity, the purchaser will not be entitled to relief if the particulars or conditions contain some other statement from which the pur- chaser could have inferred the truth : p. 48. And see Art. 19. INTKODUCTION. Art. 18. The purchaser cannot complain of a misdescription if he was not deceived by it, or if he was not induced by it either to purchase something which he would not otherwise have purchased, or to give a higher price than he would have given had he not been deceived. See Chap. YI. pp. 49 — 63. Art. 19. In the absence of any active misrepresentation, the purchaser cannot complain that he was misled where he is fixed wdth notice of the true state of facts. The purchaser is held to be fixed with notice — (1) of all patent defects (see Ai't. 14) ; (2) of all facts stated in the particulars, or in the plan if incorporated with the agreement for sale, or referred to, and a reasonable oj)portunity for inspection offered ; (3) of the contents of a lease or other docimient to which the particulars refer the j)m-chaser for notice, provided reasonable opportunity for in- spection is offered. See Chap. YII. pp. 64 — 73. An active misrepresentation by the vendor excludes notice. Chap. II. pp. 19—23. Art. 20. Except in cases of " common mistake " and great hardship the pm-chaser will not be entitled to relief on the ground of a mistake made by himself and not caused by the vendor. Common mistake is a mistake of fact common to both parties and of such a natm-e that to enforce the contract would inflict very great hardship on one of the parties. See Chap. VIII. pp. 74—81. Art. 21. The purchaser is entitled to relief (see Aits. 23 — 27), whether the misdescription was innocent or fraudulent. But a fraudulent misdescription will entitle a purchaser — (a) to relief after completion; (b) to damages for loss of bargain where an innocent misdescription would only have entitled him to re- cover exj)enses actually incurred ; and (c) to rescind in cases where an innocent misdescription might only have entitled him to demand compensation. See Chap. IX. pp. 82 — 89. A fraudulent misdescription is a false statement made by a person knowing it to be false, or not caring whether it be true or false, or believing it to be true without having reasonable ground fur such belief. PARTICULARS OF SALE, ETC. Art. '22. An innocent misroprosontation made l»y the auctioneer or other person employed It}' the vendor as liis agent to sell the property -will, if made in the ordinary course of business as auctioneer or agent for sale, have the same effect on the rights of the vendor and purchaser as an innocent misrepresentation made by the vendor himself. If the vendor authorize his agent to make a representation which the vendor knows to be untrue, the vendor is guilty of fraud. If the vendor knowingly and purposely refer tlie piu'chaser to an ignorant agent for information, the vendor is liable as for fraud if the agent makes any misrepresentation. If the vendor knows that his agent has made a misrepre- sentation, and does not correct it, the vendor will (probably) be liable for fraud. If a fraudulent misrepresentation tending to the benefit of the vendor has been made by the agent in the course of business and acting within tlie limits of the authority ordinarily given to an agent for sale, the vendor is liable as for fraud. See Chap. X. pp. 90—93. Art. 23. The pui'chaser can, if he asks for relief before the conveyance is executed, compel the vendor to make good any errors or representations contained in the written contract if it be possible for the vendor to do so, unless this would lead to a breach of trust, or contravene some express enactment, or be prejudicial to the interests of third persons in the property sold, or would inflict great hardship on the vendor. See Chap. XIII. p. 99. Art. 2-1. If the vendor cannot or if the Court refuses to compel the vendor to make good the eiTor or representation, then, in the absence of any previous agreement between the parties as to compensation, the rights of the vendor and pm'chaser, in case the application for relief is made before the conveyance is executed, are as follows : — (i) The Court will, at the desire of the purchaser, rescind the contract if the en'or or representation was in an essential INTRODUCTION. matter, altliougli the vendor ^^'ould prefer to complete, giving compensation. See Chap. XIV. pp. 102 — 118. (ii) The Court will, at the desire of the vendor, decree partial performance with compensation if the error or representation was in a non-essential matter, and was not made fraudulently [and if compensation can be fairly assessed], although the pmx'haser would prefer to abandon the contract. See pp. 131 — ' 154. (iii) The Com-t will, at the desire of the pm'chaser, decree partial performance with compensation, although the error or misrejiresentation was in a matter which would usually be regarded as essential, and even though the vendor would prefer to abandon the contract, provided that the error or representa- tion was contained in the written contract, and that compen- sation can be fairly assessed. See pp. 131 — 154. (iv) If comiDensation is refused on the ground that it cannot be fairly assessed, the pm^chaser may rescind [or at his option accept an indemnity, p. 155]. If the Court refuses to decree either compensation or an indemnity, the purchaser is entitled to have the contract completed as far as the vendor can complete it. An " essential " error or representation is one whereby the purchaser was induced to pru'chase something which but for such error or representation he would never have purchased at all. A " non-essential " error or representation is one the only effect of which was to induce the piu-chaser to give a higher price than he would otherwise have given. Art. 25. Where the purchaser is entitled to rescind the contract he is also, in the absence of stipulation, entitled to recover his deposit with interest at 4/. per cent., and also, by way of damages, the expenses of and incidental to the sale properly incmTcd by the purchaser. If the vendor has been guilty of fraud or wilfully refuses to complete, the purchaser will be entitled to damages for the loss of his bargain. See Chaps. XV. and XVI. pp. 119—130. Art. 26. After the conveyance lias been executed tlie pur- PAiri'ICULARS OF SALEj ETC. chaser will not 1)0 (.■utitled to relief other than that which he may obtain under the covenants for title or tlio condition for compensation, except in tlic follomng cases : — (1) Where there are incumbrances whicli have been created by the vendor him- self or are covered by the covenants for title tlio purchaser may liave them paid out of the unpaid purchase-money; (2) where the vendor has been guilty of fraud, or a " common mistake " has been made (see Art. 20), the execution of the conveyance does not bar the purchaser's right to relief. See Chap. XX. pp. 158—160. AiiT. 27. If the error or representation is not contained in the written contract, then — (i) Tlie vendor cannot enforce specific performance of the contract without making good the error or representation, or giAing compensation therefor. If the error or representation be essential, or if the vendor made it fraudulently^ the vendor cannot enforce partial performance even with compensation. (ii) The purchaser cannot enforce partial performance with compensation. (iii) If the error or representation be essential, the purchaser may rescind and obtain the ancillary relief mentioned in Art. 25. See Chap. XXI. pp. 161— IGO. ( ^> ; CHAPTER I. MISDESCRIPTION. On a sale of laud, it is the duty of the veudor to describe the Duty of property accui'ately and iu unambiguous language, to make no misstatements concerning it, and to mention any latent defects in it, or any incumbrances affecting it which he does not intend to pay off. Neglect of this duty may be called briefly mis- description. If the vendor be a trustee he has a twofold duty to perform ; Trustee, not only must he, as an ordinary vendor must, describe the pro- perty correctly, so as not to deceive the purchaser, but his description should also be accurate in the interests of his cestui que truat. He must not omit any matter enhancing the value or insert unnecessarily anything disparaging. See f lu-ther as to this. Chap. XXXVII. on Depreciatory Conditions, p. 358. The following are some instances of misdescription, but many Examples of more will be found in Chap. XIV. pp. 105—117 :— SoJ?^"'"'''^" Four undivided sevenths of seven acres described as "fom* acres" : Arnold v. Arnold, 14 Ch. Div. 270. Redeemed land tax, consisting of several simis charged on separate parts of the property, described as an aggregate amount charged on the whole property : Cox v. Corenfon, 8 Jiu'. N. 8. 1142. Leaseholds described as being sold '' by order of the execu- tors," which were in fact being sold by the administrator de bonis non of the testator, with the will annexed, durante absentia of his next of kin : Webb v. Kirby, 7 D. M. & Gr. 376 (in effect reversing Stuart, V.-C, 3 Sni. & Gr. 333). A sum in gross, which was paid for the right to use land as a 10 PARTICULAKS oF .SALK, 1:TC'. Construction of certain words. pleasure-ground or garden, described as a " freehold ground- rent" : Evans v. liohinfi, 31 L. J. Ex. 465. Land described in the particulars as " a valuable tavern lot," "svliere the vendor was bound by a covenant prohibiting user otherwise than as a private dwelling-house or shop, and by a covenant not to commit a nuisance on the property : Coombs v. Cook, 1 Cab. & Ell. 75. " Free public house," where tlie lease contained covenants to take beer from the lessor : Jones v. Ednoj, 3 Camp. 285 ; Modlen V. Snon-boll, 29 Beav. 641. The desf'ri])tion " public house," where there was only an off- licence (lu-obably, see Fcasc v. Coats, 2 Eq. 688, a case on the construction of a covenant). An agreement, made at tlie instance of the lessees, to grant a lease of a seam of coal " called the »S. vein, and being about two feet tliick," was held not to contain a representation or warranty that the seam actually existed, and specific performance was decreed, although the lessees were unable to find any coal : Jfiffcnjs V. Fairs, 4 Ch. D. 448. "All that the agreement amounts to is a licence to enter and search for the vein of coal and make what they could of it": Bacon, V.-C. It would, probably, have been held to be a misdescription if the vendor had advertised the land containing the seam of coal for sale under the same description, because the advertisement would imply that the seam w^as two feet thick in one part at least, i. c, that the seam existed. See below, p. 38. The following words occiu'ring in particulars of sale have had their meaning fixed by the Com-t : — " Acre " means a statutory acre : Forh/iait v. J////, 2 Ivuss. C70. " Clear yearly rent," as between vender* and piu'chaser, means a rent clear of all outgoings and incumbrances, except those (such as land tax) which are usually, or by local custom, borne by the landlord : per Lord Hardwicke in Ti/rconnel v. Ancaster, 2 Yes. sen. at p. 504. And a representation that the estate " clears a not value of 90/. per annum " is false if the owner has to spend 50/. per annuin in repairing a sea wall : SJiirJoy v. Stratfou, 1 Bro. C. C. 440. MISDESCRIPTION. 11 '' Ground rent " is the sum paid by the owner or builder of houses for the use of Land to build on, and is, therefore, much under what it lets for when it has been built on : Barilctt v. Salmon, 6 D. M. & G. 33. The statement that certain cottages on the property are '' in the occupation of the S. colliery or their under-tenants or work- men " is not sufficient if the owners of the S. colliery are entitled to occupy without paying rent : Brandling v. Phimmcr, 2 Drew. 427. The words "tenant at will at a yearly rent" are a suffi- ciently correct description of a tenant from year to year : Pope V. Garland, 4 Y. & C. at p. 399. " A moiety of a plot containing 2,495 square yards " means an undivided half share in the whole plot, and the bidding being by the square yard, the purchaser w^as held to have con- tracted to pay an amount equal to 2,495 times the sum men- tioned by him, and not half that amount : Chamberlain v. Lee, 8 L. J. N. S. Ch. 26G. In determining whether a misdescription has been committed, "More or it is sometimes necessary to decide what construction slioidd be placed on such expressions as " more or less," " about," " by estimation," " probable amount," &c. " The effect of the words ' more or less,' added to the state- ment of quantity, has never been yet absolutely fixed by deci- sion, being considered sometimes as extending only to cover a small difference the one way or the other, sometimes as leaving: the quantity altogether uncertain, and throwing upon the pur- chaser the necessity of satisfying himself with regard to it. In this instance the description is rendered still more loose by the addition of the words ' by estimation.' The estimated extent of ground frequently proves quite different from its contents \>j actual measurement. It cannot be contended that the terms estimated and measured have the same meaning. If a man were told that a piece of land was never measured, but is estimated to contain forty-one acres, would that representation be falsified by showing that when measiu^ed it did not contain the specified number of acres ? The only contradiction to that proposition would be that it had not been estimated to contain so much." — less." 12 PARTICULARS OF SALE, ETC. "Usual covenants. Misleading statements. Per Grant, M.R., in Winch v. Winchester, 1 Ves. & B. 375, where a deficiency of five out of fort^'-oue acres was held to be covered by these expressions. It may be doubted whether Winch v. Winchester would now be followed to its full extent : a deficiency of nearly an eighth seems too great to be covered by such expressions as *' by esti- mation " and " more or less." In HiU\. BucMey (17 Ves. 394, at p. 400 j it was said that " more or less " would cover a deficiency of two or three, but not of twenty-six, acres out of 217. But compensation was decreed for a deficiency of two acres on a sale of land described as " about 186 acres" : Calcrqft v. JRoebuek, 1 Ves. jun. 221. Property having a frontage of 69 ft. 6 in. was described as "about 63 feet frontage;" it was held that tiiis was not a misdescription within the condition allowing compensation to the vendor : Bourne v. London 8fc. Co., W. N. 1885, p. 109. Property having a depth of 204 feet was described as 217 feet deep, and there was a condition that " tlie quantities are to be taken more or less." The deficiency was held to be immaterial : Lcthhridge v. Kirkinan, 25 L. J. Q. B. 89. If the quantity is given not merely in acres, but in acres, roods, and perches, the particularity of the statement would convey the notion of actual admeasm-emeut [Hill v. Buchh'ij, 17 Ves. at p. 401), and the addition of the words " more or less " could only avail to cover a very slight deficiency. But in an Irish case [lie Byan^s Edate, Ir. R. 3 Eq. 255) the words " deduct probable amount of tithe rent-charge, 9/. 18.S. 5f/.," though going minutel}^ into the amount, were held to be sufficient to cover an actual rent-charge of 10/. 8.s. bd., and no compensation was given to the purchaser. The demand for compensation was made after completion, but the case was not decided on that ground. Another point of construction which has often arisen on a sale of leaseholds is what is meant by the expression " usual covenants." This is discussed at p. 71. A statement may be made which, thcjugh literally true, is calculated to mislead. This may haitpon either because it is a partial statement of facts ^tut forward as a complete statement, MISDESCRIPTIOX. 13 or because the words used are ambiguous. Such misleading statements entitle tlie purcliaser to relief, and may, therefore, be classed under the general head of misdescrij)tion. The following are instances of statements literally true, but Examples. misleading in effect : — A statement that woods " produced 250/. per annum on an average of the last fifteen years," the fact being that that amount was only produced by racking the woods beyond the course of husbandry : Lo/nidcs v. Lane, 2 Cox, 363. The description of property as " let on a lease containing all the usual covenants to repaii'," the vendor knowing, but omitting to state, that there is no person who can be made liable upon the covenants : Fiinf v. WoocUn, 9 Hare, 618, at p. 621. Where the particulars described the property as "held for twenty-one years by lease from C, who holds upon lives under the Dean and Chapter of W., with covenants to renew the same twice twenty- one years more to make a complete term of sixty- tliree years," and omitted to mention that C. was only tenant for life of the church lease, and that his covenant to renew the sub-lease was not binding on his remaindermen as such, the particulars were held to be misleading : MilUgan v. Coolie, 16 Yes. 1. " In the occupation of C. at a rental of 42/." is a misleading description if C. is not the vendor's tenant, and does not pay rent to him : LacJilan v. Reynolds, Kay, 52. The description " enclosed by a wall, with a tradesman's entrance," is misleading if the wall belongs to a third person and the entrance is iised on sufferance : Brc/rer v. Brotrn, 28 Ch. D. 309. An estate of seventy acres, sixty-two of which were leasehold, and only eight freehold, was described as " freehold estate, with leasehold adjoining," The purchaser would have been relieved if he had not waived his right to complain of the description : Fordyce v. Ford, 4 Bro. C. C. 494. But the statement on the sale of an advowson that the living- would become vacant on the death of a jierson aged eighty- two, was held not to amount to a representation that the 14 rAiniCL'LAKS OF SALE, ETC. iitcumheufs ngo Avas eighty-two : Troirer v. Neucomo^ 3 Mer. 704. The representation that tlie property had heen mortgaged for 2,000/. is niisk^ading if the mortgage comprises other property, and this fact is not stated, or if tlie mortgagor was compelled to redeem and to pay money to the mortgagee for having repre- sented that th(» projicrty was wortli 2,00UA : Jfn//fiis v. Miller, 22 Ch. IJ. 194, at p. 201. A fann forming one-third of the estate sold was described as *' lately in the occupation of II., at an annual rent of 290/. 15.«. Now in hand." The farm, after passing through several hands, and sometimes hoing unoccupied, had heen occupied by II. for the quarter froui Midsummer to ]\[ichaelmas for 1/., and then for one year only at the rent mentioned in the particulars. When II. left, the vendor agreed to let it to N. for 225/., hut the agreeuient was afterwards cancelled. It was proved that the farm would not let for nearly so much as 290/. 15.s. The Court held that the statement of the rent was meant as a test of the value of the property ; that it was an unfair test, and calcu- lated to mislead ; and that the vendor had not shown the good faith which is requisite in preparing conditions of sale: Diiiunoch y.Hallctt, 2 Ch. 21. On the sale of a small residential property the plan showed the west side as bounded by a shrubbery, and the purchaser, inspecting the property with the plan in his hand, found on the west side a shrubbery, including three magnificent elms, bounded on the west by an iron fence, and thought he was buying every- thing up to the fence. The real boundary was marked by stumps only, which were hidden by slu'ubs. The three elms were outside the real boundary. The purchaser was not com- pelled to complete, as the plan was misleading, OAving to the position of the only fence which was visible, although in itself the plan was quite accurate, and, whilst showing the other trees on the property, did not include the tlu-ee elms : Dciniij v. Hancorl-, 6 Ch. 1. Eeference to Although the property has been accui'ately described in the particulars, reference to another docimient more favourable to the purchaser ma}' ovenide the correct description in the par- lease. MISDESCRIPTION. 13 ticulars. Tims, reference to a lease not containing restrictions mentioned in the description of the property given by the par- ticulars has been held to entitle the purchaser to rescind if he cannot obtain a valid and subsisting lease free from such restrictions, even though the restrictions were contained in the agreement for the lease, and ought to have been inserted in the lease itself. Thus, on the sale of a "bonded sugar refinery," reference to the lease, which did not (though the agreement for the lease did) restrict the user of the property to the refining of sugar " in bond," was held to entitle the purchaser to have the property free from this restriction, notwithstanding the word " bonded " in the particulars ; and as the lessors had filed a bill against the vendor to have the lease rectified by the insertion of the words " in bond," the pm-chase-money, which had been paid into Court, was retained there pending the decision of the suit : Bentley v. Craven, 17 Beav. 204. In that case it would seem the piu'chaser was justified in assuming that the lease showed the legal rights of the vendor, and that the particulars merely stated the use to which the property was then being put, and were not intended to mean that the property could not be put to any other use. If the vendor intends to reserve any easements over the land. Reservations, or rights inconsistent with the full enjoyment of the land, he must express his intention in clear and explicit language. On the sale of a house the statement that the adjoining pro- perty of the vendor is "building land," would probably not be held to be a sufficiently explicit reservation so as to entitle the vendor to build in obstruction of the light to such house : see Swanahovouyh v. Coventry, 9 Bing. 305. In that case the dispute arose on the conveyance, which expressly gave the purchaser the lights and easements belonging to the house sold. There had been a single-storied house on the " building land." The Court held that the pm-chaser of the parcel described in the particulars as " building land" might not build so as to obstruct the other purchaser's light. If the particulars or conditions contain any undertaking on Undertaking. the part of the vendor, the purchaser will be entitled to specific performance of such undertaking if specific performance is 1(] I'AKTRTLAHS OF SALH, ETC. Implied xindertakinors. Alteration of property. po:ssil)lo. An uiuk-rtakiiig- to make a road aud archway was specifically enforced in Sforer v. Great Western Baihra;/, 2 Y. c^ C. Ch. 48. If the vendor, throng;li want of title, is nnalilo to perfomi his undertaking, as where ho is merely a lessee, and has no power to make a specified road, the purchaser will be entitled to relief (/. e., rescission or compensation according to the rules laid down, p. 97) : Pencocli- v. Penson, 11 Beav. 355. A contract for a lease of a " newly-built house," to contain covenants on the part of the lessee to repair, implies an under- taking on the part of the lessor to deliver the house in complete tenantable repair, proper to the cliaracter of the house : Ti/des- leij V. ChrUon, 30 Beav. 419. An agreement to let a furnished house implies a condition that the house shall be fit for occupation at the time at which the tenancy is to begin. If, then, the drainage is bad, and is not put right till after the time fixed for the commencement of the tenancy, the tenant will be entitled to rescind : Wihon v. Finch Ilafton, 2 Ex. D. 336. A statement by the vendor that he " guarantees " a certain amount of profit per annum will not be enforced as an under- taking ; but it may amount to a misrepresentation : Gerhard v. Bates, 2 Ell. & B. 476. See Chap. 11. p. 27. If the property be correctly described in the particulars, but the vendor afterwards alters the property so as to make the description incorrect, the pm-chaser will be entitled to the same relief as if the vendor had misdescribed the property. If the alteration is in an " essential" matter (see Chap. XIV.), the pur- chaser will be entitled to rescind : Magennis v. Fat/on, 2 Mol. 561, where the vendor cut the ornamental timber (see p. 113). If non-essential, the pm-chaser will be entitled to compensation. The converse proposition seems also to be true, that if the description, though false at the date of the sale, is made true before the date fixed for completion there is no misdescription. Thus, on a sale of property let to weekly tenants, the rents at the date of issuing the particulars were less than the amount stated in the particulars, but subsequently, and before the com- pletion of the contract, were, in consequence of recent repairs MISDESCRIPTION. 17 made by tlie vendors, raised to tliat amount in pursuance of a notice to tliat effect given to the tenants, wlio (apparently) acquiesced in the increase of rent ; it was held that there was no misdescription : Goddavdy. Jeffreys, 51 L. J. Cli. 57. Where the description is the usual and proper designation of Correct the property, the piu-chaser cannot complain, even if he has misleading. been deceived by such description. A house was sold by the description, " No. 39, Regency Square, Brighton " ; this was the usual name of the house, although the house was not in the square but in a side street, and had no sea view. The purchaser, who had bought the house because he thought it was in the square, and so expected to have a sea view, was held to his bargain : White v. Bradshau\ 16 Jur. 738. But the descrip- tion, " No. 58, on the north side of Pall Mall, opposite Marl- borough House," was held to be a misdescription, because, though the usual name of the house was No. 58, Pall Mall, it did not abut on that street, being built at the back of No. b7, and communicating with the street merely by a passage, about 65 feet long and 3 feet 8 inches wide : Stanton v. Tattersally 1 Sm. & &. 529. Where it is clear that a literal interpretation of a description Literal con- in the particulars would contravene a general rule of law or imiiossiblo. universal custom, and the description is capable of a modified interpretation or limited application, which would make it true, the purchaser cannot complain that he was deceived by such description. Thus, where a manor was sold with the representa- tion "the fines are arbitrary," the fact being that the fines in respect of freebench were certain, but all other fines arbitrary, there was no misdescription, because fines on the admission of a widow to freebench never are arbitrary, and the description was necessarily limited to such fines as are certain in some manors and arbitrary in others: White v. C addon, 8 CI. & P. at pp. 786 and 796. In that case, however, there was a misdescription, as the fines on descent were certain, those on alienation alone being- arbitrary. w. 18 rARTRULARS OF SALE, ETC. CHAPTER II. MISREPRESENTATION. Misdescription maybe conveniently divided into tliree kinds — (1.) Positive Misdescription or ^lisrepresentation ; (2.) Negative Misdescription or Omission ; (3.) Ambiguity. Misrcpre- Misrepresentation is tlie statement tliat a fact or state of sentation. , . . tmngs exists, or tiiat the property sold is of a certam nature or quality "svlien tlie contrary is the case. Importance The distinction between positive misstatements and mere of distinction. . . , . . . . .. -. -,-,,, ., omissions or ambiguities is sometimes important. Where the jiiu'chaser is aifected with notice of a fact so that he would be precluded from comj^laining of the vendor's omission to mention the fact, a positive misrepresentation by the vendor has the effect of excluding the notice. And where the vendor's title is not bad but only " doubtful," if the vendor has made a mis- representation the pui'chaser may, in addition to rescinding, recover his deposit, but in the absence of positive misrejoresen- tation the purchaser would not be allowed to recover the deposit : see Nottingham Brick Co. v. Butler, 16 Q. B. Div. 778, at p. 787. Behors the Misrepresentation has sometimes been distinguished from mis- contract. , . . , . 1 • ii descri]3tion as being dehors the contract, i.e., made in the course of the treaty but not incorporated in the contract, whilst the description is part of the contract. Tlie judgment in Behn v. Burnens, 3 B. & 8. 751, shows the difficulty of distinguishing misrepresentation as being dehors the contract, because " though representations are not usually contained in the written instru- ment of contract, yet they sometimes are" {ihid., ji. 754), and the real question is not whether the statement is a misdescription or MISREPRESENTATION. 19 misrepresentation, l)ut whether it '" was intended to he a suhstan- tive part of the contract " : Und. It would he idle, were it not impossihle, to say, with regard to any written contract of sale, what parts of the document are the agreement hetween the par- ties, and what parts are merely representations hy the vendor. They are all part of the contract, though not all of equal im- portance; and where it is necessary to distinguish between descriptions which form " a substantive part of the contract" and those which do not, this may be done effectually by terming the one "essential" and the other " non-essential." See Chap. XIV. It is, of com'se, sometimes important to distinguish between a misrepresentation contained in the contract and a misrepre- sentation made by parol only ; but it is not expedient to mark this distinction by calHng the one a misdescription and the other a misrepresentation. Moreover, the Courts have long employed the word "misrepresentation" as meaning a positive statement of that which is untrue whether the statement be dehors the contract or embodied therein ; thus an " action for misrepresen- tation " would lie as well for a misrepresentation contained in the written contract as for a verbal misstatement of fact inducing the purchaser to enter into the contract. Although, as a general rule, a vendor is not guilty of mis- Misleading representation unless he makes some positive misstatement, there ' ™ ^ ^• are exceptions to this rule. The vendor's statements, though literally true, may be calculated to mislead, or the conduct of the vendor or his agent may amount to misrepresentation, even though no actual misstatement of fact is made. In such cases the Court relieves the purchaser as if a misrepresentation had been made in actual words. It is not easy to distinguish between a misleading statement Ambiguity, which is literally true and an "ambiguity." Perhaps this is the difference ; in an ambiguity there are two possible meanings, either of which might be taken as the true meaning by a pur- chaser of ordinary sense who exercises ordinary care ; in a mis- leading statement there are two possible meanings, one true and one false, and the true meaning {i.e., the meaning which makes the statement true) is one which would not be likely to occur to a person of ordinary sense. v2 20 PARTICULARS OF SALE, ETC. Example. Detailed statements. Examples. In one caso tlie particulars stated tliat jiart of tlic land to be sold was held by A. and 13. " under an article of agreement for lease for four lives, bearing date 1804 and one year." In reality, the agreement was for a lease for four lives and one year from and after the expiration of a prior lease, which did not expire till 1843, and the tenants claimed to be entitled to a lease for four lives to be then named by them. The description was held to be so misleading as to exclude the effect of the notice of the lease of 1804, and to entitle the purchaser to rescind : Martin v. Coffer, 3 J. & L. 49G. Lord St. Leonards' said, " In my opinion there is here a statement which amounts to a rejiresentation by fair construction that in the year 1804 all the lives in the lease were named. But even though that were disputed I still should be of opinion that it was the duty of the vendor to state the fact in a manner free from ambiguity, and that the purchaser is not bound to take upon himself the peril of ascertaining the true meaning of the statement." IbkL, p. o07. Great particularity in respect to some defects implies the non- existence of other defects of the same kind, and the description, though literally true, may be as misleading as an actual state- ment that the other defects do not exist. Thus, on the sale of a leasehold house near Covent Garden Market, the particulars stated " no offensive trade is to be carried on, the premises cannot be let to a coffee-house keeper or working hatter," and this was considered as implying that other businesses of a non-offensive character could be carried on. As the lease prohibited several other businesses, including that of a fruiterer (a business the prohibition of which materially reduced the value of the house), the particulars were held to be misleading, and the purchaser entitled to rescind, although the lease was read aloud at the sale : FligJtt v. Booth, 1 Bing. N. C. 370. Jessel, M. R., in Smith v. Chudicick, 20 Ch. Div., at p. 57, says, " Suppose a man states some of the covenants of a lease, but does not state a restrictive covenant on carrying on trade, says nothing about it, but says go and look at the lease, can a pur- chaser complain?" It would seem from Flight v. Booth that he can if the whole effect of the statement concerning the lease is misleading, even though no direct misstatement is made. M ISKEPRESENTATJON. Wliere leasehold property, wliieli was subject to a ground rent of 43/., was put up for sale witli a minute description of the rents received by sub-letting, and of a mortgage upon the property, but with no mention of the ground rent payable, this was considered as equivalent to a representation that there was no ground rent or only a very small ground rent, and the purchaser was held not to be affected by notice of the lease to which the particulars referred, and a perusal of which would have corrected the erroneous impression made by the particulars : Joncii Y. H'nnmcr, 14 Ch. Div. 588, An agreement for an under-lease of a house to be granted by A. to B. stipulating that there should be the usual covenants, and that the house should not be converted into a school, was considered as amounting to a rejiresentation that A. had the power to grant a lease without any other restrictive covenants ; and as A. held under a lease containing other restrictive cove- nants, this was held to be a misrepresentation disentitling him from specific performance although B. had notice of the head lease : Van v. Co)-j)e, 3 M. & K. 269. But on an agreement for a twenty-one years' lease, to contain a covenant by the lessor " not to let any of the adjoining land for the pm-pose of making and burning bricks," the lease to be in the form of one to be inspected at the office of the lessor's solicitor, the lessee was held to be affected with notice of the fact (ascertainable from the form of lease referred to) that the covenant was to be confined to the lessor's life, and was not allowed to resist specific performance on the plea that the wording of the agreement was calculated to mislead him into thinking that he would get a covenant extending for the whole of the term : Daiccs v. Belts, 12 Jur. 709 (Lord Cottenham, L. C, reversing on this point Wigram, V.-C). Further, the silence of the vendor may, imder certain cir- Vendor's cumstances, amount to an actual misrepresentation. If, for instance, the vendor, on being informed by the purchaser of his intention to use the property in a particular way, remain silent, his silence is equivalent to a representation that he does not know of anything which would prevent the purchaser from using the property in that way. 21 rAirncuLAK's of .^alk, inc. Examples. State of the projierty. Example. Tluis if, on tliG treaty for an undcr-lciiso, tlie sub-lessee inform the sub-lessor that he intends to carry on a certain business on the premises, and the sub-lessor does not inform the sub-lessee that there are restrictive covenants in the superior lease which jjrohibit tlie sub-lessee's intended business, the silence of the sub-lessor is equivalent to a representation tliat there are no such covenants ; Fliyht v. Barton^ 3 My. & K. 282. If the vendor of a lease which prohibits dangerous trades sells to an oil-merchant, ^^•ho informs the vendor tliat he intends to store large quantities of oil on the promises, and the vendor thereupon tells him of certain prohibitions in the lease, but omits to state that dangerous trades are prohibited, this omission is equivalent to a rei")resentation tliat dangerous trades are not l)ro]ubited ; the vendor is presumed to know the tei-ms of his lease, and in such a case the pmx-haser is not bound to look at the lease : Power v. Barrett, 19 L. E. Ir. 450. On the sale of a Chiude, tlie purchaser, who was influenced by the name of the owner as a guarantee of the genuineness of the picture, supposed the picture to be the property of 8ir F. Agar, being led to that supposition by the fact that the agent was selling at the same time a number of Sir F. Agar's pictures. The agent knew of tlie purchaser's mistake, but did not undeceive him. The pm^chaser was allowed to rescind the contract : Ilill v. Gray, 1 Stark. 434. In Keatca v. Earl Cadogan, 10 C. B. 591, Jervis, C. J., says there was aggressive deceit in Hill V. Gray ; but this does not seem to have been the case. In a conversation between the vendor, the vendor's solicitor, and tlie purchaser's solicitor, the vendor said tliere were restrictive covenants in one of the old title deeds, and there- upon the vendor's solicitor said he was not aware of any restrictions. This statement was considered equivalent to a representation that the solicitor had seen the title deeds and found no restrictive covenants in them : Nottiiiyhaiii Brick Co. V. Butler, 16 Q. B. Div. 778. Even the state of the property coupled Asith tlie vendor's silence may in certain cases have the effect of misrepresentation so as to exclude notice. ThiLs, although the purchaser of a lease has notice of the MISREPKESENTATION. 23 restrictive covenants conttained in the lease, the effect of this notice is nullified if, at the time of the sale, a trade prohibited by the restrictive covenants is being actually carried on upon part of tlie demised premises. In such a case the purchaser is considered as " justified in assuming that the premises were lawfully in the condition in which he saw them " : S2)i(iuier v. IFak//, 11 Ir. Eq. Eep. 597. Misrepresentation, in order to entitle the pm'chaser to relief, must be misrepresentation of a matter of fact ; a misrepresenta- tion of a matter of opinion merely, or of law, is not enough. Puffiiuj Sfafoncitfs and Misrepresentation as to matters of opinion. A vendor is allowed to use laudatory epithets for the purpose Puffino- of pufiing the projDerty which he is selling, and to make state- "tatements. ments as to the value of the property, or as to probable profits, chances, risks, or other matters of opinion, provided that the statement does not involve a misrepresentation of a specific fact. The use of such epithets and statements of opinion, even if the Court considers them to be not justified by the facts, will not entitle the pm-ehaser to relief. The rule of Roman law is the same ; sinplex eommendatio non ohiigat. The theory is that praise conferred by the vendor and the vendor's estimate of the value of his own property do not influence, or at all events ought not to influence, the pui-chaser's judgment, and that, even if they are unfounded, the pm-chaser has suffered no wrong because he relied on his own opinion, or accepted the vendor's opinion at his own risk. See Chap. YI., p. 49. The principle that a mere puffing statement or expression of opinion by the vendor will not, even if unfounded, entitle the purchaser to relief, is applicable as well to actions of deceit as to actions for rescission or specific performance (see Harvey v. Young, Yelv. 20) ; and the same principle is observed in actions against directors for misrepresentations in the prospectus (see Bellairs v. Tachcr, 13 Q, B. D. ^0)2, infra, p. 27) ; and in actions on marine policies (see Anderson v. Pacific Insurance Co., L. R. 7 C. P. G5). Laudatory epithets and statements of opinion by the vendor Statemeuts •^ ■•■ i. J Qf opinion. 24 I'AIMICI'LAK.S UF tfALE, ETC. Expert's opinion. Examples of puffiiif^ state- ments. arc distinguisliod from definite misdescnptions by the use of sucli phrases as "mere puthug statements," "vague laudatory flom-ish,'' " a more nourishing description by an auctioneer," " loose opinion of the auctioneer or vendor as to an obvious fact," " puffing or specidutive commendation." It is not always easy to say whether a given statement is a puffing statement or expression of opinion, or whether it amounts to a statement of fact. " It is often fallaciously assumed that a statement of opinion cannot involve the statement of a fact. In a case where the facts are equally well-known to both parties, what one of them says to the other is frequently nothing but an expression of opinion. The statement of such 0})ini<)n is in a sense a state- ment of a fact, about the condition of the man's own mind, but only of an in-elevant fact, for it is of no consequence what the ojiinion is. But if the facts are not equally known to both sides, then a statement of opinion by the one who knows the facts best involves very often a statement of a material fact, for he impliedly states that he knows facts which justify his opinion" : per Bowen, L. J., in Smith v. Land Corporation, 28 Ch. Div. 7, at i>. 16. If the vendor make a false statement as to the opinion of an exj)ert, this, of coiu-se, is a misstatement of fact : see p. 28. But if he correctly state the expert's opinion and that opinion is wrong, there is no misstatement, and the purchaser who trusted the expert cannot say that he was deceived by the vendor. The purchaser might, perhaps, in some cases, have a right of action against the expert: Cann v. Wilhon, 39 Ch. D. 39. "Uncommonly rich water meadow land" was held to be no misrepresentation, although the land was in reality imperfectly watered : Scott v. JIaiisoii, 1 Sim. 13 ; on appeal 1 lluss. & Myl. 128. Leach, V.-C, and Lord Lyndhurst, there treated the epithet " uneoninionly rich " as applicable to the quahty of the land, and not of the irrigation, and Leach, V.-C, added that as applied to the land the statement " professed to be nothing more than the loose opinion of the auctioneer or vendor as to the obvious quality of tlic land, upon which the vendee ought not to have placed, and cannot be considered to have placed, any reliance." MISREPKESENTATION. 25 " Part arable and part marsh land in a big'li state of cultiva- tion " is a misrepresentation if tlie marsli laud is in an im- poverished condition : Di/er v. Ilargravc, 10 Yes. 505. If tlie land were in fail- condition, such a description would probably be regarded as mere puff. It is to be noticed that in Dye)' v. Sar grave the sale took place at the breaking up of a frost, when it would be difficult for the pui'chaser to judge of the condition of the land. " Fertile and improvable " is mere puff, although the land in question has been abandoned as useless. But if a considerable part of the land is covered with water, or otherwise irreclaim- able, the statement amounts to a misdescription : Diinmock v. Ecdlett, 2 Ch. 21, 27. " The land in course of time may be covered with warp from the river Trent, and considerably improved at a moderate cost," was held not a misdescription, although there were no means of warping within three miles, and the expense would be 25/. an acre : Ibid. " Has lately undergone a thorough repair " is a statement of fact, and the house being ruinous and condemned by the dis- trict surveyor, the pm-chaser was allowed to rescind : Loijes v. Rutlierfonl, Sug. p. 331. " Substantial and convenient " and " having five bedrooms " was not considered to be a misdescription, although one of the external walls was only half a brick thick, and the walls had slight cracks in them, and two of the becbooms, though just large enough to contain a bed, were mere inner rooms or closets without fire-places : Johnson v. Smart, 2 Giff. 151, affirmed on appeal 21 July, 1860. But "substantial and well-built" was considered a mis- statement of fact where the buildings were seriously defective : Cox V. Middleton, 2 Drew. 209. " Brick-built " is a misdescription if the house is partly brick, and partly timber and lath and plaster : Poicell v. Do/ihl/le, Sug. 29. " Not damp " is a statement of fact, not opinion : Strangways V. Bishop, 29 L. T. 120. " Well supplied with water," in the description of a ware- 26 TAh'TJCULAKS OF .sALi:, ElV. house (-with small stoam engine) situate in a district wliere springs abound, and factories (though not -warehouses) are usually supplied Avitli Avater from wells on the premises, is a misdescription if tlie only Avator ,sup}ily is from ^vater^vorks on payment of a substantial water rate (20/. per annum) : Lrj/htnd V. Ill iiHj north, 2 De (r. F. & J. 248. '" liesidence fit for a respectable family" is mere puff. But the worJs " with a demesne tastefully laid out/' being explained by a map having delineated upon it clumps of trees and slu'ubs, and showing the house surrounded with ornamental timber, are a material misrepresentation if such trees, &c., do not exist : M(igc/uii.s V. Fal/oii, 2 Molloy, at p. 589, The words " eligible for the erection of genteel residences of a superior description " were not treated in Peacock v. Poison, 11 Beav, 355, as mere puff. In that case the vendor who had by the conditions undertaken to lav out roads shown on a map, was held not to be entitled to cut up the land differently in a manner likely to attract a loAver class of residents. On the sale of a life interest the vendor stated that the tenant for life was a " very healthy gentleman, aged forty-eight." This statement was afterwards modified to " a healthy gentle- man, aged forty-eight, whose hfe is insurable." The fact was, that the insm'ance companies though willing to insure the life would do so only on payment of a much higher rate than the highest rate of insm-ance of a healthy life of the same age. This was held to be misdescription and not mere puff : Break')/ V. ColUns, You. 317. On the sale of an annuity the vendor stated that the grantor was a man "in good circumstances, and of large property." The fact was that he was then, and had for some time been, in prison for debt. The statement was, in an action of deceit brought by the purchaser, held to be a meris puffing statement : Baices v. Tung, 1 Stark. N. P. C. 75 {ml qu. /). The description, " let to F. a most desirable tenant," has been held to be not a mere expression of opinion, but to contain an implied assertion that the vendor knows of no facts leading to the conclusion that F. is not a satisfactory tenant, and, F. being at the time to the knowledge of the vendor unable to pay his MISREPRESENTATION. 27 rent, the purchaser was relieved: Smith v. Land Corpomf ion, 28 Ch. Div. 7. On the sale of <£oOO Consols standing in the names of direc- tors, and held by them as an indemnity against costs in a pending Chancery suit, and subject thereto upon trust for the vendor, the vendor stated these facts, and added, " There is a considerable sum applicable for payment of costs, and such costs will be paid thereout, being in fact part of a residuary estate, shares in which ha^'e been the subject of sales to insurance companies. The estate of the testator was upwards of 100,000/., the residuary estate exceeded 20,000/. ; the fimcl of 500/. and dividends may therefore be looked upon as a sound and secure investment." The vendor had been informed by the directors' solicitor that they had paid 1,250/. costs which they hoped to get back from the estate, but that the whole of the 500/. might possibly be absorbed by the costs. It was held that under the cii'cumstances the vendor's statements were misleading : 3Iat- thias v. Yetls, 40 L. T. N. S. 497. On an agreement for a lease of a limestone quarry the lessor represented that the lime was " fit for the London market," the lessee ha^ing previously said that, unless the lime were fit for the London market he could not take the lease. It was proved that the words meant in the trade lime of the best equality. The statement was held to be a misdescription of a specific fact : Iliggius v. Sanicls, 2 J. & H, 4ii0. On the sale of an advowson, the vendor stated " a voidanee Matters of of this preferment is likely to occur soon," the fact being that ^^ ^ ^ ^ 7- the then incumbent was only thirty-two. This was considered not to be a definite misdescription, and the pm^chaser was not • relieved : Troicer v. Newcome, 3 Mer. 704. " The dii"ectors feel justified in stating that they confidently believe the profits of this company will be more than sufficient to pay 50 per cent." was held to be a mere expression of opinion: Bellairs v. Tucker, 13 Q. B. D. 502. The statement in the prospectus of a company " we do not hesitate to guarantee a minimum annual dividend of 33 per cent." was, however, held to be a fraudulent misrepresentation rendering the directors liable for damages : Gerhard v. Bates, 2 Ell. & B. 470. 28 I'AK'TICULAIJS or .SALK, KTC. ^^oXne. \^^ estate was described as of " nearly equal value with frecliold, being- held by a college lease for thirty-three years at a ground rent of 8/. 7*., and renewable every ten years upon payment of a small fine," the facts being that the renewal and the fine were both arbitrary, the amount of the fine last paid being 700/. It Avas held that the rejircsentations as to the fine being " small " and the tenm-e being " nearly equal to free- hold " were indefinite and calculated to put the purchaser upon inquiry. Under certain circumstances such representations might be a ground for rescission, as if the vendor knew that the purchaser entertained a false idea of the fine. But in this case the purchaser tried to find out the amount, and offered loO/. if the vendor w^ould pay the sm-plus ; the refusal of this offer ought to have put him on inquiry : Fenton v. Broivne, 14 Ves. 144. The statement that a ground rent is " amply secured " would seem to be only a puffiog statement; at any rate, if due notice of the real state of the facts is given, the purchaser will not be entitled to relief because of such words even if untrue. See Smifh v. Wath, 4 Drew. 338. The assertion by the vendor that the land is worth so much is a mere ex^^ression of opinion : Ilarccy v. Yoioig, Yelv. 20. But the statement that the estate " clears a not value of .£ per annimi" is a statement of fact : see p. 10. The statement that a colliery actually realised £ annual profits is, if untrue, a misrepresentation ; but the statement that a colliery producing such profits is worth £ , is a mere matter of opinion and judgment : Poicell v. Elliot, 10 Ch. 424. The statement that F. and C, two timber merchants, had valued the timber at 3,500/., the fact being that they had valued it at 2,500/. only, is a misrepresentation entitling the purchaser to relief : Buxton v. Lister, 3 Atk. 383, at p. 386. In another case, upon the treaty for the sale, the purchaser told the vendor he could not help thinking (as the fact was) that the property had been offered to him before at thousands less, and asked the vendor whether ho had ever put the property into the hands of an agent to sell at thousands less than he was then asking. The vendor falsely answered " No." It was held MISREPRESENTATION. 29 that the piircliaser was entitled to rescind on the ground of this misrepresentation : Roots v. SneJUng, 48 L. T. N. S. 216. Misrq)rcseiif(ifioii of Laic. Tlie vendor's misrepresentation of a matter of law (nnless, Matters of perhaps, it was made with the intention of deceiving the pur- chaser), will not entitle the purchaser to relief. The purchaser is assumed to know the law, and the misrepresentation of the vendor on that assumption has no effect on the pm^chaser's mind. It is not always easy to say of a given statement whether it is a statement of fact or a statement of law. If a fact is stated which involves a conclusion of law, the statement may he made so as to he a statement of the fact only, or it may he made as a statement of law followed hy a statement of the fact by way of deduction from the law so stated. "A misrepresentation of law is this: when you state the facts and state a conclusion of law, so as to distinguish between facts and law. The man who knows the facts is taken to know the law ; but when you state that as a fact which no doubt involves, as most facts do, a conclusion of law, that is still a statement of fact and not a statement of law. Suppose a man is asked by a tradesman whether he can give credit to a lady, and the answer is, ' You may, she is a single woman of large fortune.' It tmTis out that the man who gave that answer knew that the lady had gone through the ceremony of marriage with a man who was believed to be a married man, and that she had been advised that that marriage ceremony w\as null and void, though it had not been declared so by any Court, and it afterwards turned out they were all mistaken, that the first marriage of the man was void, so that the lady was married. He does not tell the tradesman all these facts, but states that she is single. That is a statement of fact. If he had told him the whole story, and all the facts, and said, ' Now, you see, the lady is single,' that would have been a misrepresentation of law. But the single fact he states, that the lady is unmarried, is a statement of fact, neither more nor less ; and it is not the less a statement of fact 30 rAirncuLAijs of sale, etc Fraudulent misrepre- seutation of law. that ill order to arri\t> at it you must lamw moro or loss of the law." Per Jessel, M.ll., in Eagleajichl v. JLirqid-s of Lo)idon- dcrnj, 4 Ch. Div. at p. 702. Where a tramway company's Act i-nahled them to em[)loy animal power, and, with llic consent of the Board of Trade, steam or other mechanical power, a statement by the directors who had not obtained the consent of the Board of Trade, that by their sjiecial Act the company had a right to use steam power instead of horses, was held to \)c a misrepresentation of fact : Peek V. Derri/, 37 Ch. Div. 541 ; see pp. 571 and 5S1. On the sale of an agreement for a lease to contain the " usual covenants," the vendor sent the purchaser a copy of the agree- ment for the lease, and, in answer to tlio purchaser's inquii'ies, said that the lessee would not have to do substantial repairs. As a covenant to do substantial repau's is a usual covenant, this was a misrepresentation. But it was held that it was a mis- representation of law, not of fact : KouhiU v. Hill, 6 Jiu". N. »S. 968. If a representation is made fraudulently, i\\Q purchaser may perhaps (though this is doubtful) be relieved, even if it io a mis- representation of law only. " Where there is a representation made as to a mere matter of law, it is in nineteen cases out of twenty made by a person who does not know the law better than the person to whom it is made, and at whose risk it is taken and acted upon. >Still I am not prepared to say, and I doubt whether a man who ^^■iKully misrepresented the law would be allowed in ecpiity to retain any benefit he got by such repre- sentation": per Bowen, L. J., in Went London Co)nmc)'cial Bank V. Kihon, i;j (i. B. Div. 3G0, at p. 362. Misirp)'csrnf((fio)i of lufoiflon. Intention. The effect of the expression by the vendor of his intention is doubtful. If the statement of intention is regarded as equivalent to an undertaking, then, if it be embodied in the agreement for sale, the piu'chaser could enforce it, or if the vendor were unable to carry out the intention the purchaser would be entitled to rescission or compensation ; and if it be not embodied in the MISREPRESENTATION. agreement, the vendor would not be entitled to specific per- formance without carrying it out. A representation made Iby the lessor in an agreement for a lease that the covenants contained in the draft restraining the use of the house for trade or business were usually contained in leases granted by the lessor of his other houses in that estate, amounts to a collateral contract with the lessee that the other houses should continue to be used as private dwelling-houses, and such contract can be enforced by the lessee, even though no undertaking or covenant on the part of the lessor is inserted in the lease : Martin v. Sjyicer, 31 Ch. Div. 1. But as a representation of intention appears to be often re- garded by the Court as not amounting to an undertaking or con- tract, it becomes material to consider the question whether the piu'chaser can obtain relief for a misrepresentation by the vendor of his intention. It is clear that a representation of intention, if true at the time it is made, is not falsified by an alteration of that inten- tion. Further, unless the representation virtually amounts to a promise or undertaking, the vendor is entitled to alter his inten- tion, notwithstanding the representation : Jordan v. Money, 5 H. L. Ca. 185. " The doctrine of estoppel by representation is applicable only to representations as to some state of facts alleged to be at the time actually in existence, and not to promises de future, which, if binding at all, must be binding as contracts": per Lord Selborne in Maddison v. Alderson, 8 App. Ca. 167, at p. 173. " A representation that something will be done in the futm-e cannot either be true or false at the moment it is made, and although you may call it a representa- tion, if it is anything it is a contract or promise " : per Mellish, L. J., in Beattie v. Lord Eliury, 7 Ch. 777. If, however, a person states as his intention that which never was his intention, this is a misrepresentation of a fact, and from the natm-e of the case it is a fraudulent misrepresentation. Where the directors of a company issued a prospectus inviting subscription for additional capital, to be employed in improving the buildings of the company and pm-chasing horses and vans, their real object being to obtain money to meet theii' i)rcssing 31 32 PARTICULARS OF SALE, ETC. pccuniarv liabilitios, it was licld that this misrejoresentation of intention was a misrepresentation of fact also, and the directors were liaLle to an action of deceit : Edgingfon v. Fifzijiaiiricr, 29 Cli. Div. 4;j9. "A mere suggestion of possible pm'poses to whiili a jiovtion of the money miglit be applied would not have formed a basis for an action of deceit. There must be a mis- statement of an existing fact ; but tlie state of a man's mind is as much a fact as tlio state of his digestion. It is true that it is very difficult to prove what the state of a man's mind at a particular time is, but if it can be ascertained it is as much a fact as anything else. A misre2)resentation of the state of a man's mind is therefore a misstatement of fact " : per Bowen, L. J., iliid., at p. 483. It might perhaps be argued that as the intention, even if it existed, might be altered at any moment, the misstatement of the intention is an immaterial misrepresentation, one not c/aiis locum coitfracfiii — in other words, one uj^on which the party to whom the statement is made does not rely, or on which, if he relies at all, he relies at his own peril. See Chap. YI., p. 49. " He knows or ought to know that he takes his chance of the promisor changing his mind, and tlicrcfore he is in no worse position if the statement is false when it is made, /. e., if that intention is not really entertained than if it is true when it is made, /. e., if the intention exists and the person making tlie statement intends to revoke it if he pleases " : per Steplien, J., in Akkrson v. Moddison, 5 Ex. D. 293, at p. 303. But even if this reasoning is correct, the statement of inten- tion in Edfj'uKjton v. Fifzmaurice, 29 Ch. Div. 459, might be regarded as an implied misrepresentation of a fact. The state- ment that the directors intended to spend the money in improving the biiildings implied that the directors knew of nothing to prevent thorn from so applying the money or to make such an ap}»lication of tlie money improbable. As they were hard pressed by the creditors of the com^^any, this state- ment was untrue : cf. Bowen, L. J.'s judgment in Smith v. Land Corporation, 28 Ch. Div. 7, quoted above, p. 24. In one case the vendor, previously to the sale, handed the auc- tioneer a paper in his own writing, which stated that it was in MISKEPKESENTATION. 33 contemplation to widen a lano leading to the property by purchasing the lionses at the entrance and to form a new street, as represented by the dotted line on the jilan annexed to the particidars, and that, if the same could not be otherwise done, the vendor would apply to Parliament for an Act to enable him so to do. This paper, by the vendor's directions, was read to the persons assembled at the sale. The vendor was not the owner of the land over which the new street was to be made. The Court held that the vendor was not entitled to specific per- formance without carrying his undertaking into effect : Be((uino)it V. Diihcs, Jac. 422. It would appear from p. 42-5 of the report that the Court thought the statement of intention was false, as the vendor did not design to carry it into effect. But the pur- chaser would have been entitled to relief also on the ground of the misdescription contained in the plan, and on the ground that the statement was, in fact, an undertaking, and that a parol contract had been entered into which the defendant could insist on having read into the agreement. See p. 163. Where, pending negotiations for a building underlease, the sub-lessor, w]io was lessee of adjacent land, made a representa- tion that he could not obstruct the sea-view, being bound by covenants himself, and afterwards surrendered his lease and obtained a new one without the covenants, the sub-lessee, who had taken the underlease and erected buildings on the faith of the representation, was held entitled to an injunction restraining the sub-lessor fi'om so building as to obstruct the sea-view : Pigrjott V. Sfratton, John. 341 ; affirmed, 1 De C. F. & J. 33. The principle involved in this decision is thus stated by Lindley, L. J., in Martin v. Spicer, 34 Ch. I)iv. 1, at p. 12 : " If a man makes a representation that property is subject to covenants affecting it permanently, and he does so in order to induce a person to buy part of such property, and the person buys on the faith of such representation, the representation amounts to a contract by the vendor that he will not do anything to prevent the property from continuing what he has represented it to be." The ratio decidendi of Piggott v. Straff on seems, however, to have been that the representation operated by way of estoppel rather than as a contract. See the words of Lord Hatherley, Jolm. W. J) 34 PARTICULAKS OF SALE, ETC. p. 359 — "A man who lias induced anotlier to enter into a con- tract ■with liini, hy representing an actual state of tilings as a security for the enjo^Tuent of an interest which he has himself created, for valuahle consideration, is not at liberty hy his oa\ti act to derogate from that interest hy determining the state of thinffs which he has so held forth as the consideration for entering into the contract." There the representation was one of fact ; what the vendor said amounted virtually to a representation tliat llie existing state of things must continue, and that the sub-lessor could not get rid of his liability, rather than a representation that he did not intend to get rid of his liability by surrendering the lease or otherwise. ( 35 ) CHAPTER III. OMISSIONS. It is often said that the vendor is not under an obligation to Caceat emptor disclose defects in the property which he is selling, even if he knows that the purchaser is ignorant of the true state of the facts. The maxims used are caveat empto)- and aliud est celare, aliud tacere. The " mere silence " of the vendor, or his " passive acquiescence in the purchaser's self-deception " (Cockburn, C. J., in Smith v. Hughes, L. R. 6 Q. B. 597), is opposed to an " in- dustrious concealment" [SJiirleij y. Strattoii, 1 Bro. Ch. C. 440) or " aggressive deceit " [Keates v. Earl of Cadogan, 10 C. B. 591) on the vendor's part ; and while the latter is considered as entitling the purchaser to relief, the former is regarded as per- fectly justifiable. The law is, however, laid down in too general a way if a sale cf real property, and not of chattels, is under consideration. In the first place, the maxim caveat emptor does not apply to latent defects, as to which see below, p. 37. And if the vendor wishes to preclude the purchaser from objecting to a defect in his title he must mention the defect in the particulars or con- ditions of sale, unless he is content to trust to the chance of the purchaser's investigation of the title being so careless that the defects are not discovered. It seems, on the whole, more correct to lay it down as the general rule that the mere silence of the vendor as to defects in the property, or in the title to the property, is sufficient to entitle the purchaser to rescind or obtain compensation, and then to set out the rules as to patent defects, and such defects in title as need not be mentioned (or which, properly speaking, are not to be regarded as defects at all) as exceptions to the general rule. 1)2 36 1'A1M1CL'LAK« ur .SALE, ETC. Examples. The following arc instaucos of defects in the property, or the title to the property, the omission of the vendor to mention ■which has been considered to entitle the purchaser to relief : — Mortgages -which the vendor did not intend to discharge : Torrmicc v. Bolton, 8 Ch. 118. Ground rent to which the property was subject : Jones v. liinimcr, 14 Ch. Div. 588. Kentcharges or quit-rents : Eschdlc v. Sfep/icnson, 1 Sim. & Stu. 122. Eestrictive covenants : P/i/7/ip.s v. CahlcIcugJi, L. E. 4 Q. B. 159. The liability to repair the chancel of the parish church : Fortchlow V. Shirley, cited in Binks v. Lord Rokehy, 2 Sw. 223. Leases to which the property is subject : Hughes v. Jones, 3 De G. F. & J. 307. The absence of title to an underground cellar beneath the property sold : Whittington v. Corder, 16 Jur. 1034. The fact that there is no proper access to the property, e.g., on the sale of arable land, the absence of a right of way for carts and carriages : Denne v. Light, 8 De G. M. & G. 774 ; Curling v. Amtin, 2 Dr. & Sm. 129. On a treaty for a lease of a mine, the omission to state that a material portion of the mine w^as imder land to which the lessor had no title : Mosti/n v. West Mostyn Colliery Comjxmy, 1 C. P. D. 145. On the sale of an annuity, the omission to state that it was redeemable : Coverley v. Bnrrell, 5 B. & Aid. 257. On the treaty for the sale of the residue of a lease of which 12 J years were unexpired, the omission to mention the lessor's right of option to determine the lease at the end of five years : Weston v. Samge, 10 Ch. D. 736. On the sale of a lease, the omission to state that owing to the breach of covenants by the lessee the lease was then voidable : PenniaU\. Harhorne, 11 Q. B. 368 ; the omission to state that an agreement for a lease was voidable : Brewer v. Broadtcood, 22 Ch. D. 105. On the sale of a derivative lease, the omission to state that other property, part of the laud demised by the original lease, had been sub-demised by a lease not containing OMISSIONS. 37 restrictive covenants in accordance with those contained in the original lease : JVaring v. Hoggart, Hj. & M, 39. There are many matters which the vendor is not hound to mention. (1.) The vendor need not mention patent defects. Patent de- A patent defect is a defect in the physical condition of the property which a purchaser would be likely to discover if he inspected the property with ordinary care. A latent defect is one which a purchaser, inspecting the property with ordinary care, would not be likely to discover. In Dart, p. 101, a patent defect is defined as " such as may be discovered by ordinary vigilance on the part of a purchaser," and a latent defect as " such as the greatest attention would not enable him to discover." This definition leaves a third class of defects which are neither patent nor latent, riz. those not discoverable by ordinary vigilance. It seems more correct to regard as latent all defects which are not patent. In Lucas v. James, 7 Ha. 410, at p. 418, a latent defect is defined as " one which a provident purchaser could not discover." The existence of a way round, and a footjiath across, a field Footpath. which was sold as a " meadow," was held to be a patent defect, and one which did not entitle the purchaser to resist specific per- formance : Bowles v. Round, or Oldfield v. Round, 5 Yes. 508. Lord Manners, in Ellard v. Lord Llandaff, 1 Cox, at p. 249, referring to Bou-Jes v. Round, says, " I believe the Bar was not very well satisfied with the decision. . . . The purchaser was undoubtedly extremely negligent not to look at the estate before he piu'chased it. Had he used ordinary caution he would have discovered the easement." Jessel, M. R., in Cato v. Thompson, 9 Q. B. Div. 616, at p. 619, referring to Boivles v. Round, though not mentioning it by name, treats it as a case where the purchaser knew of the defect. This, however, is incorrect. The existence of a waterway through the property is not "Waterway, generally a patent defect, and a purchaser was not presumed to know that there was an easement of waterway over the property, or to be affected with notice thereof, from the fact that he was well acquainted with the property, and constantly passed some wells which were supplied by an underground watercourse 38 I'AirncuLAKS of sali;, etc. running through the property : Shachleton v, Sxfc/ijf'r, 1 De G. & Sm. GOO. Other ex- A houso was Sold, over part of which a room about 3 feet by amp es. ^^^ belonging to another house, projected. The plan, being merely a ground plan, did not notice this projection. The pur- chaser had no knowledge of the internal state of the building, and there was no evidence that the defect could have been detected externally by the eye. It was held that this was a latent defect, and the purchaser was relieved : Pope v. Garland, 4 Y. & C. 394. In the case of a house bought or taken for a family residence, the existence of a nuisance arising from the immoral character of certain houses in the immediate neighbourhood is a latent defect, and it would seem that if the vendor knew of it and omitted to inform the purcliaser, the latter might rescind, but not if the vendor himself were ignorant of the fact : per Shad- well, V.-C, in Lucas v. James, 7 Ha. 410, at p. 418 {sed qu.). On an agreement for a lease of a coal mine, the lessor did not inform the lessee that lie had worked the mine twenty years ago, and abandoned it as unprofitable. The lessee examined the mine himself before the contract, and saw the abandoned work- ings. The Court granted specific performance : Ilayicood v. Cope, 25 Beav. 140. If the w^hole of the coal had been gotten this might, perhaps, entitle the purchaser or lessee to relief : see remarks of Page- Wood, V.-C, in RidfjH-aij v. Snojd, Kay, G27, at p. 635. If the vendor or lessor knew that all the coal had been gotten by former workings, it would seem to be fraudulent for him to sell or lease the mine without mentioning the facts. On the sale of a lease containing a covenant to deliver up the premises in good repair at the end of the term, if any of the buildings have been removed, this should be mentioned : Granger V. Wornis, 4 Campb. 83. The non-existence of the buildings is not a patent defect, because the purchaser does not necessarily know that there ever were such buildings. And though in that case the lease which contained a description of the buildings (including the summer-house, which was afterwards pulled down) was produced and read aloud at the sale, the purchaser OMISSIONS. 39 might either not heave heard it, or not have paid attention to the point. A defect which is patent to a professional man {e.g., a sur- Professional veyor), but not to an ordinary man, is not a patent defect unless purchaser. the purchaser has himself the requisite professional knowledge, or has employed a professional man : Tildesley v. Clarkson, 30 Beav. 419, at p. 430. A defect is patent if it is sufficiently visible to " arouse the Defect par- ^ tially visible, vigilance of any intending" purchaser, even though the full extent of the defect is not visible. Thus, where there were cracks in a wall, and the wall was eighteen inches out of the perpen- dicular, this was considered sufficient to put an intending lessee on his guard, although the full extent of the repairs necessary to be done could not be discovered without an examination of the foundations : Cook v. Waug/i, 2 Giff. 201, at p. 206. (2.) The vendor need not mention defects to which land Defects com- mon to all usually is subject. land, Thus, the existence of tithe commutation rent-charge, or tithes, need not be mentioned, because, in the absence of informa- tion that the land was tithe free, an ordinary purchaser would infer that the land was subject to tithes : Sug. 322. (3.) Nor need he mention defects which are necessarily or or to land of . , . . . that tenure, usually inherent in land of the same tenure as that which is being sold. These are not, strictly speaking, " defects." Thus, on the sale of copyholds, it is not necessary to mention that the lord's consent is requisite to enable the tenant to work minerals, because this is the same in all copyholds : per Romilly, M. E., in Haijfonl v. Criddle, 22 Beav. 477, at p. 480. On the sale of an underlease, the vendor need not mention the liability to forfeiture in case of a future breach of the covenants by the original lessee, because this liability is incidental to every underlease : Ilayfonl v. Criddle, 22 Beav. 480. If the purchaser is informed that the property is subject to restrictive covenants he is not entitled to refuse to complete on the ground that the vendor neglected to inform him that there was a power of re-entry on breach of the covenants : per North, J., in Dunn v. Flood, 25 Ch. D. at p. 634. On the sale of a remainder or reversion expectant on the 40 PARTICULARS OF SALE, ETC. Act of Par- liament. Customs. death of a tenant lor life, the vendor need not mention the fact that succession duty will be payable by the purchaser: Bee Coojyer v. Trewhy, 28 Beav. 194. (4.) The vendor need not mention a local and public Act of Parliament affecting the property, although such Act imposes a liability on the property. Thus, on a sale of land subject to certain drainage taxes im- posed by a public Act, the Court granted the vendor specific performance without compensation, although he had omitted to mention these taxes : Barrand v. Arc/ier, 2 Sim. 433 ; affirmed 2 Russ. & M. 751. In that case the land was described as " fen-land " and the purchaser was an attorney living in the neighbourhood ; on the other hand, the vendor mentioned other drainage taxes which probably threw the purchaser off his guard. "Where the rental (/. r. particulars) stated that the land was subject to a terminal annual charge in respect of the Lough Corrib Arterial Drainage, but omitted to state the liability to a charge for maintenance under the public Act, under the pro- visions of which the Lough Corrib Drainage had been efPected, the purchaser was not allowed any compensation : Be Bijan^s Estate, Jr. R. 3 Eq. 255. But the omission to mention a local and public Act of Par- liament giving a public body a right of preemption was held to entitle the purchaser to rescind : Ballard v. Way, 5 L. J. (N. S.) Exch. 207, where, however, Parke, B., described the Act as a private Act. The decision seems to be opposed to those above mentioned, but may perhaps be supported on the special ground that the Act did not sufficiently point out what property was contained in it. (5.) The vendor need not mention any usual and well-known customs as to the rights of tenants : see PJiillip^ v. Miller, L. R. 10 C. P. 420 ; or as to mining rights : Dart, p. 132. But the omission to mention any special and unusual right of tenants different from the known custom of the country -svill entitle the purchaser to relief; e. g., the right of the tenants to be allowed market value for hay, &c., when the custom in the country is to allow "fodder value" only: Fhillips v. Miller, L. R. 10 C. P. 420, reversing 9 C. P. 19R. OMISSIONS. 41 (6.) Mere claims put forward by third persons need not be Claims, mentioned, unless the vendor is asked whether he knows of any claims : Brownlie v. Campbell, 5 App. Ca, 925, at p. 944. On the sale of a leasehold house, the omission to mention that the lessor had given the vendor a peremptory notice to repair was held to entitle the purchaser to relief, although the pur- chaser knew that the house was dilapidated, and probably knew or had notice of the liability to repair : Stevens v. Adamson, 2 Starkie, 422. In that case the purchaser was ejected by the lessor for non-compliance with the notice to repair, and would, probably, have been able to avoid ejectment by repairing if he had known of the notice. (7.) Other matters. Other matters. The vendor is not bound to disclose to the purchaser the result of a recent valuation of the property : Abbott v. S/corder, 4 De G-. & S. 448. Nor the fact that the vendor has previously attempted to sell the property : Warde v, Dixon, 7 W. E. 148. But if the vendor, on being asked as to this, wrongfully denies it, the purchaser will be entitled to relief: Roots v. SnelluHj, 48 L. T. N. S. 216. Nor the fact that part of the rent stated in the particulars has been sometimes remitted in consequence of the tenant's complaint that the rent was excessive : Abbott v. S/corder, 4 De a. & S. 448. In another case the vendor stated that the farm was let to " a tenant from year to year at a moderate and reduced rental," specifying the amount. Before the sale, the tenant had written a letter to the vendor announcing his intention of giving up the farm, but no proper notice to quit had been given. It was held that the vendor was not bound to mention this letter, and that there was no misdescription as to the rental of the pro- perty : Davenport v. Charsleij, 54 L. T. N. S. 372. On the grant of a personal annuity, the grantor is not bound to mention the fact that he is under large pecuniary liabilities : Adamson v. Evitt, 2 Russ. & M. QQ. The purchaser in that case was an auctioneer, and the terms of the purchase raised the presumption, that the grantor was in embarrassed circumstances. "12 I'ARTICULAUS OF SALE, ETC. On tlio sale of an advowson, no statement by tlic vendor or inquiry by the piircliaser having been made as to the income of tlio living, the purchaser claimed compensation for an undis- closed charge in favour of Queen Anne's Bounty. The C-'ourt refused to grant compensation, chiefly on the ground that the charge did not affect the value of the advowson, and that, even if the next presentation would be less valuable, the subsequent presentations would be more valuable : Edirards- Wood v. M(ir- joribcn/Ics^ 7 H. L. Ca. 80G. This reasoning is not, however, conclusive. The subsequent presentations Avould be more valuable not because of the charge, but because the house was in good repair. The pm-chaser probably knew the condition of the house ; he had seen it. On the sale of a house standing on less than one-eighth of an acre, and in a residential neighbourhood, the omission to state a restrictive covenant against using the land as gasworks is an immaterial omission : semble, IIi(jijin^i ^' IlitcJnnan^ Contract, 21 Ch. D. 95. If there are no minerals, the omission to mention that the vendor is not entitled to the minerals is immaterial : Lyddal v. Weston, 2 Atk. 19. If there are no minerals, the fact that the land is subject to rights of mining vested in other persons is also, it seems, immaterial : see Martin v. Cotter, '3 J. & L. 496, at p. 509. ( 43 ) CHAPTER IV. INDUSTRIOUS CONCEALMENT OF AND MISEEPEESENTATION CONCERNING A PATENT DEFECT. Ie the vendor intentionallj" diverts the purchaser's attention Concealment from or industriously conceals a patent defect, the purchaser will be relieved: SJiirley v. Stratton, 1 Bro. Ch. C. 440. The following are instances of industrious concealment : — Examples. Papering over a defect in a wall : per Gribbs, J., in Pickering V. Doicson, 4 Taunt, at p. 785. Eemoving a ship from the ways on which she lay dry, and keeping her afloat so as to conceal the bottom, which was worm- eaten, and the keel, which was broken : Schneider v. Heathy 3 Campb. 506. There is no " industrious concealment " in a mere promise by the vendor to have the foundations of a cracked wall examined, if the purchaser takes possession without asking the vendor if the examination has been actually made : Cook v. Waugh, 2 Giff. 201 (a ease of agreement to grant a lease). The purchaser will be entitled to relief even for a patent defect Misrepre- if the vendor have made a positive misrepresentation on the point. ^^'^^''■^^°^- " The maxim caveat emptor . . . does not apply where there is a positive representation essentially material to the subject in question, and which at the same time is false in fact. I must consider any fundamental mistake in the particulars of an estate as furnishing a case in which the purchaser will be entitled to have the mistake set right :" per Lord Thurlow, in Loicndes v. Lane, 2 Cox, 363. " If a man makes a description calculated to mislead, I do not think it is well for him to say, ' If you had been very careful, you would have found out the blunder.' How was it that he did not himself find it out ? " per James, L. J., in Ee Arnold, 14 Ch. Div. 270, at p. 281. 44 TARTICITLARS OF SAT.K, KVC. Examples. A representation hj the vendor that tlic house is substantial and well-built, relieves the purchaser from the necessity of inspecting the house for himself, and though the defect is patent the purchaser will be entitled to relief : Cox v. MiddMoii, 2 Drew. 209. Wliere property measuring thirty-three feet in deptli was described as being forty-six feet in depth, the purchaser was relieved, although, being in occupation of the premises, he could have easily discovered the real measurement : King v. Wilson, G Beav. 124. Where the purchaser, seeing stains on the walls and other signs of damp, was satisfied with the vendor's explanation that it was caused by the overflow from a gutter at the top of the house, and that the house was not damp, the purchaser was held entitled to relief on it being proved that the house was permanently damp: Stranrju-ay-^ v. Bishop, 29 L. T. 120. A house was subject to dry-rot. The vendor misrepresented the state of repairs, and the purchaser relied on the vendor's representation, telling the vendor that he had not had the premises surveyed, because he relied on him. The purchaser was relieved : Grant v. Mnnf, Gr. Coop. 173. The dry-rot in that case was not perfectly visible, and so probably would have been regarded as a latent defect, and the purchaser would have been relieved even in the absence of a positive misrepresentation. A fault in a mine was concealed, being blocked up with rub- bish. The purchaser (or his agent), before inspecting the mine, had asked, " Is there any fault in the mine ? " to which the vendor had answered, " God knows ; if you go down you will see all that I know." On seeing the rubbish which concealed the fault the purchaser asked, " What is the meaning of this riibbish ; why do you not get the coal found in that direction ? " and was answered, " We do not wish to work in that direction ; we have got quite coal enough." It appears that the purchaser would have been entitled to relief had he not subsequently waived his right by his conduct : Small v. Afficood, You. 407, at p. 490 ; 6 CI. & F. 232, see p. 357. Where a representation is made by the vendor as to rejiairs, or the state of cultivation, the purchaser is not bound to make INDUSTRIOUS CONCEALMENT, ETC. 45 such a minute inspection of the property as if there had been no representation : Dijer v. liar grave, 10 Yes. 505, at p. 509. Qa. does it not absolve tlie purchaser from the necessity of making aiv/ inspection of the property as to repairs or state of cultiva- tion ? See above, p. 44, Co.r v. Mlddlrton, 2 Drew. 209. Where the plan furnished by the vendor at the sale did not disclose a footway over the property, this was held to be a mis- representation entitling the purchaser to relief, notwithstanding that a footway is a patent defect : D//Iics v. Blake, 4 Bing. N. C. 463. (The vendor there also described the land as " building land.") The misrepresentation may be implied from the nature of the Implied mis- property as described by the vendor, or from the nature of the tion. agreement itself. If the vendor describes the property as " building land," this implies a representation that the property is fit for the purpose of building on, and if there is an adverse right of way across the property, or anything else which makes the land useless or less valuable for building purposes, the purchaser will be entitled to rescind (or obtain compensation) if he have relied on the repre- sentation, notwithstanding that the defect is patent : Dykes v. Blake, 4 Bing. N. C. 463. In ShaekJeton v. Safcliffe, 1 De G. & Sm. 609, the defect was a right of water-way which, even if the proj)erty had not been described as " building land," would have been sufficient to entitle the purchaser to relief, as being a latent defect. A misrepresentation by the vendor does not entitle the pur- Purchaser not chaser to relief if he was not deceived. See Ch. VI., p. 49. Where a farm, consisting of scattered fields, was described as "lying within a ring-fence," and the purchaser saw the farm before the contract, the Court concluded that the purchaser knew the representation to be untrue. D//er v. Ilargrave, 10 Ves. 505. Grant, M. R., seems in that case to have thought, that as the variance was an " object of sense," the purchaser must have dis- covered it (see p. 508). But unless the Court came to the conclusion, as a matter of fact, that the purchaser did see that the farm was not in a ring-fence, it would seem wrong to hold that because he ought to have seen it he was precluded from objecting. 46 PAKTICULAK.S OF SALF.j ETC. CHAPTP^R V. AMBIGUITY. Definition. Ax ambiguity is a statement whicli is literally true, but which is susceptible of another meaning, whicli other meaning is one which might easily occur to a person of ordinary sense exer- cising ordinary care. If the true meaning is one which would not be likely to occur to a person of ordinary sense as a possible meaning, the state- ment is more than a mere ambiguity — it is a misleading state- ment or misrepresentation (see p. 19). If the other or untrue meaning is one not likely to occur to a person of ordinary sense exercising ordinary care, then the fact that the statement is capable of being misconstrued by an extra- ordinarily stupid or careless person does not make it an ambi- guity. The phrases used to express this are necessarily vague : "reasonably capable of misconstruction" in Scafoii v. Mapp (2 Coll. 55G, Knight-Bruce, V.-C.) ; " a matter on which a person might hoiid fide make a mistake " {Siaiialand v. Dcarsley, 29 Beav. 430) ; "in the apprehension of ordinary persons " {Taylor V. Martindale, 1 Y. & C. C. C, at p. G63) ; and conversely, " if no man with his senses about him could have misapprehended " {Sicaisirnid v. LeamJey, 29 Beav. 430, at p. 433, Eomilly, M. R., cited with approval by Baggallay, L. J., in TdrnpHii v. Jdmes, 15 Ch. Uiv. 215). Purchaser If the purchaser complains of an ambiguity, he must tell the heunderstood Court in what sense he understood it : see Sntith v. Chadiviclc, 9 **• App. Ca. 187, which was the case of a misrepresentation in the prospectus of a company. There the misrepresentation com- plained of was, " the present value in the turnover or output of the entire works is over one million sterling per annum." The plaintiff, on being asked what meaning he attached to these words, replied : " I understand the meaning of such misrepre- AMBIGUITY. 47 sentations to be that which the words composing them obviously convey, and I am unable to express in any other words what I understood to be the meaning thereof." His action was dismissed. So, too, in Vi(jiio/ks v. Boireii, 12 Ir. Eq. 194, where the pur- chaser in his affidavit merely submitted to the Court that the true construction of the particulars was so and so, but did not say positively that he was misled : see p. 198 of the report. The purchaser must swear that he was misled, and he may be contradicted : Sicaisland v. Deavsley, 29 Beav. 430. If the pur- chaser is proved to have known the true state of the facts, he will not be entitled to relief : see p. 54. This proof may be established by parol evidence. So also, if the purchaser was deceived, but the mistake did not influence his choice, he cannot complain : see p. 62. A general term is not necessarily an ambiguity. " An ex- General term, pression is only ambiguous when from its very terms it may mean either one thing or another ; and it is an improper use of the word to say that an expression is ambiguous when a nomcn general c is used, and the doubt is which of several things is included in it. If a person agrees to sell ' a horse,' there is no ambiguity in the expression, although it is uncertain whether the horse is of one sex or the other. In like manner, the term * equitable interest ' cannot be said to be ambiguous because it may mean one or another description of equitable interest. Where a nomen generals is used, if the purchaser wishes to know what description of matter is meant to be included, he ought to inquire." Per Pollock, C. B., in Ashworth v. Mouiisei/, 9 Exch. 175, at p. 186. The following cases exemplify what are ambiguous descrip- tions and what not : — The description of an underlease as a " lease " is an ambiguity " Lease." amounting to a misdescription, and entitling the purchaser to relief, unless he knew or had notice of the fact that he was only to get an underlease : Madeley v. Booth, 2 De Gr. & S. 718. A dictum of Jessel, M. R., in Camherwell, ^c. Society v. Holloway, 13 Ch. D. at p. 7 60, dissenting from Madcley v. Booth, has been disapproved by the Coui't of Appeal in Beyfus 3f Masters, 39 Ch. Div. 110. 46 TAiniCULAKS (il' t facts. Examples. lu a contract to sell a house, not stating the nature of the vendor's interest, if the jmrchaser knows that the vendor is entitled only to a lease and not to the fee, he cannot resist specific performance on the ground that the vendor did not state this in the contract : Couien v. Wattx, 17 Jur. 172. Where an underlease is described as a lease, the purchaser is not entitled to relief on account of the ambiguity if he knew beforehand that the vendor had only an underlease : Jlendcr-soii V. Hudson, lo W. 11. 860. Where the vendor agreed to sell a "lease," having only a contract for an underlease, the piu'chaser, who has seen the contract for the underlease under such circumstances that lie must have known he Avas only to have an underlease, will be bound to accept an assignment of an underlease made in ac- cordance with the terms of such contract : Flood v. Prit chard, 40 L. T. N. S. 873. Where the misrepresentation com})lained of was that the statement as to the produce of the woods was misleading, because such produce had only been made by cutting in an unhusband- manlike manner, the purchaser was held unable 1o coiiiplain of the misrepresentation, because he had sent his own surveyors down, and they found out that the woods had been cut improperly, and therefore the" purchaser was not misled by the statement as to the })roduce of the woods :. LoicitdcH v. Lane, 2 Cox, 363. On the sale of an estate comprising a house, cultivated land, and ICO acres of heath, worth about 11. an acre, the latter was described as " about 200 acres, more or less, of mountain land" ; but as the vendor took tlie purchaser over the land before the sal^, and pointed out to him correctly what he was to get, it was MISDESCEirXION DANS LOCUM CONTKACTUI. 55 held tliat the purchaser could not complain of the misdescription : CorlcHfi V. Sparkltng. I. R. 9 Eq. 59-5. But in the case of a defect in the title, if the contract con- Defect in tains an express agreement to make a good title, this nullifies the effect of the purchaser's knowledge that the vendor's title is defective : see below, p. 210. The purchaser's knowledge of the facts may be inferred from Knowledge the circumstances, even though he denies knowledge. The fact that the piu'chaser had attended a previous abortive Tenure, sale by auction, where the particulars described the property as leasehold, was considered as proving that the purchaser knew that the vendor, who contracted to sell " my house," not men- tioning the tenure, had a lease only, and not the fee {Coidcy v. Watts, 17 Jm\ 172) ; though it is not clear that the pm^chaser disputed that he had gained such knowdedge at the auction sale. Knowledge of an incumbrance affecting the property, but not Incum- mentioned in the particidars, was not inferred from the fact that at the sale by auction, at wdiich the purchaser bought the pro- perty, the conditions of sale mentioning the incumbrance were read aloud, the purchaser swearing that he was seventy-three years old, very deaf, and unable to hear the conditions, and that he did not incpiire about them, thinking they were only formal : Toirance v. Bolton, 8 Ch. App. 118. Knowledge that the land is subject to water- rights will not Waterway, be presumed from the fact that the pmx'haser lived in the neighbom4iood, was acc[uainted with the property, and con- stantly passed some wells supplied from the land contracted to be sold : S/iackteton v. Siitctife, 1 De G. & S. 609. Knowledge of the acreage of the property will not be pre- Acreage, sumed from the fact that the pm'chaser knew the property : Ibid. Knowledge of the dimensions of a house will not be presumed Dimensions. from the fact that the purchaser was the tenant and occupier of the house : Ki)ig v. Wilson, 6 Beav. 124. Where property was described as lying "within a ring-fence," "King- but was in fact dispersed, the Com't inferred that the purchaser knew the true facts, because he had lived in the neighbourhood all his life. " This variance is the object of sense. He must have known whether the farm did lie in a ring-fence or not. 66 PAHTICULAKS OF SALE, ETC. Tliirty or fortv acres more than lie aviis purchasing" (loO acres) *' would liavo heen noticed hy him .... IL^ had repeated opportunities of going over the farm": Dyer v. Ilarijmvc, 10 Ves. 505 ; .srr/ qu. " Insiirable Where the particulars stated that a person was " a healthy gentleman, aged forty-eight, whose life is insurahle," the fact heing that the insurance companies required a higher rate than the highest rate of insurance of a healthy life of the same age, the purchaser was not presumed to know the true state of the ease, merely because there was a statement in the particulars that the vendor guaranteed the insiu'unce at five guineas per cent., which, to the knowledge of the purchaser, was more than the usual premiimi : Breaky v. CoIIiiix, You. 317. Purchaser not (2) The vendor may show that the purchaser did not rely on statement. ^he vendor's statements, but trusted to his own knowledge or supposed knowledge of the property. " If the j^arty to ■\\-hom 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" : per Lord Langdale, M. R., in ClapJiam v. SJtiUito, 7 Beav. 146. In one case, although there was a clear misrepresentation by the vendor, the Court came to the conclusion that the pui'chaser relied on liis own knowledge and not on the misrej)resentation. Property let for 100/., the landlord paying the rates and taxes, which amounted to 16/. 9.s., was put uj) for sale as lot at 100/. " clear of taxes aiid rates." The purchaser, who was an auctioneer, asked no questions about the rates and taxes, assuming that the tenant paid them as that was the practice in London where the property was situate. In an action of deceit against the vendor, the Court held that the . purchaser did not rely on the misrepresentation " but grounded himself upon a supposed knowledge of the usual course of practice in such transactions " : Wihoii v. Fuller, 3 Q. B. 68, see p. 78 (the head note does not accurately represent the real ground of decision). Tins case is, however, open to grave doubt, as the direct mis- statement as to the taxes could not but have influenced the purchaser. MISDESCRIPTION DANS LOCUM CONTRACTUI. 57 It is sometimes said, that if the purchaser has resort to other Resort to means of information, he ought not to rely, and must he taken of knowledge, not to have relied, on the vendor's statements, and that if he inquired but inquired carelessly, he must bear the consequences of his own negligence. Thus, Stuart, V.-C, says, in Clarke v. Bfackintosh, 4 Giff. 134, at p. 155, " There is no doubt that if the purchasers could show that they contracted to buy in absolute and express reliance on the truth of representations which turn out to be false, and without resort to other means of information by which tlie truth might be sufficiently disclosed, they ought not to be compelled to perform the contract. But a pui'chaser is bound to exercise a reasonable degree of caution. Therefore, if there be anything in the natm^e or circumstances of the representa- tions made by the vendors calculated to excite suspicion or to require explanation or investigation, the purchaser is bound to be on his guard, and must bear the consequences of any negli- gence on his own part ; much more if the purchaser, not satisfied with the representations, proceeds to investigate and inquire for himself, and has the fair opportunity of testing the accm-acy of what the seller has represented, he must abide by the con- sequences and the seller in general is relieved from respon- sibility" — (and at p. 157) "When the purchasers took upon themselves to investigate, and had a full and fair opportunity to test the accuracy of what had been represented by the seller, it is no excuse to say that the investigation made by themselves was loosely or carelessly made or that their solicitor acted in a cursory manner," So, too, the judgments in Aiticood v. Small, 6 CI. & F. 232, the headnote of which ease contains the following summary : " If a purchaser choosing to judge for himself, does not avail him- self of the knowledge or means of knowledge open to him or to his agents, he cannot be heard to say he was deceived by the vendor's representations, the rule being careat emptor, and the knowledge of his agents being as binding on him as his own knowledge." In Clapham v. SJiilUto, 7 Beav. 146, Lord Langdale says: " If the means of investigation and verification be at hand, and the 58 TARTICULAh'S OF SALE, ETC. Misrepre- sentation. Fraud. Inconsistent statements. attention of the jtarty rec•ei^•ing the representations Le drawn to them, the circumstances of the case may be such as to make it incumbent on a com-t of justice to impute to liim a knowledge of tlie result, wliich upon duo inquiry lie ouglit to have obtained, and tlius tilt' notion of reliance on the representations made to him may be excluded." But if the vendor have made a positive misrepresentation and in the language of the Courts committed " legal fraud," it is quite clear that the non-intpiiry or insuificiont inquiry of the purchaser does not preclude him from relief on the ground of the vendor's misdescription. " In no way, as it appears to me, does the decision, or any of the grounds of decision, in Atticood v. Sun/// support the jiroposition that it is a good defence to an action for rescission of a contract on the ground of fraud that the man who comes to set aside the contract inquired to a cer- tain extent, but did it carelessly and inefficiently, and would, if he had used reasonable diligence, have discovered the fraud " : jier Jessel, M. E., in Redgrave v. Ilurd, 20 Ch. Div. 1, at p. 17. " The vendor cannot say you might have inquired, and then you would have found out I told you a lie " : per Jessel, M. K., in Matthias v. Yett-s, 4G L. T. N. S. 497. There the pm-chaser made a partial inquiry, but as the inquiry did not disclose the true state of the facts the purchaser was allowed to rescind on the ground of the vendor's misrepresentation. Much less can the vendor rely on the facilities given by liini to the piu'chaser for discovering the truth, if he have intcntionaUi/ misled the purchaser. " In such a case it is no answer to the charge of imputed fraud to say that the party alleged to be guilty of it recommended the otlier to take advice, or even put into his hands the means of discovering the truth. However negligent the party may have been to whom the incorrect state- ment has been made, yet that is a matter affording no ground of defence to the other. Xo man can complain that another has too implicitly relied on the truth of what he has himself stated " : per Lord Cranworth in Rcynell v. Sprye, 1 D. M. & Gf. G60, at p. 710. Where, however, the vendors made various and inconsistent representations as to the profits of the brewery wliidi they were MISDESCRIPTION DANS LOCUM CONTRACTUI. 59 selling, but gave the purchaser every facility for investigation, it was held that the inconsistency of the statements put the pur- chaser on inquiry : Clarke v. Machi)itosh, 4 Giff. 184. It is probable that in that case the Court believed as a fact that the purchaser was not misled. If it is proved that the pm'chaser knew the representation was partially untrue, the Court may infer that he did not rely upon the statement at all. Where the defendant described the pro- perty as standing " on a fine vein of anthracite coal, the finest vein of South Wales," and omitted to state that the vein had been j)artially worked and was almost exhausted, the pm-chaser, who knew that the coal had been partially worked, was held to be disentitled to relief for the misdescription, on the ground that he knew the description was false to a certain extent, and was therefore put on inquiry as to the extent to which the descrip- tion was true : Colby v. Gadsden, 34 Beav. 416. In judging whether the pm-chaser relied upon the represen- Pm-chaser' s . -, -J- 1 • 1 XT opportunities, tation, the Com-t takes into account the opportunities which the piu-chaser had of judging for himself, the inspection which he actually made, the fact that he was by s]3eoial education, or the circumstances of his business or profession, qualified to judge, or that he employed professional advice. The Court also considers the subject-matter, whether the vendor was or was not likely to know more about it than the purchaser, and whether inspection would be calculated to inform the piu-ehaser of the true facts or not. " ^Vlien we are endeavouring to ascertain what reliance was placed on representations, we must consider them with reference to the subject-matter and the relative knowledge of the parties. If the subject is capable of being accurately known, and one party is, or is supposed to be, possessed of acciu'ate knowledge, and the other is entirely ignorant, and a contract is entered into after representations made by the party who knows, or 'is supposed to know, ^\dthout any means of verification being resorted to by the other, it may well enough be presumed that the ignorant man relied on the statements made by him who was supposed to be better informed. But if the subject-matter is in it- nntnro uncertain, if all that is known about it is matter of 00 PARTICULAKS OF SALE, ETC. inference from something: olso, and if the parties making and receiving representations on the subject have eqnal knowledge, and means of acquiring knowledge, and equal skill, it is not easy to presume that representations made by one would have much, or any, influence upon the other" : per Lord Langdale, M. Jl., in ChijtJiam v. SJiillifo, 7 Beav. 146. In Jouiings v. Broiif//ito», 5 D. M. & Gr. 12H, which was a ease of a purchaser of shares in a mine seeking relief on the ground of misrepresentation of the eliaracter of the mine, Turner, L. J., after referring to a representation that in a particular level the lode showed a body of solid ore resting on the vein, three feet wide, largely intermixed with lumps of ore and calamine, and continuing to maintain ilie same width and characteristics to the extent of the workings, being seventeen yards fm-ther, says : " I find no evidence to waiTant this state- ment But to say that these statements in the report were not well-founded is one thing ; to say tliat tlie plaintiff was deceived l)y those statements, or was induced by them to piu'chase these shares, is another thing. Looking at the character which the plaintiff gives of himself, and which is given of him by his witnesses, I tliink it impossible to believe that he could have been at all induced to purchase these shares by the statement of there being lumps of calamine in this level. And with respect to the lode continuing to maintain the same width and cliaracteristics, the plaintiff was twice at tlio mine, once before he piu'chased any shares, and the second time in tlie interval between his two purcliases ; and, hoAvever ignorant he may be of mining, lie nnist at least have been capable of seeing whether the vein had or had not been laid open behind the j)oint where the solid ore was presented to his view. If it had, he must have known what were its characteristics. If (as was the fact) it had not, he must have known tliat this statement could only be matter of speculation, and not of certainty." This passage is quoted with approval by Lord Hatherley in lligfjins v. Scmic/s, 2 J. & H. 4G5. Special Tlie purchaser's profession, and therefore special knowledge, now e ge. ^^ often a material fact in determining whether he was misled. In HaUoics v. Fernie, 3 Ch. App. 467, wliich was a case of a MISDESCRIPTION DAXS LOCUM CONTRACTUI. 61- purchase of shares in a shipping company, the fact that the j)urchaser was a shipping agent and secretary to a company was considered important. See p. 477 of the Report. There are dicta in Haywood v. Copo, 25 Beav. 140, which seem to lay down the principle that if a piu'chaser has not the requi- site special knowledge, he ought to employ someone who has. *' He says he had no knowledge of mines and coal He ought, then, to have employed some j)erson who had a proper knowledge for that purpose (which I believe he did). It would he no excuse for a man who had himself personally inspected a house for the pui'pose of seeing whether it was in a projjer state of repair, afterwards to contradict his own judgment on the ground that he was not a siu"veyor, and was unable to say whether the house was in a sufficient state of repair or not." The correctness of these remarks may perhaps be doubted. The question is not ought the purchaser to have known, but did he know. In the case of a patent defect, or of notice (see Chaps. III. and YII.), it is immaterial whether the purchaser knew or not, but in other cases of defects in the condition of i\\Q property, or of misdescription by the vendor, the question of the purchaser's knowledge is a question of fact, not of presumption. If the investigation made by the purchaser could not correct Investigation the misrepresentation, the fact that the purchaser investigated does not relieve the vendor from the consequences of his mis- representation. Thus, where the pm-chaser, who was a lime-dealer or stone- mason, went with another person who was something of a chemist and something of an architect, to inspect a lime quarr}", their inspection did not fix the pm^chaser with notice that the lime was not of the quality described in the particulars of sale, because lime cannot be judged till it is burnt : Higgim v. Samels, 2 J. & H. 460. It is not necessary for the purchaser to prove that he relied Reliance on solely upon the misrepresentation. In NicoVs case, 3 De G. & J. tation alone. 387, where a shareholder in a joint stock bank sought to have his name struck out of the list of contributories on the ground that he was induced to accept the shares by the misrepresenta- tion of the dii-ectors, Lord Chelmsford says (p. 422), 'SSup- 62 J'AIMK TLAKS OF SALi:, KTC. Purchaser not influenced. Motive for rescindino-. posiiip", linwin't'i', lluit tile rciioi'ts and (illicr stalniioiits of the directors formed a material part of tlie inducement to take the shares, -without wliieh tlie piu'cliase wouhl never liave been made, I cannot think that tlio effect of tliem is destroyed because other influences were at the same time at Avork, which either innocently or intentionally contributed to the success of tliose false repre- sentations." See also the remarks of Lord Justice Turner, at p. 439, and Ed(jingto)t v. Fifzinaurice, 29 Ch. Div. 459. (3) The vendor niav prove tliat the purchaser was not influenced by the misdescription, or induced by it to buy what he would not liave bought had he known the facts, or to give a higher price than lie would otherwise have given. It is quite clear that if th(^ puri'liaser would have given tlie same price in any event he cannot complain that he has suffered loss by reason of the misdescription. The difficulty in such a case would, of course, be to prove the fact. Where the purchaser endeavoured to .resist specific perform- ance of a contract to buy " the interest " of the vendor in certain lands, on the ground that the vendor's agent had assured him the vendor had a good title, the Court held that the fact that the purchaser desired to buy out the vendor in order to remove his opposition to a bill in Parliament, showed that it was not the agent's representation wdiich induced the pm-chaser to make the contract : Hnme v. Peacock, 1 Ch. 379. In WJiittemore v. Wliittcmore, 8 Eq. 603, Malins, V.-C, gave the purcliaser compensation for a deficiency in quantity although he was " firnily persuaded that the purchaser woidd have given the same price for the property if those words " (the false description) "had been omitted." There was an affidavit by the purchaser that he would not have given so much if he had known the actual area. It is submitted that in spite of the strong assertion quoted above the Vice-Chancellor did believe this affidavit, or at all events thought that the vendor's proof to the contrary was insufficient. If not, it is submitted that com- pensation ought not to have been given to the purchaser. If the misrepresentation was material (see p. 52), the j^iu- chaser's motive for resisting specific performance is not regarded as relevant to the cpiestion whether he did or did not rely on the MISDESCRTPTIOX DANS LOCUM CONTRACTUI. 63 misrej^resentation : Deninj v. Ilaueoc];, 6 Ch. App. 1. See also, Brool-c V. Rouidhicaitc, Ha. 298, at p. 302. If the misrepre- sentation was one which woukl usnally be regarded as imma- terial, and the purchaser's own evidence is the sole proof that the misrepresentation complained of induced him to enter into tlie contract, the pm'chaser's motive for resisting specific per- formance is relevant as affecting the value of such evidence : see judgment of James, L. J., in Dciiii// v. Hancock, 6 Ch. 1. The principle that the misdescription must he one dann locum Actions of coiifracfiii, applies also to actions of deceit, i.e., actions for damages for fraudulent misrepresentation. If a fraudulent misrepresentation is not believed in or relied upon, the person complaining of it will be unable to recover damages in an action of deceit. And if a statement, although untrue to the knowledge of the person making it, is so trivial that it could not, in the opinion of the Com-t, have influenced the conduct of the jierson complaining of it, it will not support an action of deceit : Smith V. Chadicicl; 20 Ch. Div. 27, affd. 9 App. Ca. 187. 64 PARTICULAKS or SALE, KTC. CHAPTER VII. NOTICE. Of what thinfrs pur- chaser has notice. In the absence of any misrepresentation, or positive misstate- ment, tlie purcliaser cannot complain that he was misled where lie is fix('(l M-itli notice of the trno state of facts. (i.) The piu'chaser has notice of all patent defects in the condition of the propert}'. (ii ) He has notice of all facts stated in the particulars, or in the plan incorporated with the agreement for sale, whether he has looked at them or not. (iii.) Where the misdescription complained of is at the most an aniLig'uity, the piu'chaser has notice of all facts stated in either the particulars or the conditions. (iv.) If tlie particulars mention that the property is subject to a lease, or that the vendor is selling a leasehold interest, and a reasonable opportunity of insj)eetion of the lease or counterpart is offered, the purchaser has notice of the contents of the lease. A mere mention of the lease is not notice, (v.) If the particulars (or if, as to matters which need not be mentioned in tlie particulars, the conditions) ex- pressly refer the purchaser to some other document for information, and reasonable ojiportunity is offered to inspect such document, the purchaser has notice of such information if contained in the document, (vi.) In other cases the j^urchaser is not affected with notice, unless he has actual knowledge. Patent defects. Plan. (i.) Notice of patent defects: See Chap. HI., p. 3o. (ii.) Notice of jAan : See Chap. XI., p. 94. It is not neces- sary to cite eases to show that the purchaser has notice of the NOTICE. • 65 facts stated in the particulars. The object of the particulars is to describe the property, and if the purchaser does not read the particulars he has only himself to blame. (iii.) Notice of facts stated in tlic particuhns ami conditions Ambiguity. correcting an amhigaous description. If the misdescription complained of amounts only to an ambiguity (see p. 46), the vendor is entitled to rely on any statement contained either in tlie particulars or the conditions which would explain the ambiguity. Thus, where an underlease was described as a " lease," but there was a condition referring the purchaser to the lease, and another condition mentioning an " outstanding term of three days," the piux-haser was held to be affected with notice of the matters contained in the conditions which explained the am- biguity : CamheriveU, 8fc. Society v. HoUoicay, 13 Ch. D. 754. (iv.) Notice of contents of lease. Notice of • • 1 • 1 • lease. "Where a purchaser has notice of a lease, it is his business to look at the clauses of it to see whether it materially influences his judg- ment in the pui^chase. I see no distinction between this case and those where the landlord sells and says that the property is under lease. If he do not state it to be so, he does not state the case so as to enable the purchaser to know what he is to purchase, and that is a misrepresentation. But where there are outstanding leases, it is the duty of the purchaser who has notice of them to ask and ascertain what the terms are upon which the property is out on lease, so that he may know precisely the nature of the pro- perty which he purchases, that is, whether he has certain rights upon it, or whether his rights are in any way restricted": Alderson, B., in Pope v. Garland, 4 Y. & 0. 394, at p. 400. The rule that notice of a lease is notice of its contents is stated in the broadest manner in Hall v. S/nit/i, 14 Yes. 426. There Grant, M. B., says : "If the party has notice that the estate is in lease, he has notice of everything contained in the leases." Dart, p. 107, doubts whether the purchaser is affected with notice of " any matter in a lease which is not in its natiu-e incidental to such an instrument." "Wood, Y.-C, in Darlington V. Hamilton, Kay, 550, at p. 556, questioned whether the doc- trine of notice extended to collateral facts stated in the lease. 66 PARTICULARS OF SALE, ETC. Contents of lease. Derivative lease. Eeferenee to a lease lias been lu'ld to fix tlio laircliasor w illi notice of the following niattors contained in the lease : — The amount of the ground rent, and tlie tenns of some special coYenants : Pope v. Garland, 4 You. & Coll. 394. Covenants against noisome trades : Grosvciwr v. Green, 28 L. J. Ch. 173. A power for the tenant to cut the timher and sell it : Vig- nolles V. Bou-en, 12 Tr. Eq. E. 194. A covenant against alienation without licence : VaurjJian v. MagiU, 12 Ir. Eq. R. 200, 207 ; Smith v. Capron, 7 Ha. 185, at p. 189, where the purchaser saw the lease and an assignment thereof which was expressed to be made witli the lessor's licence.. A purchaser of leaseholds, described as being held with others under one lease reserving rent, was held to have notice of a power of re-entry, which was contained in the lease and affected the whole of the premises: Walter v. Maioide, 1 Jac. & W. 181, Mention of an annuity being charged on the property sold is sufficient notice of the existence of a term of years to secure such annuity : Vaurjhan v. Magill, 12 Ir. Eq. R. 207. The mere mention of the superior lease is not sufficient to affect the purchaser with notice that the underlease is an underlease of part only of the property comprised in the head- lease : Taylor v. Martindale, 1 Y. & C. C. C. 658. Even the statement that the underlease is a " derivative lease " is not sufficient to inform the purchaser that other property is com- prised in the head-lease : Bromfit v. Morton, 3 Jur. N. S. 1198. The case of the Bank of Ireland v. Broohfield Linen Co., 15 L. E. Ir. 37, seems to conflict with the above cases, and if so is open to doubt. There, though no opportunity of inspection was given, the piu'chaser of a sub-fee farm grant (which is of the nature of an underlease) was held to be affected with notice of everything contained in the superior grant, and in particular with the fact that the land was, with other land, subject to the payment of head-rents and covenants, and provisoes for re-entry. The case was decided on the autliority of Cosser v. Collin(/e, 3 M. & K. 283, where, however, an opportunity was given for examining the superior lease. NOTICE. 67 Reference in the conditions to a lease would seem not to be Lease men- sufficient notice ; the lease must be mentioned in the particulars, conditions. See Jones v. Riinmer, 14 Ch. Div. 588 ; see p. 68, below. Where the property sold was in the occupation of lessees for Tenants lives, and the particulars gave the names of the tenants, but not a description of their tenure, leaving a blank in the observation column opposite theii' names, it was held that the pm'chaser was affected with notice of theu' tenancy, and ought to have inquired what the tenm'e was, and that he was not entitled to conclude that they were tenants from year to year merely because other tenants in the same particulars were described as yearly tenants : Martin v. Cotter, 8 Ir. Eq. R. 147 (but qu. ?). This ease seems inconsistent with CahaUero v. Ilentij, 9 Ch. 447, and Hmjlies v. Jones, 3 D. F. & J. 307 ; see below, p. 68. (v.) Notice of documents generalhj. Other " If a property is sold subject to the provisions contained in a deed which is specially referred to without any mention of its contents, and which deed can be examined before the sale by the purchaser, he is bound by everything contained in that deed": j^er Romilly, M. R., in Cox v. Coventon, 31 Beav. 378. " If the parties do not choose to look at documents placed before them to which they are referred, they cannot complain that they have not a perfect knowledge of the nature of the interest with which they are dealing " : per Lord Cottenham in Deuces v. Beits, 12 Jul'. 709. But it is not sufficient, in order to fix the pm-chaser with notice Opportunity of the contents of a lease or other document, that such document is simply stated in the particulars or conditions to exist : Cox v. Coventon, 31 Beav. 378. The purchaser is not fixed with notice of any document unless a reasonable opportunity of inspection is given him : Meeve v. Berridye, 20 Q. B. Div. 523. As to the sufficiency of the opportunity of inspection given to the purchaser, see Brum fit v. Morton, 3 Jur. N. S. 1198, where Stuart, V.-C, says: "When the parties met to sign the agreement the abstract was put into the hands of the clerk of the solicitor of the defendant under circumstances which made a f2 68 I'AIMK TLAliS ()]■ SALE, 1:TC. deliberate examination of it almost impossible. A deliberate examination, if required, and if time had been given for it, no doubt it was the right of the piu'ohaser to demand ; but I cannot look upon it that the production of the abstract of many docu- ments in this case, each of which, in order well to understand the nature and contents of them, would require a very deliberate examination, affords such an opportunity as to justify the Com-t in considering that the pm'chaser must be lield, according to the law of this Court, to have notice of all the contents of that abstract." The same rule applies to the case of a contract to grant an underlease : Hyde v. Warden, 3 Ex. Div. 72, p. 80. "VVhere (vi.) Except in cases (i) to (v) inclusive, tlie purchaser is not affectS'b/'°* affected with notice unless he has actual knowledge, notice. ipj^p following are instances of cases in wliich a purchaser is not affected with notice : — The mention of incumbrances in the conditions of sale is not notice to the purchaser that the property is sold subject to the incumbrances ; they must be mentioned in the particulars : Torranee v. Bolton, 8 Ch. 118. Where the property is simply described as "held for tlie residue of a term of years, from ," and no mention is made of the rent in the particulars, a reference in the conditions to the lease under which the j)roperty is held, and a stij)ulation that he shall pay the rent and observe the conditions, is not notice of the fact that the property is subject to rent reserved by the lease : Jones v. JR'nnmer, 14 Ch. Div. 588. A condition precluding the purchaser from objecting to a specified underlease, or any other underlease, or tenancy prior to the said underlease, does not affect the purchaser with notice of any underlease other than the one specified. See Ediatrds v. Wickicar, 1 Eq. 68. Notice of a tenancy is not notice, as between the vendor and the purchaser, of the fact that the tenant has a lease : Cahallero V. Hentij, 9 Ch. 447. So, the statement that the property is "in the occupation of A. B. and others," is not notice that the property is subject to leases to these persons for lives: Hughes V. Jones, 3 D. F. & J. 307. The case of Mnrtin v. Cotter, 8 Ir. Eq. R. 147, cited above (p. 67), is probably a wrong decision. NOTICE. 69 Knowledge or notice that the property is in the occupation of tlie vendor's mother is not, as between the vendor and purchaser, notice of the fact that she is tenant for life : Ndthovpe v. Hohjate, 1 Coll 203. Tlie lessee of a house purchasing the reversion is not held to have notice that the cellar is not the lessor's property, merely because it was not in the lessee's occupation : Whittiiigfon v. Corder, 16 Jur. 1034. The purchaser is not affected with notice of a defect in the vendor's title simply because he resides in the neighboiu-hood, and the vendor's title is well known there : see Peglcr v. White, 33 Beav. 403. Notice of a covenant is not notice of the fact that the covenant has been broken : Ellis v. Rogers, 29 Ch. Div. 661. The statement, on the sale of improved ground rents, that the original lease comprising other j^i'operty contains certain re- strictive covenants, is not notice of the fact that the lessee has already granted underleases of other parts not containing these restrictive covenants : see Waring v. Hoggart, Ry. & Moo. 39. A statement on the sale of a life interest that the vendor guarantees the insm-aiice of the life at the rate of o guineas per cent., a rate which the purchaser knew to be liigher than the ordinary rate, is not sufficient to fix the purchaser with notice that the life is unhealthy : BrcaJcy v. ColUus, You. 317. A statement in the particulars or conditions that the land has been enfranchised under the Copyhold Acts would probably not be sufficient notice of the fact that the vendor has no title to the minerals. But an agreement by the vendor of copyholds to pro- cure an enfranchisement under the Copjdiold Acts, and convey the freehold to the pm-chaser, would be notice to the purchaser that he will have no title to the minerals : Kerr v. Pawson, 25 Beav. 394. Where the vendor has been guilty of misrepresentation, the Misrepresen- effect of notice is excluded, as the purchaser is justified in relying notice. on the vendor's own statement. Compare the rule that active misrepresentation entitles the purchaser to relief in the case of a patent defect : p. 43. As to what constitutes misrepresenta- 4 PARTICULARS OF SALE, ETC. tion, SCO p. IS ; and as to tlie vendor's silence under eortain circumstances amounting to a misrepresentation, see p. 21. "If a man is induced to enter into a contract by a false representation, it is not a sufficient answer to him to say, ' If you had used due diligence, you would have found out that the statement was untrue. You had the means afforded you of dis- covering its falsity, and did not choose to avail yourself of them.' Nothing can be plainer, I take it, on the authorities in equity, than that the effect of false representation is not got rid of on the ground that the person to whom it was made has been guilty of negligence" : per Jessel, ^. E., in Bodtjrarr v. Ilurd, 20 Ch. Div. 1, at p. V-]. "If a man makes a description calculated to mislead, I do not think it is well for him to say, ' If }'0u had been very carefid, you would have found out the blunder ' " : per James, Ij. J., in Me Arnold, 14 Ch. Div. 270, 2bl. And whether the misrepresentation be of a fact, or of the con- tents or eifect of a written document, the purchaser is entitled to rely on it and look no further: Stanley v. McGciNirin, 11 L. R. Ir. 314, at p. 331. Examples. In Be Arnold (14 Ch. Div. 270), the particulars described the j)roperty as " a compact small farm, containing 41a. 3r. 3op., divided as follows " ; and in the enumeration of the closes, one close was described as " 490a., Bottlesey Green, containing 7a. Ir. 27p.," but the measurement given in the column show- ing the " contents " gave the size of that close as 4a. Or. 38p., and this smaller amoimt tallied with the total amount of 41a. 3r. 3op. A plan was annexed to the particulars including the whole of 490a. The vendor was entitled only to four un- divided sevenths of 490a. He contended that the purchaser could see from the conflicting measmx^ments in the jiarticulars that a mistake had been made, and that the plan must have shown the pmx'haser that 490a. contained more than 4a. Or. 38p., because an adjacent close of la. Or. 28p. afforded an easy com- parison. The purchaser was held entitled to rescind. Where the right to receive a yearly sum by way of rent for the user of a piece of land as a ploasm-e ground, was put up for sale as a " freehold ground-rent," and reference was made in the NOTICE. 71 particulars to tlie lease reserving the rent, it was hold that the purchaser was not bound to look at the lease in order to discover that the thing sold was not a ground-rent : Evans v. Robins, 31 L. J. Ex. 465. But where a leasehold ground-rent, described as " amply secured on certain houses," was in reality secured by an under- lease for a term longer than tliat created by the lease, but the particulars went on to show how the groimd-rent was secured, and the conditions mentioned the fact of the length of the term, and referred the purchaser to the lease and underlease, the Court held that the piu-chaser could not complain : Smith v. Watts, 28 L. J. Ch. 220. On the sale of a lease it often happens that the vendor refers "Usual covGnfljUts to the lease as containing " the usual covenants." If the cove- nants are unusual, the misrepresentation entitles the purchaser to relief, notwithstanding that he has notice of the lease, and could have seen that the covenants were unusual. The question, " What is a usual covenant?" is a matter of evidence. Usual covenants may change from one generation to another ; they may vary in different parts of the country. In Hampshire v. Wickens {7 Ch. D. 555), Jessel, M. R., refers to Davidson's Precedents, 3rd ed., vol. v., p. 53, as showing what were usual covenants at that time. A distinction must be di'awn between a contract to sell a lease containing " the usual covenants," and a contract to grant a lease. A wider construction is put upon the word " usual " in the first case than in the second. Thus, a covenant not to assign without leave is not one which the grantor Avould be entitled to insert if the agreement were to grant a lease to contain the usual covenants : Buc]da)ul v. Papillon, 1 Eq. 477 ; and Hampshire v. Wickens, 7 Ch. D. 555. But such a covenant is so common and ordinary a covenant, at all events in or near London, as to justify a vendor in describing the lease offered for sale as a lease con- taining the usual covenants : per Kindersley, Y.-C, in Strang- u-aj/s V. Bishop, 29 L. T. 120. The following illustrations are taken from cases in which the Examples of dispute was between a vendor and a purchaser, or between a covenants." sub-lessor and sub-lessee, as to the covenants in the head-lease. 72 rAirncrLAK'N of salk, inc. A stipulation that underleases and assignments sliall he left with the lessor's solicitor for registration, and a fee of one guinea paid, is unusual : Broohes v. Dr//sdak, 3 0. P. D. 52. A covenant not to mow meadow land more than once a year is, in the case of a farm lease, not an unusual covenant, although it is more usual to qualify the covenant hy excepting from its ojieration cases Avhcre an equivalent in the shape of manure is hrought on the land : IL/dr v. Warden, 3 Ex. Div. 72, at p. 82. A power of re-entry if the lessee should heeome bankrupt or make a comjwsition with his creditors, or if execution should issue against him, is unusual, especially if the word lessee is expressed to include assigns : Ibid. A power of re-entry if any business but that of a licensed victualler should be carried on in the house is a usual covenant in a lease of a jmblic-house : Bennett v. Womacli, 7 B. & C. 627. On a contract to sell a lease, granted seventeen years previously, one of the covenants of which was that the lessee would build houses of a sj^ecified yearly tenantable value (which houses had not been built), the vendor's solicitors represented that the lease contained no covenants unusually restrictive. It was held that tins was a misrepresentation, as the covenant was unusual, since it did not specify any limit of time within which the building was to be required, and the pm-chaser might be called upon at any time by the lessor to allow the houses to be built : Andrew V. Aitkin, 22 Ch. D. 218. A covenant by the lessee to pay land-tax, sewers rate, and all taxes, is fairly described as a usual covenant in particulars of sale of a lease at a " net annual rent " : Bennett v. JFonineh-^ 7 B. & C. 627. A covenant to do substantial repairs is a usual covenant : Kendail v. Jli//, 6 Jm\ N. S. 968. "ITsuar' as The following cases, illustrating' what are usual covenants and between lessor " and lessee. what unusual, are added, with this caution, that, being cases of agreements to grant leases, the construction of the word "usual" is stricter than the construction adopted in the case of an agree- ment to sell an existing lease. A power of re-entry on the bankruptcy of the lessee is not a usual clause in a mining lease : Jlodf/kin.'^n)/ y, Cro>rr, 10 Eq. 501. NOTICE. - 73 A power of re-entry on the lessee's bankruptcy was considered usual in Uaincs v. Burnett, 27 Beav. 500, which was a case of a hotel lease. But this case was disapproved by Jessel, M. R., in Hampshire v. Wickens, 7 Ch. D. 555. A jiower of re-entry in case of " breach of any of the covenants and agreements by the lessee herein contained " is not a usual clause in a mining lease ; and, semble, not in any lease : Hodgkin- son V. Croivc, 10 Ch. 622. 74 PARTICULARS OF SALE, ETC. CHAPTER VIII. MISTAKE. Mistake may be discussed under two heads : (1.) Mistake relating to the subject-matter of the contract ; (2.) Mistake relating to the contract itself, or to the person of the other party. It is only the first of these that comes within the scope of this book. Mistake is treated of in this chapter under the three headings: (i.) of a purchaser seeking relief for his mistake ; (ii.) of a vendor seeking relief for his mistake ; and (iii.) of " common mistake." The third heading is not in 2mri materia with the other two, but it is convenient to discuss the law of common mistake separately, although logically it comes under both of the other headings. It will be seen that a mistake common to both parties is not necessarily a " common mistake," and that the essence of a " common mistake " is not that it is shared by both parties, but that it is a mistake going to the root of the matter, or a mistake invohang great hardship. Turchaser's (i.) FurchaHcv liceldnrj relief 0)1 (jvound of midakc. As a general rule, the purchaser will not be relieved on the ground of a mistake made by himself, and not caused by the vendor. The exceptions to this rule are cases of " common mistake " (on which see p. 78), and probably any cases of great hardship. Also, where the vendor is suing for specific performance, it must be remembered that specific performance is granted or withheld according to the " discretion " of the Com-t, and " it would be dangerous to attempt an exhaustive definition of the cases in which the Court will refuse specific performance " : jter Brett, L. J., in Tdmplin v. James, 15 Ch. Div. at p. 221. MISTAKE. 7^ Lord Erskino, in Stapijlfon v. Scott, 13 Yes. 425, after saying that a common mistake avoids tlie contract, adds : " Where the purchaser's inducement to the contract depends upon a mistake of his own, to which he was not led by the vendor, the con- sideration whether that avoids the contract is very different; though the Court has a discretion not to give specific perform- ance, but to leave the party to law." " If a person bidding had private information which misled him, he might be entitled to bring forward his mistake as a defence to specific performance, but he could not bring forward such a mistake as a ground of attack, if he were maintaining specific performance": per Romilly, M. R., in Fairhead v. Southce, 11 W. R. 739. It might, perhaps, be laid down that (apart from the cases of common mistake or great hardship) the Com't will compel the purchaser to complete, unless there was some reasonable excuse for his mistake: see Tamplin v. James, 15 Ch. Div. at pp. 221, 222. But even this qualification would seem to be doubtful. Where a house, not in Regency Square, but called " No. 39, Regency Square, Brighton," was put up for sale under that appellation, the purchaser, who bought in the expectation of having a house in the Square, was held to his bargain : White V. Bradahaic, 16 Jui". 738. The mistake was a very natural one, and one admitting of "reasonable excuse." Perhaps the dicta as to the discretion of the Court in decreeing specific perform- ance may all be referable to hardship, and the rule may be laid do"^Ti that, except in cases of unusual hardship, the piu'chaser will be compelled to complete in spite of his mistake. The amount of hardship must be left undefined. There would certainly seem to be great hardship in the Regency Square case. Where the pmx-haser made a mistake through relying on Examples of statements contained in the " fu"st edition " of the particulars of mistake, sale, which contained no conditions of sale, and would have dis- covered his mistake if he had read the second edition, of which three times as many copies had been printed, the vendor dis- tributing them widely and calling the attention of purchasers to them, no relief was given to the purchaser : Goddard v. Jeffreys, 51 L. J. Ch. 57. But, where the piu'chaser mistook 76 rAKTicri,AK8 of salk, ktc. ■ulilch lot was being sold, and bid for a lot lie did not -want, tlio vendor's bill for sjieeific perfonnance was dismissed witlioiit costs : Malins v. Freeman, 2 Keen, 2o. Si"»eeific performance was decreed of a contract to purchase leasehold houses, although the iiiu'chaser had mistaken the effect of the covenants, and found out afterwards that the lease pro- hibited him from applying the property to the purpose for which he had bought it : Morleij v. Clavevimj^ 29 Beav. 84. On a sale of freeholds and adjoining leaseholds in two lots, the first lot being described as freehold in occupation of H., and the second as leasehold, the piu-chaser of lot 2, who knew that part of the premises occupied by 11. and included in lot 1 Avas leasehold, and bouglit in the expectation that that leasehold pai-t would be included in his lot, was held not entitled to have the leasehold part of lot 1 conveyed to him or to receive compen- sation, as his mistake was not caused by the vendor : Fairhead v. Soutlice, U "W. Pt. 739. Where the purchaser, who was personally acquainted with the property, mistook the extent of the property offered for sale, trusting to his own knowledge, and not looking at the particulars, which would have undeceived him, he was compelled to complete notwithstanding his mistake: TampUn v. Jdnie-s, 15 Cli. Div. 215. Where the purchaser bought land 176 feet deep in order to l)uild a carriage factory, and discovered afterwards that owing to the Metropolis Management Act he would be unable to build higher than 12 feet for a sjoace of 62 feet fi'om the street ; the vendor's bill for specific performance was dismissed, but Avithout costs : Bray v. Brifj(js, 20 W. R. 9G2. Lord Eomilly decided the case simply on the ground of mistake ; but it may be noticed that the vendor had himself contributed to the mistake by advertising the property as fit for " a carriage factory or any building requmng space," and by telling th(^ purchaser lie could build Avithin 5 feet of the road. Vendor's The mere fact that the purchaser has made a mistake as to siIgticb the property, or the nature of the property, and that the vendor knows of this mistake, does not put upf)n the vendor the dut}' of foiTccting the mistake: see MorJr)/ \. C'lHrrrUirj, 29 Bonv. ^^. MISTAKE. i Wlien it is said, as in Dart, p. 104, that there may be a " silence which is as eloquent as words," this means a silence upon which the piu'chaser relies ; for instance, the silence of the vendor when the pm-chaser makes a statement in the vendor's presence expecting the vendor to contradict him if he is mis- taken. The passive acquiescence of the vendor in the pm'- chaser's self-deception would not, of itself, entitle the pm^chaser to avoid the contract : see Smith v. Hughes, L. R. 6 Q,. B. 597, a case of a sale of chattels without warranty. If, however, the vendor not only knows what the purchaser has in his mind, but knows that the purchaser is aware that he knows it, then the mistake of the pm'chaser is caused by the vendor's conduct, and the purchaser \\\\\ be relieved even though the vendor has made no active misrepresentation : see per Hannen, J., in Smith v. Hughes, L. R. G Q. B. at p. 611. If the vendor makes a misrepresentation to a third person, and that third person to the vendor's knowledge communicates the misrepresentation to the pm'chaser, the vendor is treated as having himself made the misrepresentation : Pilmove v. Hood, 5 Bing. N. C. 97. (ii.) Vendor seeking relief on ground of mistake. Vendor's As a general rule, mistake, other than " common mistake," is no ground for relie\'ing the vendor from the contract. A vendor is bound by the description of the property which he gives in the particulars of sale. " Any person, however unconversant in the actual situation of his estate that will give a description, must be bound by that, whether cognizant of it or not ": per Lord Thm-low in Crtlverleg V. Williams, 1 Yes. jun. 210, at p. 213. The vendor is said to know the real facts, because he undertakes to know by under- taking to give a description : Ibid. p. 212. In Baxendale v. Seale, 19 Beav. 601, and Earl of Durham v. Vendor r>iiji 111 !• relieved in Legara, 34 Beav. 611, the general rule that a vendor is respon- two cases, sible for the description he has given was not followed. In the former case the vendor was relieved from a contract to sell a manor with " all the lord's rights," when he discovered that certain valuable rights belonged to the manor which he had no intention of selling, and which he never thought belonged to 78 PARTICULARS OF SALE, ETC " Common mistake." Attempted definition of term. the manor. In the latter, tlie vendor described his property as containing 21,7o0 acres, Avlicn it contained only half that quantity. Lord lloniillv refused to grant the purcliaser partial performance with an abatement of the purchase-money, holding that this was a case of mistake. The true reason for the deci- sion in both cases probably was that they were cases of hardsliip ; in otlier words, it was tlie extent of the vendor's mistake whicli caused the Court to depart from tlie rule, and these cases should jtrobably be classed with other cases of " common mistake." (iii.) Common misfalic. If there has been what is called a common mistake, the CVmit will relieve either party from the contract, even though the con- tract has been completed by an actual conveyance of the property. The phrase "common mistake" is an instance of what has been termed legal shorthand ; it expresses something more than the literal meaning of the words themselves. Taken literally, the words merely mean a mistake in which both parties share, and the plu'ase is used in antithesis to a unilateral mistake. But when it is said that the Courts will relieve in case of common mistake, it is not meant that where both parties have made the same mistake, the Courts will relieve either of them from the contract. Every misdescription innocently made by the vendor, and believed in by the purchaser, is a mistake common to both parties, but it is not necessarily a "common mistake" in the language of law3'ers. The condensed phrase " common mistake " might be enlarged thus : " mistake common to both parties, and of such a nature that to enforce the contract wo\dd inflict very great hardship on one of the parties." It is true that where relief is given for a common mistake, the Courts do not ex- pressly advert to the question of hardshij). As a rule it is the subject-matter of the mistake which is considered. Thus, it is sometimes said that the mistake is "as to the subject-matter of the contract," and that " the parties were not ad tdeni," or (as in McKemie v. Hcnh-eth, 7 Ch. D. at p. 682, per Fry, J.) that the mistake " goes to the corjnis with which the contract deals," or is "a mistake as to the essential terms of the contract." In the absence of further definition, these plu'ases do not help us much to an explanation of what is meant by a common MISTAKE. 79 mistake. Is, for instance, a mistake as to acreage one which goes to the corpus or not? If the vendor having 100 acres of land bj a slip describes it as 200, is this a mistake as to the essential terms of the contract or not ? In JIcKetizie v. Hesket//, 7 Ch. D. 675, at p. 682, Fry, J., said that a mere difference in quantity had never been held to be a bar to specific performance (meaning specific performance at the instance of the piu'chaser or intending lessee). But in the Etfrl of Dtirhani v. LeganJ, 31 Beav. 611, the vendor, who had by mistake described his pro- perty as containing double the quantity which it really contained, was relieved from the consequences of his mistake, and the Court refused to grant the purchaser specific performance with abate- ment. If the phrase "mistake as to the corpus''^ means anything, it would seem to mean a " mistake as to the whole of the subject- matter " ; so that no relief would be given on the ground of a mistake affecting part only of the subject-matter, however large that part might be. The cases of Durham v. Legard and Baxen- dale V. Secde (see p. 7 7) do not support this view ; so the phrase " mistake as to the corpus " should be discarded as misleading. Further, there may be a mistake common to both parties and affecting the whole of the subject-matter, and yet not one for which the Court would relieve (as on a "common mistake") after conveyance. "If A. sells an estate, believing himself to have a good title when he has not, and B. pays for it, behev- ing the same thing, that is a mutual mistake; but it is a mutual mistake for which the pm^chaser will have to suffer, because when he once takes a conveyance and pays his purchase-money, there is an end to the matter " : perMalins, V.-C, in Allen v. Richard- sou, 13 Ch. D. at p. 543. The cases of " common mistake " have usually been cases in which the property, or the right of the vendor, had been destroyed before the sale, or in which the thing sold belonged all the time to the purchaser, or in which the interest of the vendor had been completely changed before the sale. A purchaser buying what afterwards turns out to have been Examples of his property all the time, is relieved from his bargain, even after mistake.'^ the execution of the conveyance : BingJuon v. Biugham, 1 Ves. sen. 126; Jones v. Clifford, 3 Ch. D. 779. 80 PAIMICL'LAKS UF .SAU:, KTC. Similarly, a person contract in <^- to take a lease of what lie afterwards discovers was his o^\n ja-operty at the time of the contract : Cooper v. rinhhs, L. R. 2 II. L. 149. A purchaser of a remainder in fee expectant on an estate tail was relieved, even after conveyance, as the remainder had abcady been destroyed by the tenant in tail executing a disen- tailing assiu'ance : IlitcJicock v. Giddiiujfi, 4 Pri. l^iS. And the fact that the purchaser might have discovered his rights from the abstract makes no difference : Buujhion v. Bingham, 1 Ves. sen. 126. A vendor of a reversionary interest, which, though ho was not aware of the fact, had at the time of the contract fallen into jios- session by the death of the tenant for life, was relieved from his bargain : Cohjcr v. Clay, 7 Beav. 188. A purchaser of a life annuity is entitled to recover his j^ur- chase-money, if at the time of the contract the annuitant was dead ; StrichJand v. Turner, 7 Exch. 208. Similarly, the piux'haser of an estate which at the time of the contract had been swej^t away by a flood : semhJe, Hitchcock v. Giddings, 4 Pri. 135, at p. 141. Mistake of The mistake upon which the relief is founded must be a law. mistake as to a matter of fact, not a mistake of law. A mistake as to private rights may be a mistake of fact, not of law. Thus, a person entitled to a fisher}-, thinking it be- longed to three other persons, agreed to rent it from them, but on discovering his mistake was held entitled to be relieved from the agreement : Cooper v. Phihhs, L. R. 2 H. L. 149. Lord West- bury said, ihld. }». J70 : " It is said ignoranfia J/iri.s htaid c.rriisaf ; but in that maxim Jus is used in the sense of denoting general law, the ordinary law of the country. But when the word jus is nsed in the sense of denoting a private right, that maxim has no application. Private right of ownershij). is a matter of fact ; it may be the result also of matter of law ; but if jiarties con- tract imder a mutual mistake and misaj)prehension as to their relative and respective rights, the result is that that agreement is liable to be set aside as having proceeded upon a common mistake." The application of the maxim, ignajraifia Jari.s neniincin excusat MISTAKE. 81 to cases of " common mistake " would, but for tlie discussions of that maxim in Cooper v. Phibhs, L. E.. 2 H. L. 149, and Beau- champ V. Winn^ L. R. 6 H. L. 223, 234, appear to te excluded l)j the fact that a " common mistake " is necessarily a mistake of fact. It is a mistake as to a private right, which, though it ma}' he dependent on an erroneous conclusion of law, is none the less a mistake of fact. A misrepresentation is different ; it is possible for the vendor to misrepresent the law without mis- representing the facts, or to separate his statement of law from his application of that law to the facts. The mere fact that the vendor's description is vague will not Vagueness 2")revent the Court from relieving him, if he had a definite notion description, of the extent of the subject-matter of the sale. Thus, where the vendor of a manor, " including all the lord's rights," discovered after the contract that several valuable rights over lands not in the parish in which the manor was situate belonged to the manor, the Court relieved him on the ground of mistake: Baxendalc v. Scale, 19 Beav. 601. If in that case both vendor and purchaser had intended the sale to be of a mere doubtful right, the extent and value of which was understood to be imknown to both, then the fact that the sale afterwards became disadvantageous to the vendor would not have affected the contract. But both parties intended the sale to be of something definite, though they did not necessarily form the same conception of the extent of the property which would be comprised. w. 82 PARTICULARS OF SALE, ETC. rescission. CHAPTER IX. FRAUD. It is impossible to give a definition of fraud Avliieli will fit all cases. In fact, the meaning of tlie words " fraud " and " fraudu- lent" has not oidy varied in the various Courts and at different times, but perliaps still varies to a certain extent according to the kind of action in which relief for the alleged fraud is sought. It will be necessary, therefore, to discuss the question, " Wliat is fraud ? " under the separate headings of an action for rescission before completion, an action for rescission after completion, an action of deceit, and an action for misrepresentation. Action for /• \ j{(.fiQj^ for rcsris-sion Ix'fore co)i}i)h'tiou. It was formerly considered that, though misrepresentation without fraud was sufficient as a defence to an action for specific performance, fraud was necessary to entitle the purchaser to rescission. Thus, in Sug. p. 244, under the head of rescission, we find the statement, " Unless a clear fraud be established there ought to be no relief in equity ; for there is a great difference between establishing and rescinding an agreement." James, L. J., in Torrance v. Bolton, 8 Ch. App. 118 (which was an action for rescission), explains away the word "fraud" in this passage (missing the point of the second part of the sentence) : he says {Ihid. p. 124), " The word 'fraud' there is nomen (jencralissinuim, and it must not be construed so as to mislead persons into the notion that contracts for the sale and purchase of lands are in any respect privileged, so as to be free from the ordinary jurisdiction of the Com-t to deal with them as it deals with any other instrument or any other transactions in which the Court is of opinion that it is unconscientious for a person to avail himself of the leffal advantage which he has obtained." FRAUD. 83 It may now be considered settled that an innocent mis- description by tlie vendor will entitle tlie pui"cliaser not only to resist an action by the vendor for specific performance, but to succeed in an action for rescinding the contract (subject to the rules laid down in Chaj^ter XII., as to completing with compensation). If there has been ix fraudulent misrepresentation the purchaser will be entitled to rescind, although the misrepresentation was in a "non-essential" matter (see p. 102), and the vendor offers to complete, with compensation for the misrepresentation. Even where there is a condition for compensation, that is treated as only " meant to guard against unintentional errors " : Duke of Norfolk V. Worthi/, 1 Cam. 337. A misstatement of rent is generally treated as non-essential (see p. 115), and the vendor is allowed to complete, giving com- pensation for the misdescription ; but in Diuiinock v. Hallett, 2 Ch. 21 (where the vendor's position was, if anything, strengthened by a condition for compensation), a misstatement of the occupation rent was held to entitle the purchaser to rescind, although the vendor offered compensation. Cairns, L. J., said that " the statement as to the rent was calculated to mislead, and was not prepared with the good faith which is requisite in conditions of sale." Turner, L. J., however, refrained from imputing " actual fraud." See p. 29 of the report. So, too, it would seem that a vendor who has fraudulently misstated the acreage cannot rely on the expression " more or less " to cover a deficiency in quantity, although the deficiency is such as, if the error had been innocently made, would have been covered by the words ''more or less": Winch v. TFin- chcster, 1 Yes. & B. 375, at p. 377. In Reese River Co. v. Smith, L. E. 4 H. L. 64, at p. 79 (which was in effect an action by a shareholder for rescission). Lord Cairns said a fraud had been committed, and added : " When I say a ' fraud ' I do not enter into any question with regard to the imputation of what may be called fraud in the more invidious sense against the directors. I think it may be quite possible, as has been alleged, that they were ig-norant of the untruth of the statements made in their prospectus. But I apprehend it to be the rule of law that if persons take upon g2 84 IWRTTCUT.AKS OF SALE, ETC. Ecscission after comple- tion. Definition of fraud. Examples of non-fraudu- lent state- ments. Vendor's non-disclosure of claims. tliemselvcs to make assertions as to wliicli tliey are ignorant, whether they arc true or untrue, they must, in a civil point o£ view, be held as responsible as if they had asserted that which they knew to be untrue." (ii.) Action for resci.mon after completion. In tlio absence of fraud, the Courts will not, as a rule, rescind a contract for sale which has been completed by the execution of the conveyance, and pajTnent of the purchase-money. Fraud in such a case must be actual moral fraud, consisting either of a positive misrepresentation intentionally or recklessly made, or of some other intentional act, e.g., the suppression of a defect in the title from the abstract. In some, however, of the cases in which the contract has been rescinded after the convey- ance, there seems to have been no actual fraud. " "Where the conveyance has been executed, I aj^prehend that a Court of Equity will set aside the conveyance only on the ground of actual fraud " : per Lord Campbell, in Wihlc v. Gib-son, 1 H. L. C. 615. In Lerjge v. Croker, 1 Ball & B. 506, the lessor had, in perfect good faith, assured the lessee that there was no right of way over the ground ; that there had been formerly, but that it had been legally stoj)ped by a presentment of the grand jury. It tui'ued out that there was a footway, the presentment ajiplying only to a carnage way, and the lessee was convicted for obstruct- ing it. Lord Manners, in dismissing the lessee's bill to be relieved from the lease, said : "If there were a wilful misrepresentation the plaintiff might be entitled to relief, but the lessor conceived himself entitled in point of law in asserting that there existed no light of way ; it cannot be called a misrepresentation." In Broicnlie v. Camphell, 5 App. Ca. 925, a representation which was false in fact, but which the vendor believed to be true, was held insufficient to entitle the purchaser to relief after conveyance, the pui'chaser having bought subject to " all risks of error in the particulars." There must be " a case of fraud, or a case of misrepresenta- tion amounting to fraud " : per Lord Selbornc, ihid. p. 937. As to non- disclosure by the vendor or his solicitor, Lord Hatherley said {ibid. p. 944) : " If it is with a fraudulent intent FRAUD. 85 that the disclosure is not made, and the facts are kept back for the purpose of deceiving those with whom he is treating, that is one thing. That might be dealt with as fraud. But to say that a person, who is aware that claims have been made, should tax his memory without any question being put to him upon the subject, and that he should be bound to remember all the claims which have been made, and all the grounds upon which they have been made, would be a doctrine which would be extremely alarming to all those who have to deal with estates. ... It is quite a different thing when a question is asked with reference to a particular fact, and an answer is given * yes ' or ' no ' as to that fact ^implkiter. The person who gives that reply must be answerable for the effects of his representation. Whether or not he bond fide was aware, and had treasm-ed up in his memory, the existence of certain facts connected with the property, he would be answerable if he took it upon himself to say that such and such a thing had not occurred or had occurred." "A misrepresentation innocently made becomes fraudulent Misrepresen- . tation fraudu- if the vendor afterwards discovers his mistake, and does not \(ini ex post coiTect it " : per Lord Blackbm-u in Broicnlle v. Camphcll, 5 App. ^"'^^°' Ca. at p. 950. And in such a case a contract would be re- scinded, even after completion : ClapJiain v. SJiiUifo, 7 Beav. 146, at p. 149. In some cases there may be fraud without any positive Fraud with- out misre- statement being made. preseutation. Thus, where a person, knowing that he has no title at all to the property, or to an essential or material part of it, and, knowing that the person with whom he is contracting is perfectly ignorant of the title, contracts to grant a lease, the lessee may rescind after comj^letion, even though there has been no affirmative statement made as to the title. See Mostijn v. West Mostijn, ^c. Co., 1 C. P. I). 145, where the lessor granted a lease of mines, a material portion of which, as the lessor knew, were situate below the low- water mark, and therefore belonged to the Crown. In cases of sales of land, it can rarely happen that the purchaser, after examining the abstract, knows less about the title than the vendor himself, unless the vendor has fraudulently 86 TAKTICULAKS OF SALE, ETC. "Legal fraud." Action of deceit. suppresppcl a deed, or commenced the title later, in order to avoid showing the defect. *' Wliether it would be a fraud to offer as good a title which the vendor knows to be defective in point of law, it is not necessary to determine. But if ho knows and conceals a fact material to the validity of the title, I am not aware of any principle on which relief can be refused to the purchaser" : per Grant, M. E., in Edurirds v. M'Lcai/, Gr. Coop. 308; affirmed 2 Sw. 287. In one case, the pm-chaser was relieved, even after conveyance, on the ground of " legal fraud." In Rart v. Suriine, 7 Ch. D. 42, the vendor, selling freehold and copyhold property, described it as fi-eehold. He had pre^'iously bought it with some other property, the whole being then described as " about three-fourths freehold and one-fourth copyhold," but there was nothing in the abstract to show that any j^art was cop3-hold. He afterwards sold part of the property to S., and entertained a vague notion either that no part of what he had bouglit was copyhold, or that what he sold to S. was the copyhold part. The Com-t held the representation to be fraudulent, and rescinded the contract, although the conveyance had been executed, on the ground that the vendor had com- mitted "legal fraud." But ILirf v. S/raiiie "was a case in which a representation that land was fi'cehold, which in point of fact was copyhold, was made under cu-cumstances bringing home knowledge, as strongly as anything in the world could do, to the person who made it" : Broicnlie v. CamphcJI, 5 App. Ca. at p. 938. The term "legal fraud" has been ridiculed by Lord Bram- well in Weir v. Bell, 3 Ex. Div. at p. 243, But Sii' James Hannen (in Peek v. Berry, 37 Ch. Div. 541, at p. 582) approves of the phrase, explaining it as " that degree of moral culpability in the statement of an untruth to induce another to alter his position to which the law attaches responsibility." (iii.) Action of deceit. As between vendor and purchaser, an action of deceit is necessary if the purchaser wishes to recover damages for the loss of his bargain on the ground of the vendor's fraudident mis- FRAUD. 87 description. If the misdescription has been innocently made, the purchaser can only recover, by way of damages, the expenses he has properly incuiTed in relation to the sale ; he cannot get damages for the loss of his bargain. See Chap. XVI. p. 122. An action of deceit is also necessary to enable the purchaser to recover compensation for misdescription after completion where there is no condition of sale enabling him to do so : Joliffe v. Baler, 11 Q. B. D. 255. The action of deceit is, in its origin, a common law action. To support the action it is necessary to allege and prove fraud : Hayo'cift v. Creasey, 2 East, 92. "An action of deceit is a common law action, and must be decided on the same principles, whether it be brought in the Chancery Division or any of the Common Law Divisions, there being, in my opinion, no such thing as an equitable action for deceit. It is a common law action in which it is necessary to prove that a statement has been made which, to the knowledge of the person making it, was false, or which was made by him with such recklessness as to make him liable just as if he knew it to be false. . . . Mere omission, even though such as would give reason for setting aside a contract, is not, in my opinion, if it does not make the substantive statements false, a sufficient ground for maintaining an action of deceit " : per Cotton, L. J., in Arlacright v. Neiv- bold, 17 Ch. Div. 301, at p. 320. In Peek v. Derr//, 37 Ch. Div. 541, Sir J. Hannen quotes the remarks of Lord Cairns in licese Hirer Co. v. Smith, L. R. 4 H. L. at p. 79 (see above, p. 83), and says that their ai^plica- tion extends to actions for deceit as well as to actions for the rescission of contracts. The judgments in Pecic v. Derri/ and Smith v. Ohadwick, 20 Definition of Ch. Div. 27, seem to suggest the following definition of the fraud requisite to support an action of deceit: — A false statement made by a person knowing it to be false, or not caring whether it be true or false, or believing it to be true without having reasonable ground for such belief. If this definition is correct, it would seem that no greater amount of fraud is requisite to support an action of deceit than is requisite to support an action for misrepresentation : see below, p. 88. 88 PAIM'ICULARS OF .SA1>E, ETC. " In an action of deceit, even tliough the statement may be untrue, yet if it was made in good faith, and the defendant had reasonable ground for believing it to be true, the defendant will succeed" : per Jessel, M. Jl., in Sniif// v. C/iadirick, 20 Cli. I)iv. 27, at p. 45. The plaintiff in an action of deceit must establish " actual fraud, which is to be judged of by tlie nature and cliaracter of the representations made, considered Avith reference to the object for which they were made, the knowledge or means of know- ledge of the person making them, and the intention which the law justly imputes to ever}^ man to produce those consequences which are the natural result of his acts " : per Lord Selborne, in Smif/i V. Chadwicl; 9 App. Ca. 187, at p. 100. In JoJiffe V, Bahcr, 11 Q. B. D. 2o5, at p. 275, it was said that " moral turpitude " is necessary. In Eaglc!