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 DAVID BOWEW^ './ ^ 
 
 ELEMENTS ^tvi 
 
 OF THP: law KEL.ViifNG TO 
 
 VENDORS AND PURCHASERS. 
 
 BY 
 
 DAVID BOWEN, F.G.S., M.I.MlN.E., 
 
 Of Lincoln s Inn, Barrister-at-Law. 
 
 This Publication is authorised by the 
 
 COLLEGE OF ESTATE MANAGEMENT 
 
 as one of its series of Text Books. 
 
 London : 
 
 THE ESTATES GAZETTE, Ltd., 
 
 33-35, KiRBY Street, Charles Street, 
 
 Hatton Garden, E.G. 
 
 1922.
 
 
 The Estates Gazette, Ltd., 
 
 33-35, KiRBY Street, Charles Street, 
 
 Hatton Garden, London, E.G.
 
 19\3^(.
 
 PR E FAC E 
 
 This work is intended for the guidance and assistance of 
 those engaged in business as Surveyors, Auctioneers, House 
 and Estate Agents, and Valuers. The desire to meet, as far 
 as possible, the numerous and varied points that constantly 
 arise in the course of professional practice naturally involve 
 as full and comprehensive a treatment of the subject as 
 limitations of space allow. No effort has been spared to 
 render the text clear and intelligible, Vv'hilst at the same time 
 avoiding any mis-statement of law. 
 
 It is believed that no important decision bearing on the 
 questions discussed in the text has been omitted, and for this 
 and other reasons it is hoped that the work may prove of some 
 assistance to legal practitioners. 
 
 For fuller information on the subject generally, or on 
 particular points, reference should be made to the specialised 
 works noted below. The author wishes to acknowledge his 
 deep indebtedness to these works generally. 
 
 The author is much indebted to Mr. Benaiah W. Adkin, of 
 the Middle Temple, and the College of Estate Management, 
 for his many helpful criticisms and suggestions. 
 
 D. B. 
 
 11, New Square, 
 
 Lin'coln's In\, W.C. 2. 
 May, 1922. 
 
 STANDARD WORKS OF REFERENCE. 
 
 Leake on "Contracts." 
 
 Benjamin on " Sale." 
 
 Dart on " Vendors and I'urchasers," 2 vols. 
 
 WSlliams on "Vendors and Purchasers." 2 vols. 
 
 Blackburn on "Contract of Sale." 
 
 Halsbury's "Laws of England," Vols. 7 and 25. 
 
 Webster on " Conditions of Sale."
 
 TABLE OF CONTENTS. 
 
 PART I. 
 
 PAGE 
 
 General Principles of the Law of Contract ... ... 1-117 
 
 CHAPTER I. 
 
 Nature of Contract of Sale ... ... ... ... 1-8 
 
 Section 1 — In General ... ... ... ... 1-3 
 
 Definition ... ... ... ... 1 
 
 Transfer of Ownership ... ... 1-3 
 
 Price in Money ... ... ... 3 
 
 Section 2 — Sales Distinguished from other Transactions 4-8 
 Nature of Transaction a Question of 
 
 Intention ... ... ... 4 
 
 Exchange or Barter ... ... ... 4 
 
 Bailment ... ... ... ... 4 
 
 Contract of Sale or Return or on 
 
 Approval ... ... ... 5 
 
 Pledge or Pawn ... ... ... 5 
 
 Mortgage ... ... ... ... 6 
 
 Gift 6 
 
 Assignments ... ... ... 7 
 
 Consignments ... ... ... 7 
 
 Agency ... ... ... ... 7 
 
 Contracts for Work and Materials ... 8 
 
 CHAPTER II. 
 
 Parties to Contract ... ... ... ... ... 9-21 
 
 Section 1 — Generally ... ... ... ... 9-10 
 
 Number of Parties ... ... ... 9 
 
 Parties affected by Contract ... ... 9-10 
 
 Section 2 — Capacity to Contract ... ... ... 10-19 
 
 General Rule ... ... ... 10 
 
 .Aliens ... ... ... ... 10 
 
 Convicts ... ... ... ... 11 
 
 Corporations and Companies ... ... 11-13 
 
 Infants ... ... ... ... 13-17 
 
 Married Women ... ... ... 17-19 
 
 Section 3 — Persons standing in Confidential or 
 
 Fiduciary Position ... ... 20-21 
 
 Solicitors, Guardians, Parents ... 20 
 
 Trustees ... ... ... ... 20 
 
 Partners ... ... ... ... 21 
 
 Agents ... ... ... ... 21
 
 TABLE OF CONTENTS. 
 
 CHAPTER III. 
 
 Formation of Contract — In General ... 
 
 Section 1 — Principles of Agreement ... 
 Agreement ... 
 Mutual Assent 
 Offer and Acceptance 
 Declarations of Intention 
 Continuing Offers 
 Acceptance ... 
 Conditional Offer 
 Conditional Acceptance 
 
 Illustrations 
 Counter-offer 
 
 Illustrations 
 Broker's Bought and Sold Notes 
 Subsequent Negotiations 
 
 Illustrations 
 Contracts by Post and Telegraph 
 Delay and Loss in Post 
 Revocation of Offer ... 
 Revocation of Acceptance 
 Effect of Death of Either Party 
 Sales by Auction 
 
 Section 2 — Contracts under Seal 
 
 Section 3 — Contracts in Writing 
 
 Agreement before Reduction into Writin 
 Effect of Reduction into Writing 
 Contract contained in several Writings 
 Admissibility of Extrinsic Evidence to 
 
 Explain or Vary Written Contract 
 Extrinsic Evidence as to Subject-matter 
 
 of Contract 
 
 PAGE 
 
 ... 22-40 
 
 ... 22-36 
 
 22 
 
 22 
 
 22 
 
 ... 23 
 
 23 
 
 23 
 
 24 
 
 25 
 
 ... 25-30 
 
 30 
 
 31 
 
 31 
 
 32 
 
 32 
 
 33 
 
 34 
 
 34 
 
 35 
 
 35 
 
 35 
 
 ... 36-37 
 
 ... 37-40 
 
 ng 37 
 
 38 
 
 gs 39 
 
 39 
 
 40 
 
 CHAPTER IV 
 
 Formation of Contract — Statute of Frauds and Sale of 
 Goods Act, 1893... 
 
 Section 1 — Introductory 
 
 Statute of Frauds 
 
 Sale of Goods Act, 1893 
 
 Contracts within Statute of Frauds, 
 
 Section 4 
 Contracts within Sale of Goods Act, 1893 
 Emblements or Fructus Industriales 
 
 41-60 
 
 41-44 
 41 
 41 
 
 41 
 42 
 42
 
 TABLE OF CONTENTS. 
 
 Chapter IV., Section 1 — Continued. 
 
 PAGE 
 
 Friictus Natiirales ... ... ... 43 
 
 Rule of Distinction ... ... ... 43 
 
 Buildings ... ... ... ... 43 
 
 Fixtures ... ... ... ... 44 
 
 Section 2 — Memorandum in Writing... ... ... 44-56 
 
 When to be made ... ... ... 44 
 
 What Writings sufficient ... ... 44-56 
 
 Broker's Bought and Sold Notes ... 46 
 Memorandum contained in several 
 
 Writings ... ... ... 46-48 
 
 What Memorand'um must contain ... 48 
 
 Contracting Parties ... ... ... 48 
 
 The Property sold ... ... ... 49 
 
 Vendor's interest in Property Sold ... 50 
 
 The Price ... ... ... ... 51 
 
 Price determined by Valuation ... 52 
 
 Valuation distinguished from Arbitration 53 
 
 Agreement of Party Charged ... ... 54 
 
 Memorandum varying from Contract ... 54 
 
 Signature of Party to be Charged ... '55 
 
 Signature by Agent ... ... ... 56 
 
 Section 5— Effect of Statutes ... ... ... 56-60 
 
 Effect of both Statutes the same ... 56 
 
 Contracts partly within the Statute ... 57 
 
 Contracts partly in Writing ... ... 57 
 
 Executed Contracts ... ... ... 57 
 
 Doctrine of Part Performance ... 58-60 
 
 CHAPTER V. 
 
 Reality of Consent. ... 
 
 RealitN- 
 
 of Consent 
 
 Section 1 — Mistake 
 
 Nature of Mistake 
 
 Modes of Mistake 
 
 Mistake of Law 
 
 Mistake of Fact 
 
 Mistake in Act of Agreement 
 
 Mistake in Expression of Agreement 
 
 Mistake as to Nature of Transaction 
 
 Mistake as to Identity of Other Party 
 
 Mistake bv one Partv known to the other 
 
 61-82 
 61 
 
 61-69 
 61 
 61 
 62 
 62 
 63 
 63 
 64 
 64 
 64
 
 Vlll 
 
 TABLE OF CONTENTS. 
 
 Chapter V., Section 1 — Continued. 
 
 PAGE 
 
 Mistake as to subject-matter of Contract 65-69 
 
 (a) Identity ... ... ... 65 
 
 {b) Existence ... ... ... 65 
 
 (c) Quality ... ... ... 66-68 
 
 Defects of Quality ... ... 66-68 
 
 {d) Quantity or Extent ... ... 68 
 
 (e) Price " ... ... ... 68-69 
 
 Section ^ — ^Misrepresentation ... ... ... 69-75 
 
 Definition ... ... ... ... 69 
 
 Representations in General ... ... 69 
 
 Effect of Misrepresentation ... ... 70 
 
 Misrepresentation must be Material ... 71 
 
 Reliance upon Misrepresentation ... 72 
 
 Statements of Opinion, etc. ... ... 73 
 
 Misrepresentation of Intention ... 74 
 Avoidance of Contract on Ground of 
 
 Misrepresentation ... ... 74 
 
 Restitution ... ... ... ... 75 
 
 Section 5— Fraud ... ... ... ... ... 75-78 
 
 Definition ... ... ... ... 75 
 
 Effect of Fraud ... ... ... 75 
 
 Rescission of Contract ... ... 76 
 
 Non-disclosure of Material Facts ... 76 
 
 Contracts Uberrituae Fidei ... ... 77 
 
 Puffers at Auctions ... ... ... 78 
 
 Section 4 — Duress ... ... ... ... ... 78-79 
 
 Definition ... ... ... ... 78 
 
 General Rule ... ... ... 79 
 
 Section 5 — Undue Influence ... ... ... 79-82 
 
 General Rule ... ... ... 79 
 
 Sale of Reversion ... ... ... 80 
 
 Trustees and Beneficiaries ... ... 80 
 
 Executor and Le.ijatee ... ... 81 
 
 Solicitor and Client ... ... ... 81 
 
 Parent and Child — Guardian and Ward 82 
 
 Other Cases ... ... ... 82 
 
 CHAPTER VI. 
 
 Contracts of Agents. 
 
 Section 1 — Introductory 
 Definition 
 
 General and Special Agents 
 Factors 
 
 83-109 
 
 , 83-85 
 
 83 
 
 83 
 
 83
 
 TABLE OF CONTENTS. IX 
 
 Chapter VI., Section 1 — Continued. 
 
 PAGE 
 
 Brokers ... ... ... ... 84 
 
 Auctioneers ... ... ... ... 84 
 
 House and Estate Agents ... ... 84 
 
 Del Credere .Agents ... ... ... 85 
 
 Section 2 — How Agency Arises ... ... ... 85-86 
 
 In General ... ... ... ... 85-86 
 
 Agency by Estoppel ... ... ... 86 
 
 Agency from Necessity of Case ... J6 
 
 Section 3 — Capacity of Parties ... ... ... 86-87 
 
 Of Principal ... ... ... 86 
 
 Of Agent ... ... ... ... 87 
 
 Section 4 — Appointment of Agents ... ... ... 87-88 
 
 To execute Deeds ... ... ... 87 
 
 Other Cases ... ... ... ... 88 
 
 Section 5 — Authority of Agents ... ... ... 88-93 
 
 Generally ... ... ... ... 88 
 
 Powers of .Attorney ... ... ... 89 
 
 Authority in Writing ... ... ... 90 
 
 Verbal Authority ... ... ... 90 
 
 Implied Authority ... ... ... 90 
 
 Factors ... ... ... ... 90 
 
 Brokers ... ... ... ... 91 
 
 Auctioneers ... ... ... ... 92 
 
 House and Estate Agents ... ... 93 
 
 Commission .Agents ... ... ... 93 
 
 Section 6 — Delegation of .Authority ... ■ ... ... 94-95 
 
 General Rule ... ... ... 94 
 
 Implied .Authority ... ... ... 94 
 
 Position of Sub-Agent ... ... 95 
 
 Section 7i — Execution of .Authority ... ... ... 95 
 
 Generally ... ... ... ... 95 
 
 Professional Agents ... ... ... 95 
 
 Section 8 — Ratification by Principal ... ... 96 
 
 Section 9 — Agent's Liability to Principal ... ... 97-99 
 
 Obedience to Instructions ... ... 97 
 
 To .Account ... ... ... ... 97 
 
 Purchases from, or Sales to Principal 98-99 
 
 Section 10 — Agent's Rights against Principal ...99-101 
 
 Remuneration ... ... ... 99 
 
 Lien ... ... ... ... 100 
 
 To Account ... ... ... ... 101
 
 TABLE OF CONTENTS. 
 
 Chapter VI. — Continued. 
 
 PAGE 
 
 Section 11 — Principal and Third Parties ... 102-106 
 
 Acts of Agents ... ... ... 102 
 
 Dispositions of Property by Agents ... 102 
 
 Dispositions under the Factors Act, 1889 103 
 
 Contracts of Agents ... ... ... 104 
 
 Broker's Bought and Sold Notes ... 105 
 
 Effect of Particular Customs and Usages 105 
 Effect of Misrepresentation or Fraud of 
 
 Agent ... ... ... ... 106 
 
 Liability for Wrongs of Agent ... 106 
 
 Section 12 — Agents and Third Parties 
 Liability on Contracts 
 
 106-107 
 106-107 
 
 Section 13 — Determination of Agency ... 108-109 
 
 By Agreement ... ... ... 108 
 
 By Completion of Transaction ... 108 
 
 By Expiration of Period' of Agency ... 108 
 
 By Destruction of Subject-Matter ... 108 
 
 By certain Events ... ... ... 108 
 
 Death, Lunacy, Bankruptcy of Principal 
 
 or Agent ... ... ... 108 
 
 Bv Revocation ... ... ... 109 
 
 CHAPTER VII. 
 
 Assignment of Contracts 
 Section 1 — In General 
 
 110-117 
 .. 110 
 
 Section 2 — Assignment by Act of Parties ... 110-115 
 
 Assignment of Liabilities ... ... 110 
 
 Assignment of Rights at Common Law 111 
 
 Assignment of Rights in Equity ... Ill 
 
 Effect of Judicature .\ct, 1873 ... Ill 
 Choses in .\ction within the Judicature 
 
 Act 112 
 
 Form of Assignment ... ... ... 113 
 
 Notice of Assignment ... ... 114 
 
 Priority of Notice ... ... ... 114 
 
 Title ' ... ... ... ... 115 
 
 Section S — Assignment by Operation of Law ... 115-117 
 
 In General ... ... ... ... 115 
 
 Effect of Death ... ... ... 116 
 
 Effect of Bankruptcy ... ... 116 
 
 Covenants running with the Land ... 117
 
 TABLE OF CONTEXTS. 
 
 XI 
 
 PART II. 
 
 The Sale of Goods Act, 1893 
 
 PAGE 
 
 119-214 
 
 CHAPTER I. 
 
 Formation of the Contract ... ... ... 119-142 
 
 Section 1 — Introductory ... ... ... 119-120 
 
 The Act in General ... ... ... 119 
 
 Contract of Sale ... ... ... 119 
 
 Sale and Agreement to Sell ... ... 120 
 
 Capacity of Parties ... ... ... 120 
 
 Section 2 — Formalities of the Contract ... 12U-126 
 
 General Rule ... ... ... 120 
 
 Ouasi-Contracts of Sale ... ... 121 
 
 Interpretation of Contracts ... ... 122 
 
 Contracts for £10 and upwards ... 122 
 
 Acceptance ... ... ... ... 123 
 
 Actual Receipt ... ... ... 124 
 
 Earnest and Part Payment ... ... 125 
 
 Note or Memorandum in Writing ... 126 
 
 Section 3 — Subject-matter of Contract ... 127-129 
 
 Existing or Future Goods ... ... 127 
 
 Goods which have perished ... ... 128 
 
 Good's perishing before Sale but after 
 
 .Agreement to Sell ... ... 129 
 
 Section .^— The Pfice ... ... ... 130-131 
 
 .Ascertainment of Price ... ... 130 
 
 .Agreement to Sell at X'aluation 130-131 
 
 Section 5 — Conditions and Warranties ... 131-137 
 
 In General ... ... 131-133 
 
 .Stipulations as to Time ... ... 133 
 
 When Condition to be treated as 
 
 Warranty ... ... ... 134 
 
 Implied L'ndertaking as to Title ... 135 
 
 Sale by Description ... ... ... 136 
 
 Implied Conditions as to Quality and 
 
 Fitness ... ... ~... ' 137-139 
 
 Section 6 — Sale by Sample ... ... ... ... 139 
 
 Section 7 — Sales bv Auction ... ... ... 140
 
 Xll 
 
 TABLE OF CONTENTS. 
 
 CHAPTER II. 
 
 Ekfects of the Contract 
 
 Section 1 — Transfer of Property 
 Generally 
 Unascertained Goods 
 
 PAGE 
 
 143-155 
 
 143-148 
 
 143 
 
 143 
 
 Property passes when intended to pass 143 
 Rules for ascertaining Intention 144-147 
 
 Reservation of Right of Disposal ... 147 
 
 Incidence of Risk ... ... ... 145 
 
 Section 2 — Transfer of Title ... ... ... 149-155 
 
 Sale by person not Owner ... ... 149 
 
 General Rule ... ... ... 149 
 
 Exceptions to General Rule ... ... 150 
 
 Sale by Authority or consent of Owner 150 
 
 Sale in Market Overt ... ... 151 
 
 Sale under voidable Title ... ... 152 
 
 Revesting of Property in Stolen Goods 153 
 
 Seller or Buyer in Possession after Sale 153 
 
 Effect of Writs of Execution ... ... 155 
 
 CHAPTER III. 
 Performance of the Contr.\ct ... ... ... 156-173 
 
 Section 1 — Obligations of Seller and Buyer in General 156-157 
 General Rule ... ... ... 156 
 
 Delivery and Payment are Concurrent 
 
 Conditions ... ... 156-157 
 
 Section ^—Delivery ... ... ... 157-169 
 
 Delivery ... ... ... ... 157 
 
 Place of Delivery ... ... ... 158 
 
 Time of Delivery ... ... ... 159 
 
 Goods in Possession of Third Person... 161 
 Hour of Demand or Tender ... ... 162 
 
 Expenses of and Incidental to Delivery 162 
 Delivery of Wrong Quantity or of Mixed 
 
 Goods ... ' .T. "... ... 163-165 
 
 Instalment Deliveries ... 165-168 
 
 Delivery to Carrier ... ... ... 168 
 
 Risk where Delivery at Distant Place 169 
 Section 3 — Acceptance ... ... ... 170-173 
 
 Buyer's Right of Examining Goods ... 170 
 When .Vcceptance takes place ... ... 171 
 
 Buver not bound to return Rejected 
 
 ■ Goods ... ... ... ... 172 
 
 i| Liability of Buyer for neglecting or 
 
 refusing Delivery ... 172-173
 
 T.\HI,I-: OF CONTEXTS. XUl 
 
 CHAPTER IV. 
 
 PAGE 
 
 Rights of Unpaid Seller against the Goods ... 174-197 
 
 Section 1 — In General ... ... ... 174-177 
 
 Definition ... ... ... ... 174 
 
 Unpaid Seller's Rit^hts ... ... 174 
 
 Conditions precedent to Existence or 
 
 Exercise of Rights ... ... 175 
 
 Distinction between various Rights ... 175 
 
 Instalment Contracts ... 176-177 
 
 Section 2— Unpaid Seller's Lien ... ... 177-182 
 
 When Lien exists ... ... ... 177 
 
 Where no Stipulation as to Credit ... 178 
 
 Where Goods sold on. Credit ... ... 178 
 
 Insolvency of Buyer ... ... ... 178 
 
 Where .Seller is Buver's Bailee ... 178 
 
 Part Delivery ... ... ... 178 
 
 Termination of Lien ... ... 179-181 
 
 Waiver (^f Lien ... ... 181-182 
 
 Section 3 — Stoppai.;e in iransitii ... ... 182-191 
 
 When Right Exists ... ... ... 182 
 
 Who may exercise Right ... ... 186 
 
 Against whom may Right be Exercised 184 
 Duration of Transit ... ... 185-187 
 
 Anticipation of End of Transit ... 187 
 
 Goods arrived at Destination but still 
 
 in Carrier's Possession ... ... 187 
 
 Delivery on Ship chartered by Buyer 188 
 Carrier's wrongful Refusal to Deliver ... 189 
 Exercise of Right ... ... ... 190 
 
 Duty of Carrier on .Stoppage ... 190-191 
 
 Section 4— Re-Sale or Pledge by Buyer ... 191-194 
 
 Effect of sub-sale or pledge by buyer 191-194 
 
 Section 5 — Effect of Exercise of Rights of Lien or 
 
 Stoppage ... ... 194-195 
 
 Sale not generally rescinded ... 194-195 
 
 Section 6— Re-Sale by Seller ... ... 195-197 
 
 Right of re-sale ... ... 195-197 
 
 Section 7 — Right of Withholding Delivery ... ... 197
 
 XIV TABLE OF CONTENTS. 
 
 CHAPTER V. 
 
 PAGE 
 
 Remedies for Breach of Contract ... ... 198-214 
 
 Section I— Introductory ... ... ... 198-199 
 
 Two kinds of Remedy ... ... 198 
 
 Damages ... ... ... ... 198 
 
 Specific Performance ... ... 199 
 
 Section ^—Remedies of Seller ... ... 199-204 
 
 Action for the Price ... ... 199-200 
 
 Damages for Non-Acceptance 201-204 
 
 Section 3 — Remedies of the Buyer ... ... ... 204 
 
 Damages for Non-Delivery ... 204-208 
 
 Specific Performance ... ' ... 208-209 
 
 Remedy for Breach of Warranty 209-211 
 
 Section 4 — -Interest, Special Damages and Failure of 
 
 Consideration ... 212-214 
 
 Interest ... ... ... ... 212 
 
 Special Damages ... ... ... 212 
 
 Failure of Consideration ... 213-217 
 
 PART III. 
 
 The Sale of Real Property ... ... ... 215-331 
 
 CHAPTER I. 
 
 The Contract of S.-^le ... ... ... ... 21.5-244 
 
 Section 1 — Formation of the Contract ... 215-216 
 
 General Principles .Applicable ... 215 
 
 Sale under " Open " Contract ... 215 
 Distinctive Functions of Particulars 
 
 and Conditions ... ... 215-216 
 
 Section ;g— Particulars of Sale ... ... 216-217 
 
 Description of Property ... 216-217 
 
 Section 5— Conditions of Sale ... ... 217-241 
 
 Generally ... ... ... ... 217 
 
 Biddings ... ... ... ... 218 
 
 Vendor's Reserv-ations ... ... 218 
 
 Payment of Deposit ... ... 218-220 
 
 Commencement of Title ... 220-222 
 
 Identity ... ... ... ... 222 
 
 Objections and Requisitions ... 223-225 
 
 Rescission ... 225-228 
 
 Completion ... ... ... ... 229 
 
 Interest on Purchase-money ... 230-231 
 
 Misdescription ... ... 231-235
 
 TABLE Ol' Ct)NTi:\TS. 
 
 Chaptkr I., Section 3 — Continued. 
 
 Possession or Receipt of Rents and 
 
 Profits 
 Outgoings 
 Conveyance 
 Title Deeds 
 Stamps 
 Existing Tenancies and Easements 
 
 PAGE 
 
 Forfeiture of Deposit and Re-sale 
 
 Section >, — Special Conditions 
 Fixtures 
 Timber 
 Covenants for Title 
 
 Section 5 — Sale by Auction in Lots 
 
 235 
 236 
 237 
 238 
 238 
 239 
 240-241 
 
 241-243 
 ... 241 
 241-242 
 
 242 
 
 242-243 
 
 CHAPTER II. 
 
 Proof and Investigation of Vendor's Title 
 Section 1 — Vendor's Obligation in General 
 As to Title to be shown 
 Length of Title 
 Proof of Title 
 Title under Statute of Limitations 
 
 244-272 
 244-247 
 .. 244 
 .. 245 
 .. 246 
 .. 247 
 
 247-: 
 
 247 
 
 Section 2 — Abstract of Title 
 Definition 
 Root of Title 
 
 Documents to be Abstracted 
 Liability for Non-disclosure 
 Registered Land 
 Expenses of Making and Delivering 
 
 Abstracts ... 
 
 Expenses of Production of Deeds, etc. 252 
 
 Section 5— Proof of Title ... ... ... 253 
 
 Abstracted Documents 
 
 Lost Documents 
 
 Acknowledgments 
 
 Private Acts of Parliament 
 
 Admittance 
 
 Annuities 
 
 Appointmenls 
 
 Deeds executed by Attorney 
 
 Awards 
 
 Bankruptcy ... 
 
 Birth 
 
 253 
 
 247 
 -249 
 249 
 250 
 250 
 
 251 
 -253 
 
 •259 
 253 
 253 
 253 
 254 
 254 
 254 
 254 
 254 
 255 
 255 
 255
 
 XVI 
 
 TABLE OF CONTENTS. 
 
 Chapter II., Section 3 — Continued. 
 
 Covenants ... 
 
 Custom 
 
 Death 
 
 Disclaimer 
 
 Enrolment 
 
 Estate Duty ... 
 
 Identity of Property ... 
 
 Intestacy 
 
 Land Tax 
 
 Leases 
 
 Legacies 
 
 Lunacy 
 
 Marriage 
 
 Orders and Proceedings of Courts 
 
 Portions 
 
 Possessory Title 
 
 Recited Facts 
 
 Registration 
 
 Rent 
 
 Seisin 
 
 Succession Duty 
 
 Wills 
 
 Section J, — Investigation of and Requisitions on Title 
 Generally 
 
 Examination of Documents of Title . 
 Requisitions and Inquiries 
 Waiver of Objections to Title ... 
 
 Section 5 — Searches and Inquiries ... 
 Necessity for Searches 
 Usual Searches 
 Writs and Orders 
 Lis Pendens 
 Annuities 
 Bankruptcy ... 
 Deeds of Arrangement 
 Land Charges 
 
 Registration under Land Transfer Act 
 Middlesex and Yorkshire Registries .. 
 Court Rolls ... 
 Disentailing Assurances 
 Acknowledgment of Married Women .. 
 Official Searches 
 Inquiries as to Tenancies ... 
 
 PAGE 
 
 .. 255 
 
 .. 255 
 
 .. 256 
 
 .. 256 
 
 .. 256 
 
 .. 256 
 
 .. 256 
 
 .. 256 
 
 .. 257 
 
 .. 257 
 
 .. 257 
 
 .. 257 
 
 .. 257 
 
 .. 257 
 
 .. 257 
 
 .. 257 
 
 .. 258 
 
 .. 258 
 
 .. 258 
 
 ,. 258 
 
 ,. 258 
 258-259 
 
 259-262 
 
 . 259 
 
 . 259 
 
 . 260 
 261-262 
 
 262-266 
 
 . 262 
 
 . 262 
 262-263 
 
 . 263 
 
 . 263 
 
 . 264 
 
 . 264 
 
 . 264 
 
 3 265 
 
 . 265 
 
 . 265 
 
 . 265 
 
 . 265 
 
 . 266 
 
 . 26a
 
 TABLE OF CONTEXTS. X\ 11 
 
 Chai'TKR II. — Continued. ' pagu 
 
 Section 6— Registration of Titit- ... ... 266-272 
 
 Registration ... ... ... 266 
 
 Compulsory Registration ... 266-267 
 
 Effect of Omission to Register ... 267 
 
 Voluntary Registration ... ... 267 
 
 Freehold' Land ... ... ... 268 
 
 Title which may be Registered ... 268 
 
 Leasehold Land ... ... ... 269 
 
 The Certificate ... ... 269-270 
 
 The Register ... ... ... 270 
 
 Evidence of 'i'itle ... ... ... 270 
 
 Transfers ... ... ... ... 270 
 
 of Freeholds ... 270-271 
 
 of Leaseholds ... ... 271 
 
 Charges and Mortgages .. 271-272 
 
 Cautions ... ... ... ... 272 
 
 Adverse Possession ... ... ... 272 
 
 CHAPTER III. 
 
 Effects of the Contract ... ... ... 273-305 
 
 Section 1 — Rights and Obligations of Parties in respect 
 
 of the Property Sold ^. ... ... 273-280 
 
 Ownership ... ... ... 273 
 
 Possession ... ... ... ... 274 
 
 Maintenance of Pro|)erty ... 274-275 
 
 Incidence of Risk ... ... 275-276 
 
 Insurance Money ... ... 276-277 
 
 Rents and Profits ... ... 277-279 
 
 Outgoings ... ... ... ... 279 
 
 Interest ... ... ... 279-280 
 
 Lien ... ... ... ... 280 
 
 Section ^--.^ssignment ... ... ... 281-291 
 
 xVssignment of the Property Sold 281-282 
 
 By the Vendor ... 281-282 
 
 By the Purchaser ... 282 
 
 Assignment of Benefit of Contract 282-283 
 
 Effect of Death of Vendor ... 283-584 
 
 Purchaser 284-285 
 
 Bankruptcy of Vendor 286-287 
 
 Purchaser 287-288 
 
 Winding-up of Company 288-290 
 
 Writs of Execution ... 290 
 
 Lunacy ... ... ... 291 
 
 B
 
 XVUl TABLE OF CONTENTS . 
 
 Chapter III. — Continued. page 
 
 Section 3 — Determination of Rights of Parties — 
 
 Vendor and Purchaser Summons ... 291-294 
 
 Vendor and Purchaser Summons 291-292 
 
 Scope of Jurisdiction ... ... 292 
 
 Questions determinable on Summons 293-294 
 Consequential Relief ... ... 294 
 
 Section J, — Remedies for Breaches of Uncompleted 
 
 Contract ... ... ... ... 295-305 
 
 Rescission by Vendor ... ... 295 
 
 Forfeiture of Deposit and Re-sale bv 
 
 Vendor ... ... ..". 295 
 
 Recovery of Deposit by Purchaser ... 295 
 Repudiation by Purchaser ... ... 296 
 
 Damages ... ... .:. ... 297 
 
 Specific Performance ... 297-304 
 
 Specific Performance with Compensa- 
 tion ... ... 304-305 
 
 CHAPTER IV. 
 
 Completion and Conveyance ... ... ... 306-331 
 
 Section 1 — Preparation and Form of Conveyance 306-309 
 
 Preparation ... ... ... 306 
 
 Form of Conveyance ... ... 306 
 
 Sale of Incumbered Land ... ... 307 
 
 Discharge of Incumbrances on Sale by 
 
 Payment into Court ... ... 307 
 
 Parties to Convey ... ... 307-308 
 
 Parties to whom Conveyance is made 308-309 
 
 Section 2 — Form and Contents of Deed of Conveyance 309-322 
 
 (i.) Conveyance of Freeholds ... 309-319 
 
 Form and Contents of Deed ... ... 309 
 
 Recitals ... ... ... 309-310 
 
 Consideration ... ... ... 310 
 
 Operative Words ... ... ... 311 
 
 Parcels ... ... ... ... 311 
 
 , General Words ... ... 312-314 
 
 Exceptions and Reservations ... ... 314 
 
 Habendum ... ... ... ... 315 
 
 Covenants for Title ... ... 315-319 
 
 (ii.) Assurance of Copyholds ... 319-321 
 
 Mode of Assurance ... ... 319-320 
 
 Covenants for Title ... ... ... 321
 
 TABLE OF CONTENTS. xix 
 
 Chacter IV., Section 2 — Continued. 
 
 
 P.AGE 
 
 (ill.) .A^ssurance of Leaseholds 
 
 
 321-322 
 
 Mode of .Assurance ... 
 
 
 ... 321 
 
 Recitals 
 
 
 ... 321 
 
 Parcels 
 
 
 ... 321 
 
 Covenants for Title ... 
 
 
 321-322 
 
 Covenants by Purchaser 
 
 
 ... 322 
 
 Sale in Lots ... 
 
 
 ... 322 
 
 Section S — Completion 
 
 
 322-326 
 
 Execution of Conveyance 
 
 
 322-323 
 
 Payment of Purchase-money 
 
 and 
 
 Receipt 
 
 
 323-326 
 
 Adjustment of .Accounts 
 
 
 ... 326 
 
 Section 4 — Stamps 
 
 
 326-327 
 
 Rates of Stamp Duty 
 
 
 ... 326 
 
 Meaning of Conveyance on 
 
 Sale 
 
 ... 327 
 
 Conveyance of Separate 
 
 Parcels 
 
 bv 
 
 Different Deeds ... 
 
 
 ... 327 
 
 Conveyance to Sub-Purchaser 
 
 ... 327 
 
 Section 5 — Registration, Enrolment and Notices 
 
 327-328 
 
 Registration ... 
 
 
 ... 327 
 
 Enrolment ... 
 
 
 ... 328 
 
 Notices 
 
 
 ... 328 
 
 Section 6 — Rectification and Restitution 
 
 
 328-329 
 
 Rectification of Conveyance 
 Restitution ... 
 
 
 ... 328 
 328-329 
 
 Section 7 — Rights and Obligations of Parties as to 
 
 Covenants '. 329-331 
 
 Covenants running with the Land 329-330 
 Injunction against Breach ... ... 330 
 
 Application of Rule in Talk v. Moxhay 330 
 Building Scheme ... ... ... 331
 
 XX 
 
 TABLE OF CONTENTS. 
 
 PART IV. 
 
 Sai.ks under Special Powers 
 
 PAGE 
 
 333-36S 
 
 CHAPTER I. 
 
 Sales by Fiduciary Vendors 
 
 Section 1 — Sales under the Settled Land Acts... 
 Principle of Settled Land Acts 
 Power of Tenant for Life 
 Conditions of Sale ... 
 Exercise of Powers ... 
 Effect of Conveyance ... 
 
 Section 2 — Sales bv Trustees 
 General Powers 
 Time for Sale 
 Implied Powers 
 Sale of Timber and Minerals ... 
 Mode of Sale 
 Depreciatory Conditions 
 The Price 
 Title and Conveyance 
 
 33-346 
 
 333-336 
 
 333 
 
 333 
 
 334 
 
 .. 335 
 
 335-336 
 
 336-341 
 
 336 
 
 .. 337 
 
 337-338 
 
 338-340 
 
 340 
 
 .. 340 
 
 340-341 
 
 341 
 
 Section S — Sales bv Executors and .Administrators 341-342 
 
 Section 4 — Sales by Mortgagees 
 
 343-346 
 
 Statutory Powers of Sale in General 343 
 When Power of Sale arises ... ... 343 
 
 Mines and Minerals ... ... ... 344 
 
 Estate and Interest passing by Con- 
 veyance ... ... ... 345 
 
 Protection of Purchaser ... ... 345 
 
 Position of Mortgagee Exercising 
 
 Power ... ."-.^ ... 34.5-346 
 
 Effect of Fr>reclosure Decree ... ... 346 
 
 CHAPIER II. 
 Sales u.nder Order ok Court ... ... ... 347-351 
 
 Section 1 — ^Jurisdiction of the High Court ... 347-34S 
 
 Power in regard to Goods, etc. ... 347 
 
 Jurisdiction of Chancery Court in regard 
 
 to Real Estate ... ... ... a47 
 
 Debenture Holders' Actions ... ... 347 
 
 Redemption and Foreclosure Actions ... 348 
 Effect of Order ... ... ... 348
 
 TABLE OF CONTENTS. 
 
 XXI 
 
 Chapter II., Section 1 — Continued. 
 
 Section 2 — Mode and C\)nduct of Sale 
 Mode of Sale 
 Conduct of Sale 
 Leave to Bid 
 
 Particulars and Conditions 
 Certifvinrt the Result 
 
 PACK 
 
 349-351 
 .. 349 
 349-3o0 
 .. 350 
 .. 351 
 .. 351 
 
 CHAPTER III. 
 
 Sales under The Lands Clauses .Acts ... 
 
 Section 1 — Introductory 
 
 Object of Lands Clauses Acts 
 
 352. 
 352. 
 
 Enablino and Restrictive Provisions of 
 
 Code ... ... ... 352. 
 
 Superfluous Lands ... ... 353. 
 
 Section ^^Acquisition of Land by .\greement 355- 
 Power to Purchase ... 
 
 Consideration for the Sale ... 355 
 
 Purchase for Extraordinary Purposes 356- 
 
 Section 5— Compulsory Acquisition of Land 357- 
 Exercise of Powers ... 
 
 Notice to Treat ... ... 357- 
 
 Effect of Notice to Treat ... 358- 
 
 Restrictions on taking Part of House 
 
 or .Manufactory ... ... 360 
 
 Section 4 — Assessment of Purchase Price and Com- 
 pensation ... ... ... ... 361 
 
 General Principle 
 
 Compensation for Injury by Severance 
 
 Compensation for .Mines and Minerals 362 
 
 Section 5 — Completion and Conveyance ... 363 
 
 Specific Performance 
 Completion where Owner in Default 363 
 
 364 
 
 354 
 352 
 
 353 
 •354 
 
 357 
 355 
 356 
 •357 
 
 361 
 357 
 •358 
 360 
 
 -361 
 
 363 
 361 
 362 
 •363 
 
 •364 
 363 
 364 
 
 CHAPTER IV. 
 
 Sales under Distraints kor Rent 
 Origin of Right 
 Notice of Distress 
 Appraisement 
 Time of Sale 
 Place of Sale 
 
 365-368 
 
 ... 365 
 
 ... 365 
 
 ... 366 
 
 366-367 
 
 ... 367
 
 xxu 
 
 TABLE OF CONTENTS. 
 
 Chapter IV.- 
 
 — Continued. 
 
 PAGE 
 
 
 Parties to Sale 
 
 367 
 
 
 Mode of Sale 
 
 367 
 
 
 Effect of Sale 
 
 367-368 
 
 
 Price 
 
 368 
 
 
 Overplus 
 
 368
 
 TABLE OF CASES. 
 
 Abbott V. Wolsey 
 
 Aberanian Ironworks v. Wickcns 
 
 Aberdeen Rly. Coy. v. Blakie 
 
 Acebal v. Levy 
 
 Acme Wood Coy. v. Sutherland Cov. 
 
 Acraman v. Morrice ... 
 
 Adams v. Broughton 
 
 Adams v. Haggur 
 
 Adams v. Hall 
 
 Adams v. London and Hlackwall Rly Coy 
 
 Adams v. Richards ... 
 
 Adams v. Wheatley ... 
 
 Adamson v. Jarvis ... 
 
 Adderley v. Dixon 
 
 Addis V. Gramophone Coy. 
 
 Addison v. Cox 
 
 Agius V. G.W. Rly. Coy. 
 
 Airey, Re 
 
 Aitken Campbell and Co. v. BouUen 
 
 Ajello V. W'orsley 
 
 Aldborough v. Trye ... 
 
 Aiderton v. Archer 
 
 Aldridge v. Johnson ... 
 
 Alexander v. Crosby ... 
 
 Alexander v. Crystal Palare RIv. Coy. 
 
 Alexander v. Uavis ... 
 
 Alexander x'. Gardner 
 
 Alhambra, The 
 
 Alison, Re 
 
 Allan V. Gripper 
 
 Allan 7'. Sundin 
 
 AUcard v. Skinner 
 
 Allcard v. Walker ... 
 
 Allen and Driscoll's Contract, A't 
 
 Allen V. Cameron 
 
 Allen V. Flicker 
 
 Allen V. Hopkins 
 
 Allen V. Taylor 
 
 Alsager t'. St. Katherine Dock Coy 
 
 Alsop V. Oxford 
 
 p.\c;e 
 
 124,171 
 
 73 
 
 81 
 
 130, 200 
 162 
 144 
 122 
 
 43 
 
 107 
 
 359, 363 
 
 131, 211 
 
 49 
 
 100 
 
 298 
 
 297 
 
 111 
 
 199 
 
 254 
 
 164 
 
 150 
 
 80 
 
 55 
 
 4 
 
 201 
 
 360 
 
 109 
 
 146 
 
 40 
 
 258 
 
 188 
 
 40 
 
 79 
 
 62 
 
 237 
 
 200 
 
 366 
 
 51 
 
 314 
 
 182 
 
 253
 
 XXIV TABLE OF CASES. 
 
 PAGfi 
 
 Ames V. Higdon ... ... ... ... ... 345 
 
 Anderson v. Morrice ... ... ... ... ... 149 
 
 Andrews v. Mockford ... ... ... ... 76 
 
 Angell V. Duke ... ... ... ... ... 57 
 
 Angus V. Clifford ... ... ... ... ... 71 
 
 Angus V. McLachlan ... ... ... ... ... 182 
 
 Appleby v. Johnson ... ... ... ... ... 25 
 
 Appleby v. Myers ... ... ... ... ... 130 
 
 Appleton V. Binks ... ... ... ... ... 107 
 
 Arbib and Class, Re ... ... ... ... ... 227 
 
 Archer v. Baynes ... ... ... ... "... 45, 55 
 
 Archer v. Stone ... ... ... ... ... 64 
 
 Argehtina, The ... ... ... ... ... 194 
 
 .^rmitage v. Insole ... ... ... ... ... 159 
 
 Armstrong v. Jackson ... ... ... ... 3 
 
 Armstrong ■:). .Stokes ... ... ... ... ... 105 
 
 Arnison v. Smith ... ... ... ... ... 72 
 
 Arnold, Re, Arnold v. Arnold ... 67, 216, 232, 239, 296, 304 
 
 Arnold, Re, The Battersea Park Acts ... ... 359 
 
 Arnot V. Briscoe ... ... ... ... ... 106 
 
 Arran and Knowlesden and Greer's Contract, Re ... 221, 247 
 
 Ashburner i^. Sewell ... ... ... ... ...226,228 
 
 Ashmore v. Cox ... ... ... ... ... 171, 204 
 
 Ashworth v. Mounsev ... ... ... ... 222 
 
 Astey V. Emery ... ... ... ... ... 123 
 
 Atkinson v. Bell ... ... ... ... ... 201 
 
 Atkinson and Horsell, Re ... ... ... ... 247 
 
 Attorney-General v. Day ... ... ... ... 301 
 
 Attorney-General v. G.E. Rly. Coy. ... ... ... 353 
 
 Attorney-General v. Stewards ... ... ... ... 164 
 
 Attwater v. Kinnis ... ... ... ... ... 136 
 
 Attwood V. Emery ... ... .. ... ... 160 
 
 Attwood V. Munnings ... ... ... ... 89, 95 
 
 Attwood V. Small {see Small v. .Attwood) ... ... 71,72 
 
 Aubrey v. Fisher ... ... ... ... ... 242 
 
 Audley v. Pollard ... ... ... ... ... 184 
 
 Austerberry v. Oldham Corpn. ... ... ... 329 
 
 Austin V. Croome ... ... ... ... ... 238 
 
 Averv v. Bowden ... ... ... ... .. 203 
 
 Ayles-y. Cox ... ... ... ... ... 232,303,304 
 
 Aylesford v. Morris ... ... ... ... ... 75, 79 
 
 Azemar v. Casella ... ... ... ... ... 137 
 
 Bach V. Owen ... ... ... ... ... 126, 160 
 
 Badische Fabrik v. Basle Works 145, 147, 168, 169, 170, 180 
 
 Baifel V. Miller ... ... ... ... ... 35
 
 TABLE OF CASES. X\V 
 
 PAGE 
 
 Baglehole v. Walters ... ... ... ... 67, 303 
 
 Baj^Dt 7'. Chapman ... ... ... .. . . 64 
 
 Bailey v. Barnes ... ... ... . 217, 34o 
 
 Bailey v. Piper ... ... ... -34 
 
 Bailev v. Sweeting ... ... ... ■• 45. .■)4 
 
 Bain'-y. Fothergill ... ... ... ... ...226,296 
 
 Baird 7'. Fortune ... ... ... ... . . 40 
 
 Baker and Selnion, Re ... ... ... ... 244 
 
 Baker v. Courage ... ... ... ... 61 
 
 Baker 7'. Dening ... ... ... ... ... -56 
 
 Baker 7'. Yorks. Fire Association ... ... ... o5 
 
 Baldey 2;. Parker ... ... ... ...123,124,163,178 
 
 Baldwyn v. Smith ... ... ... ... ... 17 
 
 Ballard v. Shutt ... ... ... ... ... 279 
 
 Balmanno t;. Lumley ... ... ... ... 2.34 
 
 Bambrigge v. Brown ... ... ... ... ... 82 
 
 Bamford 7-. Shuttleworth ... ... ... ... 220 
 
 Banister, i?e ... ... ... 6^,77,248,3.50,351 
 
 Bank of Africa 7'. Salisbury Mining Coy. ... ... 182 
 
 Bank of S. Australia, Re ... ... ... ... 2s9 
 
 Ilanner, Ex parte ... ... ... ... ... 148 
 
 Bannerman v. White... ... ... ... ... 131 
 
 Barclav v. .Messenger ... ... ... ... 229 
 
 Baring t;. Corrie ... ... ... ... 83.84.91,101 
 
 Barker v. Cox ... ... ... ... . -31 
 
 Barker, v. Illingworth ... ... ... 343 
 
 Barker v. Windle ... ... ... ... •■ 164 
 
 Barkshire 7;. Grubb ... ... ... ... ...313,314 
 
 Barkworth 7'. Young ... ... ... ... ... 45 
 
 Barlow t;. O.sborne ... ... ... ... ...349,351 
 
 Barnes v. Wood ... ... ... ... ••• 234 
 
 Barnwell 7'. Harris ... ... ... -.• ••• 245 
 
 Barr v. Gibson ... ... ... ... 66. 128, 129 
 
 Barr -■. Waldie ... ... ... ... • 161 
 
 Barren, Ex parte ... ... ... ... ■■■ 287 
 
 Bnrrick v. Buba ... ... ... •■• • 203 
 
 Br.rrow, Ex parte ... ... ... ... • ^^^ 
 
 Barrow v. Arnaud ... ... ... ... • • 202.204 
 
 Barrow 7'. Isaacs ... ... ... •■■ • • 61 
 
 Barrv v. Van den Hurk ... ... ... ■•• 205 
 
 Barsht V. Tagg • 2.35,236,237 
 
 Bartholomew v. Freeman ... ... •. • • 347 
 
 Bartlett 7-. Holmes ... ... ... .•• ...161.162 
 
 Barton v. Dawes ... ... ••• ••• • • •''^^ 
 
 Barwick v. English J. S. Bank ... ... • K'6 
 
 Baskcomb v. Beck with ... ... ■•• 216
 
 XXVI TABLE OF CASES. 
 
 PAGE 
 
 Basnett v. Moxon ... ... ... ... ... 348 
 
 Bastable, Re ... ... ... ... ' ... 286 
 
 Batchellor v. Lawrence ... ... ... ... 184 
 
 Bateman and Parker's Contract, Re ... ... ... 354 
 
 Bateman v. Hunt ... ... ... ... ... 114, 324 
 
 Baumann v. James ... ... ... ... .•■ 47 
 
 Baumwell Manufactur. v. Furness ... ... -•• 189 
 
 Baxendale v. Seale ... ... ... ... ... 66 
 
 Baxter v. Middleton ... ... ... ... ... 2b'3 
 
 Bayley v. G.W. Rly. Coy. ... ... ... ... 313 
 
 Bayley and Shoosmith, Re ... ... ... ... 229 
 
 Bayley- Worthington and Cohen's Contract, Re ... 231 
 
 Bavliffe v. Butterworth ... ... ... ... 92 
 
 Bead v. Blandford ... ... ... ... ... 120 
 
 Beal V. S. Devon Rly, Coy. ... ... ... ... 97 
 
 Beale v. Kvte ... ... ... ... ... 63 
 
 Beardmer v. L. & N. W. Rly. ... ... ... ... 353 
 
 Beauchamp v. Winn ... ... ... ... ... 62 
 
 Beaufort, Re ... ... ... ... ... 284 
 
 Beaumont v. Brengeri ... ... ... .. 124 
 
 Beaumont v. Dukes ... .... ... ... ... 74 
 
 Beaumont v. Greathead ... ... ... ... 198 
 
 Beaumonts' Mortgage Trusts, Re ... ... ... 339 
 
 Becker v. Medd ... ... ... ... ... 97 
 
 Beckett v. Tasker ... ... ... ... ... 19 
 
 Beckett i». Tower Assets Coy. ... ... ... ... 6 
 
 Beckh V. Page ... ... ... ... ... 164 
 
 Beckham v. Drake ... ... ... ... ... 107 
 
 Bedford v. Dawson ... ... ... ... ... 358 
 
 Beer v. Walter ... ... ... ... ... 170 
 
 Behn v. Burness ... ... ... ... 69, 70, 131, 132 
 
 Belasyse v. Burbridge ... ... ... ... 36.3 
 
 Belding v. Read ... ... ... ... ... 127 
 
 Belfast Bank X'. Callan ... ... ... ... 236 
 
 Bell V. Balls ... ... ... ... ... 92, 108 
 
 Bell V. Gardiner ... ... ... ... ... 63 
 
 Bellairs v. Tucker ... ... ... ... ... 73 
 
 Bellamy and Metrop. Board of Works, Re ... ... 324 
 
 Bellamy v. Davey ... ... ... ... ... 192 
 
 Bellamy v. Debenham ... ... 32, 33, 232, 296', 298 
 
 Bellamy v. Sabine ... ... ... ... ... 263 
 
 Bellinger, Re ... ... ... ... ... 338 
 
 Belsize Motor Coy. v. Cox ... ... ... ... 2,154 
 
 Beningfield f. Baxter ... ... ... ... ... SI 
 
 Benjamin v. .\ndrews ... ... ... ... 151 
 
 Bennett, Ex parte ... ... ... ... ... 81
 
 TABLE OF CASES. 
 
 PAGK 
 
 Bennett v. Brumfitt ... ... ... ... ... 56 
 
 Bennett i;. Stone 230, 2:J1 , 23.j, 236, 278 
 
 Bennington v. Metropolitan Board of Worlds ... ... 361 
 
 Bentall z/. Burn ... ... ... ... 12.j, 162, ISl 
 
 Bentinck and L. & N. W. Rly. Coy., Re ... ... 355 
 
 Bentlev and Co., Re ... ... ... ... ... 1<J2 
 
 Bentley v. Craven 98,261,302 
 
 Bentlev v. Mackay ... ... ... ••■ ••• 63 
 
 Bentley v. Rotherham, etc., Local Board ... ... 357 
 
 Bentsen v. Taylor ... ... ... .. ...131,132 
 
 Benwell v. Christie ... ... ... . ... 141 
 
 Berndtson v. Strang ... ... ... l!^3, 185, 186 
 
 Berry v. Gibbons, Ex parte Lee ... ... ... 349 
 
 Berrv v. Young ... ... ... . ... 223 
 
 Berwick v. Horsfall ... ... ... • ••• 44 
 
 Best V. Hamand ... ... ... •• ■• 222 
 
 Bethel! v. Clark ... ... ... ... ...185,186 
 
 Bettesworth and Richer, Re ... ... ... ... 236 
 
 Bettini v. Gage ... ... ... ... ... 167 
 
 Bevan v. Webb ... ... ... ... ... 86 
 
 Bexlev Heath Rly. Coy. v. North ... ... ... 362 
 
 Beyfus and Masters' Contract, Re ... 234,245,249,293 
 
 Bickerton v. Walker ... ... ... ... ... 324 
 
 Bidden :■. Clemens Horst ... ... 149, 15.^, 159, 170, 171 
 
 Bidder v. N. Staffs. Rly. Coy. ... ... ... 362 
 
 Biddle v. Levy ... ... ... ... •. 121 
 
 Biddlecombe v. Bond ... ... ••■ ••• 184 
 
 Bigg V. Whisking ... ... ... ... ... 123, 1(53 
 
 Bill V. Bament ... ... ... ... .• 124 
 
 Billson V. Crofts ... ... ... l!?4 
 
 Binks z'. Rokeby ... ... 218,232,235,262,275,280,304 
 
 Binnie v. Broom ... ... ... ... ... 338 
 
 Birch V. Joy ... ... ... ... ... ••- 279 
 
 Birchall, Re ... ... ... ... ••• 2-56 
 
 Bird f. Broun ... 184,185,189 
 
 Birkbeck Freehold Society, Ex parte ... ... ... 239 
 
 Birm. Banking Coy. v. Ross ... ... ...313,314 
 
 Birmingham Canal Coy. v. Cartwright ... ... 42 
 
 Birm. Land Coy. and Allday, Re ... ... ...294,331 
 
 Birstall and Candle Coy. v. Daniels ... ... ... 155 
 
 Bishop*. Bryant ... ... ••■ ••• ...365,366 
 
 Bissell V. Beard ... ... ••• ••• ••• l"^'^ 
 
 Blackburn v. Mason ... ... ... ••■ ■•• 92 
 
 Blackburn v. Scholes ... ••• •• ■•• l'^8 
 
 Blackburn x-. Smith ... ... ••• 223, 224. 260
 
 TABLE OF CASES. 
 
 Blacklovv V. Laws 
 
 Blagden I*. Bradbear ... 
 
 Blaiberg and Abrahams, Re ... 
 
 Blaiberg v. Keeves 
 
 Bleakley v. Smith 
 
 Blenkinsop v. Clayton 
 
 Bliss V. Collins 
 
 Bloxam v. Sanders ... 
 
 Blumberg v. Life Interests, &c., Corpn. 
 
 Blundell v. Brettargh 
 
 Boardman v. Sill 
 
 Bock V. Gorrissen ... 
 
 Boddington v. Caselli 
 
 Boehm v. Wood 
 
 Bog .Mining Coy. v. Montague 
 
 Bolckow Vaughan v. Compania Minera 
 
 Bold V. Raynor 
 
 Bolton V. Bolton 
 
 Bolton V. Lambert 
 
 Bolton V. L. & Y. Rly. Coy. ... 
 
 Bolton V. London School Board 
 
 Bolton V. Tomlin 
 
 Bonnewell v. Jenkins 
 
 Boorman v. Nash 
 
 Booth V. Pollard 
 
 Booth S. S. Coy. v. Cargo Fleet Coy. ... 
 
 Born V. Turner 
 
 Boiries v. Hutchinson 
 
 Borrowman v. Drayton 
 
 Borrovvman v. Free ... 
 
 Bos V. Helsham 
 
 Bostock V. Nicholson 
 
 Boston Fishing Coy. v. Ansell 
 
 Bosuell V. Kilborn ... 
 
 Boughton V. Jewell ... 
 
 Boulton V. Jones ... ... ' ... 
 
 Bourne v. London, &c., Bldg. Socy. ... 
 
 Bourne v. Seymour ... 
 Bousfield v. Hodges ... 
 Bowdell V. Parsons ... 
 Bower v. Cooper 
 Bowles, Re ... 
 Bowles V. Round 
 Bowman v. Hyland ... 
 Boyers v. Duke 
 Bradley and Cohn v. Ramsay 
 
 P.AUE 
 
 224,225,261 
 
 ...41,45, 51,52, 301 
 
 249,250,325 
 
 68, 71, 77, 216 
 
 49 
 
 ... 124, 126 
 
 243 
 
 157, 175, 178, 196 
 
 323 
 
 ... 51,52 
 
 182 
 
 101 
 
 286 
 
 ...244,251 
 
 ...170,171 
 
 161 
 
 31 
 
 ...313,314 
 ... 28,37 
 ... 175, 188 
 ...248,262 
 
 39 
 
 27 
 
 202 
 
 298 
 
 189 190, 191 
 
 ...344,345 
 
 207 
 
 ... 164, 165 
 
 ...164,165 
 
 53 
 
 ...199,200 
 
 213 
 
 ...201,202 
 
 238 
 
 Ill 
 
 233 
 
 164 
 ...261,349 
 ... 160. 197 
 ... 50,301 
 
 90 
 
 67 
 
 ...226,228 
 
 23 
 
 121
 
 TABLE OF CASES. XXIX 
 
 Brady v. Oastler 
 
 Brady v. Todd 
 
 Bragg V. Cole 
 
 Braithwaite v. Foreign Hardwood Coy. ... l-'il' 
 
 Brandling v. Plummer 
 
 Brandon v. Brandon ... 
 
 Brandt v. Dunlop 
 
 Brandt :'. Heatig 
 
 Brandt v. Lawrence ... 
 
 Brandt v. Morris 
 
 Brassey v. Chalmers .. 
 
 Braybrooke v. Inskip 
 
 Brennan v. Bolton ... 
 
 Brewer and Hankin, Re 
 
 Brewer v. Broadwood 
 
 Brewer v. Brown ... 
 
 Breynton v. L. & N. W. RIy. Coy ... 
 
 Brice v. Banister 
 
 Brickies v. Snell 
 
 Bridgend Gas Coy. v. Dunraven 
 
 Bridger v. Penfold 
 
 Bridges v. Longman ... 
 
 Brighty v. Norton 
 
 Bringloe v. Goodson ... 
 
 Brinsmead v. Harrison 
 
 Bristol Bread Coy. v. Maggs 
 
 Bristol Tramways Coy. v. Fiat Motors 
 
 Britain v. Rossiter ... 
 
 Brit. Col. Sawmill Coy. v. Nettleship ... 
 
 Brit. Equit. Assurance Coy. v. Bailey ... 
 
 Brit. Wagon Coy. v. Lea 
 
 Broad v. Thomas 
 
 Brogden v. Llynfi RIy. Coy. ... 
 
 Brogden v. Metropolitan RIy. Coy. • ... 
 
 Bromet v. Neville 
 
 Bromley v. Jeffreys ... 
 
 Brooke and Fremlin, Re 
 
 Brooke v. Rounthwaite 
 
 Broom v. Phillips 
 
 Broome v. Monck 
 
 Broome v. Speak 
 
 Broomfield v. Williams 
 
 Brown v. Dibbs 
 
 Brown v. Edgington ... .... 
 
 Brown v. Hare 
 Brown v. Lanelev ... 
 
 P.AGli 
 
 
 206 
 
 bt 
 
 s90 
 
 
 163 
 
 , KiG, 
 
 203 
 
 
 216 
 
 
 184 
 
 . 113, 
 
 114 
 
 
 116 
 
 . 157, 
 
 166 
 
 
 lo6 
 
 
 338 
 
 . 244, 
 
 251 
 
 
 60 
 
 
 233 
 
 
 296 
 
 
 216 
 
 
 353 
 
 . 112, 
 
 113 
 
 
 229 
 
 
 356 
 
 
 351 
 
 
 338 
 
 
 160 
 
 
 246 
 
 
 122 
 
 .'^2, 33. 47 
 
 
 139 
 
 
 60 
 
 
 213 
 
 
 69 
 
 ,. 110, 
 
 , 111 
 
 
 100 
 
 
 362 
 
 ., 24 
 
 , 121 
 
 
 29 
 
 
 51 
 
 
 294 
 
 
 233 
 
 
 232 
 
 
 285 
 
 
 53 
 
 . . 313 
 
 ,314 
 
 . . 276 
 
 ,278 
 
 
 210 
 
 
 159 
 
 
 30
 
 XXX 
 
 TABLE OF CASES. 
 
 
 PAGE 
 
 Brown v. Muller 
 
 202,205 
 
 Brown v. Peto 
 
 344 
 
 Brown v. Rly. Commr. 
 
 362 
 
 Brown, Shipley and Co. v. Kough 
 
 113 
 
 Browne v. Flower 
 
 313 
 
 Browne v. London Necropolis Coy. 
 
 283 
 
 Browning v. Wright ... 
 
 316 
 
 Brownlie v. Campbell 
 
 63,71,77 
 
 Brough V. Oddy 
 
 199 
 
 Browell v. Read 
 
 341 
 
 Bruce v. Marquis of Ailesbury 
 
 333 
 
 Bruner v. Moore 
 
 ... 33, 34, 133, 230 
 
 Bryant and Barningham, Re ... 
 
 ...244, 294,295,298 
 
 Bryant v. Busk 
 
 253 
 
 Bryant v. Flight 
 
 53, 100 
 
 Buck V. Robson 
 
 113 
 
 Buckley v. Howell 
 
 339,344 
 
 Buckmaster v. Harrop 
 
 85,285 
 
 Buddie V. Green 
 
 161, 162 
 
 Bull, Ex parte 
 
 365 
 
 Bull V. Hutchens 
 
 263 
 
 Bull 7'. Robinson 
 
 169 
 
 Bunnev v. Povntz 
 
 178,179 
 
 Burdick v. Sewell {see Sewell v. Burdick) 
 
 192,194 
 
 Burghart v. Hall 
 
 15 
 
 Burn "'. Carvalho 
 
 114 
 
 Burnaby v. Equit. Rev. Soc. ... 
 
 251 
 
 Burnell v. Brown 
 
 304 
 
 Burrell, Ex parte 
 
 74 
 
 Burroughs, Lynn and Sexton, Re 
 
 292 
 
 Burroughs v. Oakley 
 
 261,279,306 
 
 Burrows v. Holley 
 
 265 
 
 Burrows v. Lang 
 
 313 
 
 Burrows -'. Smith ... 
 
 170 
 
 Buxton V. Buxton 
 
 337 
 
 Buxton V. Rust 
 
 54 
 
 Bwllfa, etc., Collieries v. Pontypridd Waterworks Coy. ... 361 
 
 Bvrne v. Van Tienhoven 
 
 34,203 
 
 Cable V. Bryant 
 
 314 
 
 Cahn V. Pockett 
 
 148, 154, 182, 194 
 
 Cain V. Moore 
 
 6, 158, 181 
 
 Calaminos v. Dowlais Iron Coy. 
 
 166 
 
 Calcraft v. Roebuck ... 
 
 232,279,304 
 
 Calcutta Coy. v. De Mattos ... 
 
 145, 149, 156, 169
 
 TABLE OF CASES. XXXI 
 
 
 
 
 PAGE 
 
 Caled. Insce. Coy. v. Gilmour... 
 
 
 
 53 
 
 Cal. Rly. Coy. v. Glenboig, &c., Coy. 
 
 
 
 363 
 
 Callow V. Kelson 
 
 
 
 103 
 
 Calton V. Bragg 
 
 
 
 212 
 
 Calverley v. Williams 
 
 
 
 216 
 
 Camberwell Building Soc. v. Holloway 
 
 
 
 216, 244 
 
 Camden v. Batterbury 
 
 
 
 43 
 
 Camidge v. Allenby ... 
 
 
 
 183 
 
 Campbell v. Walker 
 
 
 
 337, 341 
 
 Cannan v. Fowler 
 
 
 
 52 
 
 Cannee v. Spanton ... 
 
 
 
 182 
 
 Carlill V. Carbolic Coy. 
 
 
 
 24 
 
 Carlish v. Salt 
 
 ... 68 
 
 , 77, 
 
 296, 303 
 
 Carlisle Banking Coy. v. Bragg 
 
 
 
 64 
 
 Carlton Co. v. Castle Mail Co. 
 
 
 
 160 
 
 Carmichael's Case ... 
 
 
 
 109 
 
 Carpenter, Re 
 
 
 
 273 
 
 Carr v. Jackson 
 
 
 
 107 
 
 Carr v. Lynch 
 
 
 
 45,48 
 
 Carrington v. Roots ... 
 
 
 
 43, 159 
 
 Carritt and Personal Advance Coy. ... 
 
 
 
 250 
 
 Carrodus v. Sharp 
 
 ...23o. 
 
 236' 
 
 279, 280 
 
 Carter and Kenderdine, Re ... 
 
 
 
 302 
 
 Carter v. Crick 
 
 
 
 137 
 
 Carter v. Silber 
 
 
 
 15 
 
 Carvalho v. Burn 
 
 
 
 286 
 
 Carver and Co., Re ... 
 
 
 
 160 
 
 Carus-Wilson, Re 
 
 
 
 53 
 
 Cary Elwes, Re 
 
 ...275, 
 
 278 
 
 359, 363 
 
 Cassaboglora v. Gibb 
 
 
 
 184 
 
 Castellain v. Preston 
 
 
 
 277 
 
 Castle V. Sworder 
 
 
 
 158, 170 
 
 Castle V. Wilkinson ... 
 
 
 
 305 
 
 Caswell V. Coare 
 
 
 
 211, 213 
 
 Catling V. King 
 
 
 
 49 
 
 Cato V. Thompson ... 
 
 50, 216, 
 
 233 
 
 304, 330 
 
 Caton V. Caton 
 
 
 
 56 
 
 Cave V. Colman 
 
 
 
 131 
 
 Cave V. Hastings 
 
 
 
 45,47 
 
 Cave V. Mackenzie ... 
 
 
 
 88,98 
 
 Cavendish and Arnold, Re 
 
 
 
 294, 339 
 
 Chadburn v. Moore ... 
 
 
 
 85, r3 
 
 Chalmers, Ex parte ... 
 
 175, 176, 
 
 177 
 
 197, 203 
 
 Chalmers v. Paterson 
 
 
 
 170 
 
 Chambers v. Goldthorpe 
 
 
 
 53 
 
 Champion v. Short ... 
 
 
 
 163
 
 TABLE OF CASES. 
 
 PAGE 
 
 Chandos v. Talbot ... ... ... ... ... 242 
 
 Chanter v. Leese 
 
 
 
 166, 168 
 
 Chaplain v. Rogers 
 
 
 124, 125 
 
 158, 171 
 
 Chapman, Re 
 
 
 
 337 
 
 Chapman v. Michaelson 
 
 
 
 16 
 
 Chapman v. Morton ... 
 
 
 
 171 
 
 Chapman v. Partridge 
 
 
 
 91 
 
 Chapman v. Winsor ... 
 
 
 
 100 
 
 Charnley v. Winstanley 
 
 
 
 109 
 
 Chattock V. Muller ... 
 
 
 
 300 
 
 Chawner's Will, Re 
 
 
 
 338 
 
 Chedworth v. Edwards 
 
 
 
 97 
 
 Chichester x-. Cobb ... 
 
 
 
 56 
 
 Chifferiel, Re 
 
 
 
 74 
 
 Chinery v. Mall 
 
 
 157 
 
 196, 197 
 
 Chinnock v. Ely 
 
 
 
 26 
 
 Cholmeley v. Paxton 
 
 
 
 339 
 
 Church V. Brown 
 
 
 
 316 
 
 Church V. Imperial Gas Coy. 
 
 
 
 12 
 
 Chvnoweth's Case 
 
 
 
 75 
 
 City and S. London Rly. Coy. v. St. Mary, etc 
 
 , Parishes 
 
 362 
 
 Civil Service and General Store, Re ... 
 
 
 288 
 
 Clare Hall v. Harding 
 
 
 276 
 
 Clare t. Maynard 
 
 
 
 211 
 
 Clark V. Gaskarth 
 
 
 
 365 
 
 Clark V. Holford 
 
 
 
 366 
 
 Clark V. May 
 
 
 
 306 
 
 Clark I'. Robinson ... 
 
 
 
 29 
 
 Clarke v. Dickson ... 
 
 
 
 168 
 
 Clarke v. Grant 
 
 
 
 39,58 
 
 Clarke v. Hutchins ... 
 
 
 
 169 
 
 Clarke v. King 
 
 
 
 323 
 
 Clarke v. Ramuz 
 
 
 
 274, 275 
 
 Clarke v. Royal Panopticon 
 
 
 
 338 
 
 Clarke v. Westrope ... 
 
 
 3{ 
 
 i, 54, 166 
 
 Clarke v. Wright 
 
 
 
 51, 59 
 
 Clarkson v. \\oodhouse 
 
 
 
 258 
 
 Clav V. Crofts 
 
 
 
 57 
 
 Clay J-. Rufford 
 
 
 
 341 
 
 Clay V. Yates 
 
 
 
 8 
 
 Clayton v. Gregson .".. 
 
 
 
 40 
 
 Clayton v. Le Roy 
 
 
 
 151 
 
 Clemens Horst v. Biddell 
 
 
 
 170, 171 
 
 Clemow V. Geach 
 
 
 
 281 
 
 Clermont v. Tasburgh 
 
 
 
 231 
 
 Clifton V. Cockburn ... 
 
 
 
 62
 
 TABLE OF CASES. 
 
 Clinan v. Cooke 
 
 Clive V. Beaumont 
 
 Clough I'. L. & N. W. RIv. ... 
 
 Clunnes v. Pezzy 
 
 Coaks V. Boswell 
 
 Cobden v. Maynard ... 
 
 Cochran :•. Irlam 
 
 Cochrane v. .Moore ... 
 
 Cochrane r. Willis ... 
 
 Cock, Re; ex parte Rosevear Clay Co. 
 
 Cockerel] v. Cholmeley 
 
 Cockroft, Re 
 
 Coddington "'. Paloologo 
 
 Cogent V. Gibson 
 
 Coggs 7'. Bernard 
 
 Cohen v. Mitchell ... 
 
 Colby V. Gadsden 
 
 Cole v. Gibbons 
 
 Colegrave v. Dias Santos 
 
 Coleman v. Coleman ... 
 
 Coleman v. Riches 
 
 Coles V. Trecothick ... 
 
 Collen V. Gardner ... 
 
 Collier v. Mason 
 
 Colling, Re ... 
 
 Collins V. Castle 
 
 Collins V, Collins 
 
 Collins V. Stimson 
 
 Collyer v. Isaacs 
 
 Colonial and General Gas Coy.^A'e 
 
 Colonial Insc. Co. of N'.Z. v. Adelaide Mar. 
 
 Colyer v. P'inch 
 
 Compton V. Bagley ... 
 
 Congreve v. Evetts ... 
 
 Consol. Coy. v. Curtis 
 
 Consol. Petrol Coy., Re 
 
 Cook V. Corbett 
 
 Cook V. Waugh 
 
 Cooke, Re ... 
 
 Cooke I'. Eshelby 
 
 Cooke V. Jackson 
 
 Cooke V. Oxley 
 
 Cooke and Holland, Re 
 
 Coombes 7'. Wilkes ... 
 
 Coope V. Ridout 
 
 Cooper and Crondace, Re 
 
 .2Ut, 240 
 
 Insc. Co. 31 
 
 XXXIU 
 PAGE 
 
 59 
 
 ... 2C), 306 
 
 74 
 
 130 
 
 ... 77,350 
 
 350 
 
 ... 91, 94 
 
 6 
 
 61, 66, 128 
 
 162, 185, 186 
 
 339 
 
 285 
 
 122, 166 
 
 298 
 
 95 
 
 264 
 
 73 
 
 227 
 
 241 
 
 239 
 
 106 
 
 20, 45, 80, 81 
 90 
 53 
 273 
 331 
 53 
 287, 288 
 127, 128 
 289 
 163, 16o 
 245 
 223, 296 
 127 
 92 
 162 
 366 
 66, 68 
 294 
 103 
 88 
 34 
 226, 244 
 47, 49 
 30 
 317 
 
 138,
 
 XXXIV TABLE OF CASES. 
 
 PAGE 
 
 Cooper, Ex parte {see Re Maclaren) ... ...120, 184, 185,188 
 
 Cooper V. Belsey ... ... ... ... ... 335 
 
 Cooper 2'. Bill " 125,180 
 
 Cooper V. Cartwright ... ... ... ... 306 
 
 Cooper V. Crane ... ... ... ... ... 79 
 
 Cooper V. Emery ... ... ... ... ... 238, 245 
 
 Cooper V. Jarman ... ... ... ... ... 116 
 
 Cooper V. Metro. Board of Works ... ... ... 36'2 
 
 Cooper V. Phibbs ... ... ... ... ■-. 62,66 
 
 Cooper V. Shepherd ... ... ... ... ... 122 
 
 Cooper V. Smith ... ... ... ... ... 55 
 
 Cooper V. Stephenson ... ... ... ... 262 
 
 Cowper-Esse.x v. Acton Local Board ... ... ... 362 
 
 Cooth V. Jackson ... ... ... ... ... 46, 63 
 
 Corder v. Morgan ... ... ... ... ... 10 
 
 Cordinglev v. Cheeseborough ... ... 233, 239, 240 
 
 Cork Distilleries Coy. v. Gt. Southern, etc., Rly. Coy. .. 147, 187 
 
 Cornwall t;. Henson 196,240,295 
 
 Corrington v. Wycombe Rly. Coy. ... ... ... 354 
 
 Cort t;. Ambergate ... ... ... ... ...202,203 
 
 Corv V. Thames Ironworks Coy. ... ... ... 207 
 
 Coslake v. Till 229 
 
 Cote, Ex Parte ... ... ... ... ■•• 35 
 
 Cother •y. Midland Rly. Coy. ... ... ... ... 353 
 
 Cottrell V. Cottrell ... ... ... ... ... 316 
 
 Couturier v. Hastie ... ... ... ••• •■• 66 
 
 Coventry v. L. B. & S. C. Rly. ... ... .• 354 
 
 Coventry v. Gladstone ... ... ... •.■ 191 
 
 Cowasjee v. Thompson ... ... ... ... 162, 180 
 
 Cowen V. Truefitt ... ... ... ... •-. 65 
 
 Cowern v. Nield ... ... ... ••• .. 15 
 
 Cowlev 7'. Watts ... ..1 ... ... •.• 49,50 
 
 Cox and Neve's Contract, Re ... 221, 245, 247, 293, 330 
 
 Cox. V. Cox 325 
 
 Cox* i;. Middleton ... ... ... ... .• 50 
 
 Cox V. Trov ... •• ••• ••• ••• ••• ^^ 
 
 Cox V. Walker ... ... ... ... ••• 211 
 
 Cowles V. Gale ... ••• ... ••• •■• 229 
 
 Crabtree v. Poole ... ... ... ••• ••• 283 
 
 Crane v. London Dock Coy. ... ... ... •.• 152 
 
 Cranston v. Mallow ... ... ... ... -.• 145 
 
 Craven v. Ryder ... ... ... ••• .• 148, 180 
 
 Crawford v. Toogood ... ... ••• .■ 229 
 
 Crawshay v. Eades ... ... ••• ••• ■•• 188
 
 TABLE OF CASES. 
 
 XXXV 
 
 PAGE 
 
 Crigglestone Coal Co., Re ... ... ... ... 348 
 
 Crockford -y. Alexander ... ... ... ...279,280 
 
 Croft i;. L. cS: N. W. Rly. Coy. 362 
 
 Croker v. Morrison ... ... ... ... ... 44 
 
 Crosbv V. Wadsworth ... ... ... ... 43 
 
 Cross' V. Eglin ... ... ... ... ... 163, 164 
 
 Crosse v. Lawrence ... ... ... ... ... 302 
 
 Crossley v. Maycock ... ... ... ... 25, 27, 38 
 
 Crouch V. Credit Fonder ... ... ... ...111,115 
 
 Croughton v. Blake ... ... ... ... ... 253 
 
 Crowder v. Austin ... ... ... ... ... 141 
 
 Crowe V. Ballard ... ... ... ... ... 81 
 
 Crozier v. Auerbach ... ... ... ... ... 170 
 
 Crutchley v. Jemingham ... ... ... ... 219 
 
 Cuddee v. Rutter ... ... ... ... ... 208 
 
 Cudden z;. Tite 277,278 
 
 Cull. Re ... ... ... ... ... ... 254 
 
 Cullen V. Thompson's Trustees ... ... ... 106 
 
 Cullerne v. London and Suburban Building Society ... 97 
 
 Cumberland Banking Coy. v. Maryport Steel Coy ... 349 
 
 Cuming, Re ... ... ... ... ... 291 
 
 Cuming V. Brown ... ... ... ... ... 194 
 
 CundyV Lindsay ... ...64,149,152,153 
 
 Cunliffe v. Harrison ... ... ... ... ... 163 
 
 Curling V. Austin ... ... ... ... ... 222 
 
 Currie v. Anderson ... ... ... ... ... 124, 172 
 
 Currie v. Consol. Kent Collieries ... ... ... 289 
 
 Curtis V. Buckingham ... ... ... ... 281 
 
 Curtis V. Williamson ... ... ... ... ... 104 
 
 Cusack V. Robinson ... ... ... ... ... 123. 178 
 
 Cutts V. Thodey ... ... ... ... ... 235 
 
 Dadswell v. Jacobs ... 
 Dalby v. Pullen 
 Dale V. Hamilton 
 Dames and Wood, Re 
 Danby v. Coutts & Co. 
 Dance v. Goldingham 
 Daniel v. Adams 
 Daniel v. Anderson ... 
 Daniell v. Sinclair 
 Danube Coy. v. Xenos 
 D'Aquila v. Lambert 
 Darbey v. Whittaker 
 Dare v. Tucker 
 
 97 
 
 3.50 
 
 ... 349,3.50 
 
 ... 228,261 
 
 ... 89,254 
 
 340 
 
 93 
 
 239 
 
 62 
 
 203 
 
 183 
 
 53 
 
 238
 
 XXXVl TABLE OF CASES. 
 
 PAGE 
 
 Darlington v. Hamilton ... ... ... ... 22i 
 
 Darton v. Donner ... ... ... ... ... 81 
 
 Dashwood v. Magniac ... ... ... ... 242 
 
 Davenport v. Charsley ... ... ... ... 232 
 
 David t». Sabin ... ... ... ... ...315,316 
 
 Davies v. Sear ... ... ... ... ... 314 
 
 Davies v. Vernon ... ... ... ... ... 182 
 
 Davies v. Wright ... ... ... ... ... 350 
 
 Davis and Cavey, /?e ... ... ... ... 217,221,233 
 
 Davis & Co., Re ... ... ... ... ... 112 
 
 Davis V. Hedges ... ... ... ... ... 210 
 
 Davis V. Maclean ... ... ... ... ... 159 
 
 Davis V. Petrie ... ... ... ... ... 287 
 
 Davis i;. Shepherd ... ... ... ... ...303,311 
 
 Davis t;. Smyth ... ... ... ... ...200,212 
 
 Dawdy, Re ... ... ... ... ... ... 53 
 
 Dawes v. Harness ... ... ... ... ... 74 
 
 Dawes v. Peck ... ... ... ... ... 125, 180 
 
 Dawson v. ColHs ... ... ... ... ... 135 
 
 Dawson v. Ellis ... ... ... ... ... 281 
 
 Dawson v. G.N. and City Rly. ... ...112,282,359,361 
 
 Day & Night Advert. Coy., Re ... ... ... 348 
 
 Day i;. Singleton 295,296 
 
 Day V. Woolwich Equit. Bldg. Socy. ... ... ... 323 
 
 Dayrell v. Hoare ... ... ... ... ... 344 
 
 Dean v. Wilson ... ... ... ... ... 350 
 
 Dearie v. Hall 114 
 
 Debenham v. Mellon ... ... ... •• 109 
 
 Debenham v. .Sawbridge ... ... ... 225,226,228 
 
 De Bernandy v. Harding ... ... ... ... 296 
 
 De Bussche 7>. Alt ... ... ... ... S6, 94, 95, 97 
 
 Deighton and Harris, Re ... ... ... ...225,226 
 
 Delaney v. Wallis ... ... ... ... ... 151 
 
 Delaperelle v. St. Martin-in-the-Fields Vestry ... ... 239 
 
 De Lassalle v. Guildford ... ... ... ... 57, 73 
 
 Delves v. Gray ... ... ... ... ...302,309 
 
 De Montmorency v. Devereux ... ... 227 
 
 Denn d. Manifold v. Diamond ... ... ... 3 
 
 Denne v. Light ... ... ... ... ■•- 302 
 
 Denning v. Henderson ... ... ... ••• 228 
 
 Denny v. Conklin ... ... ... ■•• ••• HI 
 
 Denny v. Hancock ... ... ... ... 67, 216, 303 
 
 Dent V. Bennett ... ... ... ... ... 82 
 
 De Pothonier v. De Mattes ... ... ... ... HI
 
 .TABLE OF CASES. 
 
 XXXVll 
 
 Derby and Kertjusson's Contract, Re ... 
 
 Derby v. Huniber 
 
 De Tastet v. Shaw ... 
 
 Devaynes v. Robinson 
 
 De Waal v. Adler 
 
 Dewar v. Mintoft 
 
 De Wolf V. Lindsell ... 
 
 Dibb V. Walker 
 
 Dibbins v. Dibbins 
 
 Diikin v. Diikin 
 
 Dickinson v. Dodds •• 
 
 Dickson v. Zizinia 
 
 Diinmock v. Hallett ... 
 
 Dini*le v. Hare 
 
 Dinham v. Bradford 
 
 Dinn v. Grant 
 
 Diplock V. Hammond 
 
 Di.xon, Re ... 
 
 Dixon V. London Small Arms Coy. ... 
 
 Dixon V. Pyner 
 
 Dixon V. Yates 
 
 DoFjell V. Hutchinson 
 
 Dobell V. Stevens 
 
 Dodsley v. Varley 
 
 Dodson V. Downey 
 
 Doe V. Brydges 
 
 Doe V. Knight 
 
 Dominion Coal Coy. v. Dominion Iron Coy. 
 
 Domville v. Berrington 
 
 Donnell v. Bennett ... 
 
 Donovan v. Fricker ... 
 
 Douj^an v. .McPherson 
 
 Dougherty v. Oates ... 
 
 Doui^Ias V. Culver well 
 
 Douglas V. Lock 
 
 Downes v. Grazebrook 
 
 Dowson and Jenkins' Contract, Re 
 
 Dowson V. Solomon ... 
 
 Drake, Ex parte 
 
 Drew V. Corpe 
 
 Drewe v. Hanson 
 
 Drinkwater v. Goodwin 
 
 Drummond v. Traoey 
 
 Drummond v. Van Ingen 
 
 Drysdale v. Mace 
 
 •1, 73 
 
 179 
 
 PAGE 
 
 23!), 266 
 
 214 
 
 9 
 
 338 
 
 160 
 
 45, 48 
 
 184 
 
 114 
 
 184 
 
 307 
 
 23, Si 
 
 170 
 
 231, 232 
 
 91, 211 
 
 r>3 
 
 280 
 
 113 
 
 309 
 
 8 
 
 350 
 
 183, 185 
 
 47, 233 
 
 73 
 181 
 273 
 254 
 
 36 
 209 
 349 
 208 
 279 
 
 81 
 
 239 
 
 6 
 
 323 
 
 81, sm 
 
 89 
 
 275, 277 
 122 
 232 
 232 
 91 
 250 
 139 
 246 
 
 138,
 
 XXXVlll TABLE OF CASES, 
 
 Dublin Dist. Coy. v. Doherty 
 
 Du Cane and Nettlefold, Re 
 
 Duddell V. Simpson 
 
 Duke V. Barnett 
 
 Duke of Newcastle's S.E., Re 
 
 Duke of Rutland S.E., Re ... 
 
 Duncan & Co., Re ... 
 
 Duncan v. Dixon 
 
 Duncan v. Topham ... 
 
 Dunkirk Colly. Co. ■:;, Lever ... 
 
 Dunlop V. Grote 
 
 Dunlop V. Higgins ... 
 
 Dunlop V. Lambert ... 
 
 Dunmore v. Alexander 
 
 Dunn V. English 
 
 Dunn V. Flood 
 
 Dupont V. Brit. S. Africa Coy. 
 
 Duppa V. Mayo 
 
 Durham v. Legard ... 
 
 Durham v. Robertson 
 
 Duthie V. Hilton 
 
 Duthy and Jesson's Contract, Re 
 
 Dutton V. Solomonson 
 
 Dyer v. Hargrave 
 
 Dykes v. Blake 
 
 Dyster, Ex parte, Re Moline ... 
 
 Eadie v. Addison 
 
 Eaglesfiield v. Londonderry 
 
 Earl of Devon's S.E., Re 
 
 East Ham v. Aylett ... 
 
 East India Coy. v. Hensley ... 
 
 East London v. Metro. Rly. Coy. 
 
 Eastern Counties Rly. v. Hawkes 
 
 Eastwood V. Ashton 
 
 Ebbw Vale v. Blaina Coy. 
 
 Ebbw Vale v. Macleod 
 
 Ebsworth and Tidy, Re 
 
 Echliff V. Baldwin 
 
 Edan v. Dudfield 
 
 Edgell V. Day 
 
 Edgington v. Fitzmaurice 
 
 EdwardSj Ex parte 
 
 Edwards, Re 
 
 
 PAGE 
 
 
 
 158 
 
 
 
 336 
 
 
 226, 
 
 227 
 222 
 340 
 339 
 212 
 
 14 
 160 
 202 
 200 
 
 34 
 
 125, 168, 
 
 , 169, 
 
 ,180 
 35 
 
 98 
 
 
 337, 
 
 ,340 
 149 
 
 42 
 
 
 233, 
 
 , 305 
 
 
 112, 
 
 ,283 
 129 
 
 238, 
 
 ,252 
 
 ,294 
 147 
 
 278, 
 
 303, 
 
 ,304 
 233 
 
 83, 84, 91 
 
 
 
 38 
 
 
 . 62, 72 
 
 
 
 247 
 
 
 
 236 
 
 
 
 90 
 
 
 297, 
 
 ,363 
 
 298 
 
 
 311, 
 
 ,316 
 133 
 161 
 
 
 .249, 
 
 ,293 
 281 
 
 123, 
 
 124, 
 
 , 125 
 
 220 
 
 74 
 
 359 
 
 157
 
 TABLE OF CASES. XXXIX 
 
 iid wards v. Brewer ... 
 
 Edwards v. Hodding 
 
 Edwards v. Meyrick ... 
 
 Edwards v. Pearson ... 
 
 Edwards-Wood v. Marjoribanks 
 
 Egerton v. Matthews 
 
 Egg V. Blayney 
 
 Egmont V. Smith 
 
 Ehlers v. Kauffman ... 
 
 Eicholz V. Bannister ... 
 
 Elbinger v. Armstrong 
 
 Elbinger v. Clave 
 
 Eley V. Read 
 
 Ellen V. Topp 
 
 Elliott V. Thomas 
 
 Ellis V. Glover 
 
 Ellis V. Goulton 
 
 Ellis V. Hunt 
 
 Ellis V. Kerr 
 
 Ellis V. Rogers 
 
 Ellis V. Thompson 
 
 Elliston V. Reacher ... 
 
 Elmore v. Kingscote ... 
 
 Elmore v. Stone 
 
 Elphick V. Barnes 
 
 El worthy v. Billing ... 
 
 Emery v. Wase 
 
 Emery v. Wells 
 
 Emmerson v. Heelis 
 
 Em[)ress Engineering Coy., Re 
 
 Engell V. Fitch 
 
 Erlanger v. New Sombrero Phosphate Coy. 
 
 Errington v. Metro. Rly. Coy. 
 
 Esdaile v. La Xauze ... 
 
 Esdaile v. Oxenham 
 
 Esdaile v. Stephenson 
 
 Essex V. Daniell 
 
 Ethel and Mitchells and Butler, Re ... 
 
 Evans v. Davies 
 
 Evans v. Jackson 
 
 Evans v. Kymer 
 
 Evans v. Llewellyn 
 
 Evans v. Prothero 
 
 Evans v. Roberts 
 
 Everett v. Remington 
 
 
 I 
 183, 
 
 'AG1-: 
 
 188 
 295 
 
 
 20, »2 
 
 
 51, 
 
 213 
 06 
 55 
 
 237 
 
 237, 274, 
 
 ,306, 
 
 309 
 155 
 213 
 
 
 .207, 
 
 213 
 104 
 346 
 132 
 123 
 150 
 220 
 
 158, 
 
 180, 
 
 185 
 9 
 
 
 . 50, 
 
 244 
 16U 
 330 
 
 
 . 51, 52 
 
 
 
 158 
 
 
 
 5 
 
 
 
 350 
 
 
 
 301 
 
 
 
 131 
 
 36, 84, ';>2 
 
 
 
 9 
 
 
 .228, 
 
 ,296 
 
 
 75, 
 
 ,297 
 
 3.53 
 
 ,362, 
 
 ,363 
 
 89 
 
 237 
 
 280 
 
 
 .241, 
 
 ,322 
 
 315 
 
 347 
 
 337 
 
 102 
 
 82 
 
 45 
 
 43 
 
 331
 
 xl 
 
 TABLE OF CASES. 
 
 
 PAGE 
 
 Eyre, Re 
 
 52 
 
 Eyton V. Denbigh, etc., Rly. Coy. ... 
 
 355 
 
 Falcke v. Gray 
 
 200 
 
 Falk V. Fletcher 
 
 148 
 
 Falkner v. Somerset and Dorset Rly. Coy. ... ... 353, 358 
 
 Falmouth v. Thomas 
 
 43 
 
 Farina v. Home 
 
 125, 158, 162 
 
 Farmeloe v. Bain 
 
 192 
 
 Farmer v. Dean 
 
 
 Farmer v. Waterloo & City Rly. Co. ... 
 
 353,358 
 
 Farnham Brewery v. Hunt ... 
 
 229 
 
 Farquharson v. King 
 
 103, 150 
 
 Farr v. Ward 
 
 200,212 
 
 Farrar v. Farrar, Ltd. 
 
 11, 82, 345 
 
 Farrar v. Lacy 
 
 98 
 
 Farrow v. Wilson 
 
 116 
 
 Fawcett and Holmes, Re 
 
 232 
 
 Fawkes v. Lamb 
 
 91 
 
 Feise v. Wray 
 
 183,184 
 
 Felthouse v. Bindley 
 
 23,24 
 
 Fenton v. Browne 
 
 232 
 
 Fen wick v. Macdonald 
 
 141 
 
 Ferguson v. Wilson ... 
 
 11 
 
 Ferrers v. Robins 
 
 98 
 
 Field V. Lelean 
 
 182 
 
 Filby V. Hounsell 
 
 29,47 
 
 Fildes V. Hooker 
 
 235 
 
 Firth V. Mid. Rly. Coy. 
 
 38,51 
 
 Fisher and Grazebrook, Re ... 
 
 335 
 
 Fisher v. Smith 
 
 101 
 
 Fishmonger's Coy. v. Robertson 
 
 12 
 
 Fitt V. Cassanet 
 
 196,197 
 
 Fitzmaurice v. Bayley 
 
 96 
 
 Fleet V. Murton 
 
 92, 107 
 
 Fletcher 7;. L. & Y. Rly. Coy 
 
 279 
 
 Fletcher v. Tayleur ... 
 
 207 
 
 Flight V. Bolland 
 
 ... 16, 298 
 
 Flight V. Booth 
 
 71, 232, 233, 239, 296 
 
 Flint V. Brandon 
 
 298 
 
 Flint V. Woodin 
 
 84,227 
 
 Flower v. Hartopp ... 
 
 222 
 
 Flower v. L. B. & S. C. Rly. ... 
 
 353 
 
 Fludver v. Cocker 
 
 262, 279
 
 TABLE OF CASES. 
 
 xli 
 
 
 r.AGK 
 
 F'liiieau V. Thoinhill 
 
 244,296 
 
 Foakes v. Beer 
 
 36 
 
 Foljambe v. Smith Brewery Coy. 
 
 2.58 
 
 Ford and Hill, Re 
 
 ... 2()(J, 293 
 
 Ford V. Baynton 
 
 176 
 
 Ford V. Cotesworth 
 
 160 
 
 Ford V. Leetham 
 
 161 
 
 Ford V. Yates 
 
 182 
 
 Forrer v. Nash 
 
 244,296,298 
 
 Forrest v. Aramayo ... 
 
 159 
 
 Forteblow v. Shirley ... 
 
 280 
 
 Fortescue v. Lostwithiel, &c., Rly. 
 
 298 
 
 Forth V. Norfolk 
 
 290 
 
 Fortune v. Lingham 
 
 213 
 
 Foster v. Bates 
 
 96 
 
 Foster v. Deacon 
 
 274 
 
 Foster v. Mackinnon 
 
 tjl 
 
 Foster V. Manch. &c., Rly. Coy. 
 
 356 
 
 Foster v. Leonard 
 
 242 
 
 Forsyth t;. Manchester Corp. ... 
 
 106 
 
 Fotherby v. Metro. Rly. Coy. ... 
 
 359 
 
 Fothergill v. Rowland 
 
 ...208,209 
 
 Fowle V. Freeman 
 
 26,37,299 
 
 Fowler v. McTaggart or Kymer 
 
 189 
 
 Fox :'. Chester 
 
 276 
 
 Fox V. Mackreth 
 
 81 
 
 Fox V. Wright 
 
 80 
 
 Fragano v. Long 
 
 149 
 
 Francis, Ex parte 
 
 Is4 
 
 Franklin v. Brownlow 
 
 288 
 
 Frazer v. Marsh 
 
 189 
 
 Freeman v. Fairlie ... 
 
 109 
 
 Freer v. Rimmer 
 
 218 
 
 Freme v. Wright 
 
 50,222 
 
 Fremo's Contract, Re 
 
 307 
 
 Frend v. Buckley 
 
 221,257 
 
 Frewen x;. • Hays 
 
 51 
 
 Frith and Osborne, Re 
 
 338 
 
 Frost V. Aylesbury Dairy Coy. 
 
 139 
 
 Frost V. Knight 
 
 ...203,200 
 
 Fry V. Fry ... 
 
 337 
 
 Fry V. Lane 
 
 SO, f52 
 
 Fuller V. Abrahams ... 
 
 78 
 
 Fuller V. Fames 
 
 100 
 
 Furness v. Meek 
 
 B3
 
 xlii TABLE OF CASES, 
 
 
 
 P.AG'a 
 
 Furtado v. Lumley 
 
 
 219, 220 
 
 Fyson v. Kitton 
 
 
 45 
 
 Gadd V. Houghton ... 
 
 
 107 
 
 Gainsford v. Carroll 
 
 
 202, 204 
 
 Galloway v. London Corp. ... 
 
 
 353 
 
 Gambrell v. Falmouth 
 
 
 365 
 
 Games v. Bonnor 
 
 
 246, 247 
 
 Garbarron v. Kreeft ... 
 
 
 168 
 
 Gardom v. Lee 
 
 
 226 
 
 Gardner, Re ... 
 
 
 350 
 
 Garey v. Pike 
 
 
 199 
 
 Garnett v. Acton 
 
 
 285 
 
 Garrick v. Camden ... 
 
 
 277 
 
 Gedye v. Montrose ... 
 
 
 235, 274 
 
 Gee V. Pearse 
 
 219, 
 
 230, 240 
 
 Geldard v. Randall ... 
 
 
 350 
 
 Gen. Fin. Coy. v. Liberator Socy, ... 
 
 
 307 
 
 Gen. Meat Assoc, v. Bouffler 
 
 
 89 
 
 George V. Thomas ... 
 
 
 266 
 
 Gerard and Beecham, Re 
 
 
 . 293, 355 
 
 Gerard and L. X. W. Rly., Re 
 
 
 363 
 
 Gibbins v. N.E. Metro. Asylum Dist. 
 
 
 23 
 
 Gibbs V. Gray 
 
 
 164 
 
 Gibson v. Carruthers 
 
 
 . 157, 185 
 
 Gibson v. Holland 
 
 
 45 
 
 Gibson v. Jeyes 
 
 
 82 
 
 Gibson v. Woollard ... 
 
 
 351 
 
 Gilbey v. Rush 
 
 
 334 
 
 Giles V. Spencer 
 
 
 365 
 
 Gillespie v. Cheney ... 
 
 ... 
 
 139 
 
 Gillett V. Abbott 
 
 
 246 
 
 Gilliat V. Gilliat 
 
 
 . 78,142 
 
 Gillmann v. Carbutt ... 
 
 
 193 
 
 Gilmour v. Suffle 
 
 
 144 
 
 Gladstone, Re 
 
 
 344 
 
 Glass V. Richardson ... 
 
 ♦ 
 
 320 
 
 Glegg V. Bromley 
 
 
 194 
 
 Glenton to Haden, Re 
 
 
 . 261, 293 
 
 Gloag and Miller's Contract, Re 
 
 ... 50, 301 
 
 , 304, 319 
 
 Gluckstein v. Barnes 
 
 
 98 
 
 Glvn i'. Thomas 
 
 ... 
 
 366 
 
 Godts V. Rose 
 
 161 
 
 , 181, 182 
 
 Godwin v. Francis 
 
 
 . 45, 56 
 
 Godwin v. Schweppes 
 
 ... 
 
 . 313, 314
 
 TABLE OF CASES. 
 
 xlui 
 
 Gomery v. Bond 
 
 Gompertz v. Denton ... 
 
 Goodall V. Skelton 
 
 Goode V. Harrison 
 
 Goold V. Birm. Banking Coy. 
 
 Gordon-Cumming v. I^ouldsworth 
 
 Gordon v. Street 
 
 Gordon v. Swan 
 
 Gordon v. Whitehuuse 
 
 Gordon v. Woodford 
 
 Goren, Re Ex parte Cutts 
 
 Gorton v. Mclntosii ... 
 
 Gosbell V. Archer 
 
 Gosling V. Gaskell 
 
 Gosling V. Woolf 
 
 Gougii V. \^'ood 
 
 Gourlay v. Somerset 
 
 Graham v. Campbell 
 
 Graham v. Jackson ... 
 
 Graham v. Johnson ... 
 
 Graham v. Musson ... 
 
 Graham v. Penfold ... 
 
 Grant v. Fletcher 
 
 Graves v. Weld 
 
 Gray and Metrop. Rly. Coy., Re 
 
 Gray v. Fowler 
 
 Gray v. Gutteridgc ... 
 
 Gray v. Haig 
 
 Gray v. Smith 
 
 Gray v. Stanion 
 
 G.E. Rly. V. Low's Trustee ... 
 
 G.N. Rlv. Cov. and Sanderson, Re 
 
 G.N. Rly. V.' Witham 
 
 G.W. Rlv. V. Carpalla Clav Cov. 
 
 G.W. Rlv. V. Fisher ... ' ... ' 
 
 G.W. Rly. V. May ... 
 
 G.W. Rly. V. Swindon 
 
 Greaves v. Ashlin 
 
 Greaves v. Tofield 
 
 Greaves v. Wilson 
 
 Grebert-Borgnis v. Nugent ... 
 
 Greenhalgh v. Brindley 
 
 Green v. Bailey 
 
 Green v. Baverstock ... 
 
 Green v. Sevin 
 
 Greenslade v. Dare ... 
 
 r.VGIi 
 
 213 
 
 210 
 
 126 
 
 15 
 
 222 
 
 311 
 
 64 
 
 212 
 
 52 
 
 242 
 
 301 
 
 137 
 
 ... 45,296 
 
 «5 
 
 245 
 ... 150, 365 
 
 51,52 
 
 200 
 
 164 
 
 115 
 
 88 
 
 258 
 
 31,46,105 
 43 
 
 292 
 
 224,226,227,249,260 
 295 
 
 98 
 
 ... 45,229 
 218,235,244 
 
 175 
 
 226,293,307 
 ... 23, 3i 
 
 363 
 
 38,316 
 
 354 
 
 353, 355. .358 
 
 ..160,173, 182, 197,204, 206 
 
 264 
 
 226, 227, 22S 
 
 ... 207, 213 
 
 304 
 
 253 
 
 78 
 
 229 
 
 259, 276, .324
 
 xliv 
 
 TABLE OF CASES. 
 
 Gregg V. Wells 
 
 Gregory v. Mighell ... 
 
 Gregson v. Ruck 
 
 Gresham Assoc. Coy. v. Crowther 
 
 Greville v. Hemingway 
 
 Grice v. Richardson ... 
 
 Griffin v. Scott 
 
 Griffiths V. Hatchard 
 
 Griffiths V. Jones 
 
 Griffiths V. Perry 
 
 Grigg V. Nat. Guard. Assce. ... 
 
 Grimoldby v. Wells ... 
 
 Groom v. Booth 
 
 Gudgeon v. Besset 
 
 Guerreiro v. Peile 
 
 Guest V. Homfray 
 
 Guest V. Poole, etc., Rly. Coy. 
 
 Guest V. Smythe 
 
 Gunn V. Bolckow, Vaughan 
 
 Gunnis v. Erhart 
 
 Gunston v. East Gloucestershire Rly. Coy. 
 
 Gunter v. Halsey 
 
 Gurney v. Behrend ... 
 
 Gurr V. Cuthbert 
 
 .17S, 19; 
 
 PAGE 
 150 
 
 52 
 
 31 
 115 
 318 
 178 
 367 
 243 
 
 69 
 
 202, 204 
 
 ISl 
 
 171, 172 
 
 222 
 
 63 
 
 91 
 
 224 
 
 357 
 
 350 
 
 178, 192 
 
 40 
 364 
 
 o9 
 194 
 182 
 
 Haddington v. Huson 
 
 Hadley v. Baxendale 
 
 Hadley v. London Bank of Scotland 
 
 Haedicke and Lipski's Contract, Re . 
 
 Haig V. Wallace 
 
 Hale, Re 
 
 Halifax Banking Coy. and Ward, Re .. 
 
 Halifax Commercial Bank and Wood, 
 
 Halkett v. Dudley 
 
 Hall Dare, Re 
 
 Hall V. Bromley 
 
 Hall V. Burnell' 
 
 Hall V. Byron 
 
 Hall V. Conder 
 
 Hall V. Franck 
 
 Hall V. Warren 
 
 Hallas V. Robin^ion 
 
 Hallen v. Runder 
 
 Hallett's Estate, Re 
 
 345 
 199,202,297 
 
 281 
 
 217, 221, 222, 261, 293, 
 294, 303, 306f 
 162 
 85 
 301 
 Re ... ... 253 
 
 ...280,296,298,299 
 348 
 320 
 213, 219, 295 
 312 
 198 
 325 
 299 
 128, 281 
 44 
 297
 
 TABLE OF CASES. 
 
 xlv 
 
 Halsey v. Grant ... * 
 Hambro v. Burnand ... 
 Hanier v. Sharp 
 Hamilton v. Magill ... 
 Hamlyn v. Wood 
 Hammond v. Anderson 
 Hammond v. Messenger 
 Hammond and Waterton, Re 
 Hammonds v. Barclay 
 Hampshire v. Wilkins 
 Hands v. Burton 
 Hankey v. Smith 
 Hannaford v. .Sims ... 
 Hanson v. Armitage ... 
 Hanson v. Meyer 
 Harding v. Hall 
 Harding v. Harding ... 
 Harding v. Metro. Rly. Coy. ... 
 
 Hardman v. Booth 
 
 Hardman v. Child ... 
 
 Hardwick, Re 
 
 Hardy v. Fothergill ... 
 
 Hare and O'More's Contract, Re 
 
 Hargrave v. Hargrave 
 
 Hargreave v. Spink ... 
 
 Hargreaves and Thompson, Re 
 
 Harington v. Hoggart 
 
 Harland and Wolff v. Burstali 
 
 Harman and Uxbridge Rly. Coy., Re 
 
 Harman v. Anderson 
 
 Harman v. Reeve 
 
 Harmer v. Cornelius ... . ... 
 
 Harnett v. Yielding ... 
 
 Harnor v. Groves 
 
 Har[)er v. Godsell 
 
 Harper v. Hayes 
 
 Harper v. Williams ... 
 
 Harrington v. Churchward 
 
 Harris's Case 
 
 Harris v. Llovd 
 
 Harris v. Nickerson ... 
 
 Harris v. Pepperell ... 
 
 Harris v. Rickett 
 
 Harrison and Micks, Lambert & Coy., Re 
 
 Harrison v. Allen 
 
 PAGE 
 
 . . . 235, 304 
 
 102 
 
 ... 85,93 
 
 213 
 
 133 
 
 179 
 
 111 
 
 53 
 
 ... 101, 107 
 
 303 
 
 4 
 
 199 
 
 O') 
 
 125 
 
 144 
 
 368 
 
 113 
 
 359 
 
 ... 64,153 
 
 225, 315, 319 
 
 6 
 
 286 
 
 67, 294, 295 
 
 263. 
 
 151 
 
 ... 292, 294 
 
 219 
 
 163 
 
 249, 250, 325 
 
 181 
 
 ... 57,123 
 
 95 
 
 302 
 
 ... 40,171 
 
 89 
 
 ... 336,341 
 
 212 
 
 102 
 
 34 
 
 155 
 
 ... 23, 140 
 
 63 
 
 ... 38,39 
 
 165 
 
 212
 
 xlvi 
 
 TABLE OF CASES, 
 
 
 PAGE 
 
 Harrison v. Guest ... ... ... 
 
 SO 
 
 Harrison v. Holland and Hannen 
 
 295 
 
 Harrison v. Luke 
 
 4 
 
 Harrison v. Seymour 
 
 Jt9 
 
 Harry v. Davey 
 
 10 
 
 Harsant v. Blaine 
 
 98 
 
 Hart V. Bush 
 
 125 
 
 Hart V. Hart 
 
 253 
 
 Hart V. Mills 
 
 ...121,163 
 
 Hartley t». Hitchcock ... 
 
 173,177,181 
 
 Hartop V. Hoare 
 
 152 
 
 Harvey v. Barnard's Inn 
 
 ... 28,38 
 
 Harvey v. Facey 
 
 23,56 
 
 Harvey v. Johnston ... 
 
 22 
 
 Harwood v. Bland 
 
 306 
 
 Haslam and Hier-Evans, Re ... 
 
 82 
 
 Hastie v. Couturier ... 
 
 128 
 
 Hatten v. Russell 
 
 226, 296, 335 
 
 Havves v. Armstrong 
 
 52 
 
 Hawes v. Watson 
 
 182 
 
 Hawker v. Dunn 
 
 184 
 
 Hawkes v. Eastern Counties Rly. Coy. 
 
 302 
 
 Hawkesley v. Outram 
 
 89,301 
 
 Hawkesworth v. Chaff ey 
 
 28,38 
 
 Hawkins v. Walrond 
 
 368 
 
 Haycraft v. Creasey ... 
 
 73 
 
 Hay ford v. Criddle ... 
 
 217 
 
 Haygarth v. ^^■earing 
 
 ... 77,80 
 
 Haynes v. Haynes ... 
 
 ...359,360 
 
 Hayton v. Irwin 
 
 105 
 
 Hay ward v. Daniel ... 
 
 130 
 
 Hay ward v. Scougall 
 
 164 
 
 Haywood v. Cope 
 
 67, 298, 302 
 
 Head v. Baldrey 
 
 123 
 
 Head v. Tattersall 
 
 145,211,213 
 
 Head's Trustees and Macdonald, Re ... 
 
 ...244,296 
 
 Heard v. Pilley 
 
 88 
 
 Heard v. Wadham ... 
 
 235 
 
 Heath v. Crealock 
 
 249 
 
 Heathcote and Rawson, Re ... 
 
 320 
 
 Heilbutt V. Hickson ... 
 
 .144, 170, 171, 210 
 
 Helby v. Matthews ... 
 
 2 
 
 Henderson v. Astwood 
 
 3 
 
 Henderson v. Williams 
 
 150
 
 TABLE OF CASES. xlvii 
 
 PAGE 
 
 Henkel v. Pape ... ... ... ... •• 'M 
 
 Henkle 7;. Roy. Exch. Assce. ... ... ... ... bS 
 
 Henry v. Lowson ... ... ... ... ■ 109 
 
 Henthorn !». Frazer ... ... ... ... ;J3, 34, 35 
 
 Heppenstall v. Hose ... ... ... ... ... 228 
 
 Herbert v. Salisbury, ivc, Rly. ... ... ... 230 
 
 Hetling and Merton, Re ... ... ... ...231,324 
 
 Hewison v. Guthrie ... ... ... ... ■• 1S2 
 
 Hewitt V. Nanson ... ... ... ... ... 350 
 
 Hewson v. L. S. W. Rly. Coy. ... ... ... 360 
 
 Hexter z». Pearce ... ... ... ... ...233,297 
 
 Heywood ^. Mallalieu ... ... 216,217,239,240,303 
 
 Heyworth 7'. Hutchinson ... ... ... ...135,210 
 
 Hey worth v. Knight ... ... ... ... ■■ 40 
 
 Hibblewhite v. McMorine ... ... ... ... 150 
 
 Hick V. Raymond ... ... ... ... ••• 160 
 
 Hickman z-.'Haynes ... ... ... ... 161,204,206 
 
 Hicks V. Hankin ... ... ... ... .- 90 
 
 Hiern v. Mill 258 
 
 Higgin V. Pumpherstone Oil Coy. ... ... ... 161 
 
 Higgins and Hitchman's Contract, Re ... 227,294,354 
 
 Higgins and Percival, Re ... ... ... ... 255 
 
 Higgins V. Burton ... ... ... ... ... 153 
 
 Higgins V. Sargent ... ... ... ... ... 212 
 
 Higginson v. Clowes ... ... ... ...216,241 
 
 Highett and Bird's Contract, Re ...235, 236, 255, 275, 294,302 
 
 Hill V. Buckley 73 
 
 Hill V. Mid. Rly. Coy. ... ... ... ... 3-58 
 
 Hill V. Perrott ... ... ... ... ... 121 
 
 Hill V. Smith 151,152 
 
 Hills V. Street ... ... ... ... ... 367 
 
 Hinder;. Whitehouse ... ... ... ... 91,196 
 
 Hinder;. Liddell ... ... ... ... ...205,207 
 
 Hindle v. Brown ... ... ... ... ... 74 
 
 Hipwell V. Knight ... ... ... ... ... 224 
 
 Hitchin v. Groom ... ... ... ... ... 65 
 
 Hitchman v. Walton ... ... ... ... 241 
 
 Hoadly i». McLaine 55,121,130 
 
 Hoare v. Dresser ... ... ... ... ... 209 
 
 Hoare v. Kingsbury ... ... ... ... ... 59 
 
 Hobbs V. Mid. Rly. Coy. ... ... ... ... 354 
 
 Hobson 7;. Bell ... ... ... ... 222,224,253 
 
 Hochster v. De la Tour ... ... ... ... 203 
 
 Hockey v. Western ... ... ... ... ... 325 
 
 Hoddell V. Pugh ... ... ... ... ... 284
 
 xlviii 
 
 TABLE OF CASES, 
 
 Hodgkinson v. Kelly 
 
 Hodgson V. Johnson ... 
 
 Hodgson V. Loy 
 
 Hodson and Howe, Re 
 
 Hodson V. Heuland ... 
 
 Holland, Re . ... 
 
 Holliwell V. Seacombe 
 
 Holloway v. Hill 
 
 Holloway v. Yorke ... 
 
 Holmes, Re ... 
 
 Holmes v. Blogg 
 
 Holophane, Ltd. v. Heseltine 
 
 Holroyd z'. Marshall ... 
 
 Holt V. Holt 
 
 Honck V. Muller 
 
 Hone V. Gakstatter ... 
 
 Honeyman v. Marryat 
 
 Hood V. Mackinnon ... 
 
 Hoole V. Smith 
 
 Hooper v. Bourne 
 
 Hooper v. Smart 
 
 Hopkins v. Hemsworth 
 
 Hopkins v. Tanqueray 
 
 Hopkinson v. Chamberlain 
 
 Hope V. Bayley 
 
 Hope V. Liddell 
 
 Hope V. Walter 
 
 Hopper, Re ... 
 
 Hore V. Becker 
 
 Hore V. Milner 
 
 Horlock V. Smith 
 
 Horncastle v. Farran 
 
 Home V. Wingfield ... 
 
 Horner v. Williams ... 
 
 Horniblow v. .Shirley 
 
 Hc)rrocks v. Rigby 
 
 Horsey v. Graham 
 
 Horsfall v. Thomas ... 
 
 Horsford v. Webster ... 
 
 Hoskins v. Holland ... 
 
 Hotham v. East India Coy. 
 
 Houghton V. Banckart 
 
 Houghton V. .Matthews 
 
 Houlder Bros. v. Pub. Works Commr 
 
 Houlditch V. Desanges 
 
 PAGE 
 
 105 
 
 ... 42,57 
 
 ... 183,185 
 
 345 
 
 60 
 
 44, 45, 300 
 
 228 
 
 330 
 
 287 
 
 114 
 
 16 
 
 95 
 
 127 
 
 285 
 
 ... 165,167 
 
 295 
 
 26 
 
 61 
 
 343 
 
 ... 354, 356 
 
 ...234,305 
 
 115 
 
 131 
 
 222, 238, 265 
 
 127 
 
 325 
 
 302 
 
 53 
 
 61 
 
 !%• 
 
 253 
 
 182 
 
 246 
 
 234 
 
 235 
 
 ... 234, 305 
 
 42 
 
 67 
 
 365 
 
 111 
 
 182 
 
 53 
 
 ... 91,101 
 
 162 
 
 180
 
 TABLE OF CASES. 
 
 XllX 
 
 
 
 
 PAOE 
 
 Household Fire Insce. Coy. v. Grant ... 
 
 
 
 34, 3o 
 
 Hove V. Gakstatten ... 
 
 
 
 295 
 
 Hovil V. Pack 
 
 
 
 96 
 
 Howard v. Bailie 
 
 
 
 89 
 
 Howard v. Castle 
 
 
 
 141 
 
 Howard v. Patent Ivory Coy. ... 
 
 
 
 9 
 
 Howard v. Sheward ... 
 
 
 
 102 
 
 Howatson v. Webb ... 
 
 
 
 64 
 
 Howcroft V. Laycock 
 
 
 
 137 
 
 Howcroft V. Perkins ... 
 
 
 
 137 
 
 Howe V. Lichfield 
 
 
 
 258 
 
 Howe V. Palmer 
 
 
 
 170 
 
 Howe V. Smith ... ... 126, 
 
 173, 196 
 
 219 
 
 240, 295 
 
 Howell V. Coupland ... 
 
 
 
 130 
 
 Hoy V. Smithies 
 
 
 
 227 
 
 Hoyle, Re ... 
 
 
 
 . 45, 56 
 
 Hubert v. Treherne ... 
 
 
 
 56 
 
 Hucklesby and Atkinson's Contract, Re 
 
 219, 
 
 244 
 
 295, 296 
 
 Hudd V. Ravenor 
 
 
 
 365 
 
 Huddersfield Bank v. Lister ... 
 
 
 
 128 
 
 Huddersfield Corporation and Jacomb, R 
 
 L' 
 
 
 353 
 
 Hudson V. Buck 
 
 
 
 38 
 
 Hudson V. Temple ... 
 
 
 
 229 
 
 Hatches and Ashley, Re 
 
 293, 
 
 306 
 
 313, 314 
 
 Hughes V. Graeme ... 
 
 
 
 209 
 
 Hughes V. Jones 
 
 
 
 233 
 
 Hughes V. Morris 
 
 
 
 59 
 
 Hughes V. Parker 
 
 
 
 50, 301 
 
 Hughes V. Pump House Hotel 
 
 
 
 112 
 
 Hughes V. Wynne 
 
 
 
 253 
 
 Humberston, Re 
 
 
 
 195 
 
 Humble v. Hunter ... 
 
 
 
 110 
 
 Hume V. Pocock 
 
 
 
 73, 222 
 
 Hunt V. Hecht 
 
 
 
 125 
 
 Hunt ■:■. Ho()|)tM- 
 
 
 
 155 
 
 Hunt V. Luck 
 
 
 
 266 
 
 Hunt V. Wimbledon Local Board 
 
 
 
 12 
 
 Hunter, Ex parte 
 
 
 
 196 
 
 Hunter v. Walters ... 
 
 
 
 64, 324 
 
 Hurrell v. Bullard ... 
 
 
 
 96 
 
 Hurrell v. Liltlejohn ... 
 
 
 
 334 
 
 Hussey v. Horne-Payne 
 
 ... 28, 
 
 32, ^ 
 
 17, 55. 58 
 
 Hutchings v. Nunes ... 
 
 
 
 184. 190 
 
 Hutchinson v. Bowker 
 
 
 
 30,31 
 
 Hutchinson v. Eaton 
 
 
 
 107
 
 TABLE OF CASES. 
 
 Hutchinson v. Tatham 
 
 Hutton V. Bullock 
 
 H3de V. Price 
 
 Hyde v. Wrench 
 
 Hydraulic Eng. Coy. v. McHaffie 
 
 PAGE 
 
 i07 
 104 
 279 
 31 
 160 
 
 Icely V. Green 
 
 Imp. Bank v. L. & St. Kath. Dock Coy. 
 
 Imp. Loan Coy. v. Stone 
 
 Ind, Coope & Coy., Re 
 
 Inglis V. Buttery 
 
 Ingram v. Thorpe 
 
 Inl. Rev. Commrs. v. Glasgow & S. W. Rly. ... 
 
 Inl. Rev. Commrs. v. Maple ... 
 
 International Tea Stores v. Hobbs 
 
 Ireland i;. Livingstone ... ... 88,89,94,162 
 
 Irvine v. Kirkpatrick 
 
 Irwin, Re 
 
 Isaacs V. Evans 
 
 Isaacs V. Towell 
 
 Isherwood v. Whitmore 
 
 Islington Union v. Brentnall ... 
 
 241 
 184 
 
 \7 
 
 114 
 
 38,39 
 
 73 
 
 362 
 
 4 
 
 314 
 
 165, 184 
 
 72 
 315 
 
 60 
 227 
 170 
 
 69 
 
 Jackson ti Co. v. Napper 
 
 Jackson and Haden, Re 
 
 Jackson and Oakshott, Re 
 
 Jackson v. Lowe 
 
 Jackson v. Nickoll 
 
 Jackson v. Oglander ... 
 
 Jackson v. Rotax Motor Coy. ... 
 
 Jackson v. Union Mar. Ins. Coy. 
 
 Jacobs V. Latour 
 
 Jacobs V. Morris 
 
 Jacobs V. Phillips 
 
 Jacobs V. Revell 
 
 Jacob V. Scott 
 
 Jacomb v. Turner 
 
 Jamal v. Moolla Dawood Coy 
 
 James, Ex parte 
 
 James v. Griffin 
 
 James v. Kerr 
 
 James v. Smith 
 
 Jared v. Clements 
 
 87 
 
 226,228,293 
 
 ...293,306 
 
 ... 47,54 
 
 ...185, 188, 189, 191 
 
 46 
 
 ...163, 164, 165, 166 
 
 160 
 
 ...180,181 
 
 102 
 
 253 
 
 68, 219, 220, 232, 239, 247, 296, 304 
 
 139 
 
 249 
 
 202 
 
 ... 20,81 
 
 ...182,185,186,188 
 
 82 
 
 88 
 
 249
 
 TABLE OF CASES. 1i 
 
 PACK 
 
 Jarrett v. Hunter ... ... ... ... ... 48 
 
 Jarvis v. Jarvis ... ... ... ... ... 44 
 
 Jeffs i;. Day Hi 
 
 Jenkyns v. Usborne ... ... ... ... ... 184 
 
 Jennings v. Broughton ... ... ... ... 73 
 
 Jersey v. Briton Ferry Dock Coy. ... ... ... 355 
 
 Jewry v. Bush ... ... ... ... ... 53 
 
 Jobson V. Eppenheim ... ... ... ... 186, 187 
 
 Johnson and lustin, Re ... ... ... ...251,294 
 
 Johnson v. Dodgson ... ... ... ... 45, 125 
 
 Johnson v. Edgware Rly. Coy. ... ... ... 361 
 
 Johnson 7). L. & Y. Rly. Coy. ... ... ... ... 147 
 
 Johnson !». Raylton ... ... ... ... ... HO 
 
 Johnson v. Smiley ... ... ... ... ... 222 
 
 Johnston v. Boyes ... ... ... ... ... 23,323 
 
 Johnstone i>. Milling ... ... ... ... ...203,206 
 
 Jolly V. Handcock ... ... ... ... ... 253 
 
 Jones & Co. 1-. Tankerviile ... ... ... 58, 159, 20S, 297 
 
 Jones, Re (1855) 1 Jur. N.S. 817 351 
 
 Jones, Re (1897) 2 Ch. 190 ... ... ... ... 115 
 
 ■Jones V. Barnett ... ... ... ... ... 348 
 
 Jones V. Carter ... ... ... ... ... Ill 
 
 Jones V. Cliff ... ... ... ... ... 182 
 
 Jones V. Clifford ... ... ... ... ... 66 
 
 Jones V. Daniel ... ... ... ... ... 28, 33 
 
 Jones V. Dowle ... ... ... ... ... 195 
 
 Jones V. Flint ... ... ... ... ... 12 
 
 Jones V. Gardiner ... ... ... ... ... 230 
 
 Jones -y. Gibbons ... ... ... ... 160,173,204 
 
 Jones V. Gordon ... ... ... ... ... 194 
 
 Jones V. Humphries ... ... ... ... ... L12 
 
 Jones V. Jones ... ... ... ... ... 179 
 
 Jones V. Joyner ... ... ... ... ... 45, 56 
 
 Jones V. Just ... ... ... ... ... 138 
 
 Jones V. Lewis ... ... ... ... ... 307 
 
 Jones V. Mudd ... ... ... ... ... 280 
 
 Jones V. Nanney ... ... ... ... -.• 218 
 
 Jones V. Padgett ... ... ... ... ... 139 
 
 Jones V. Pearle ... ... ... ... ... 181 
 
 Jones V. Price ... ... ... ... ... 224 
 
 Jones V. Rimmer ... ... ... ... ...216,304 
 
 Jones V. S. Staffs. Rly. ... ... ... ... 354 
 
 Jones V. .Stanley ... ... ... ... ... 282 
 
 Jones V. Tarleton ... ... ... ... ... 182 
 
 Jones V. Thurloe ... ... ... ... ... 181
 
 TABLE OF CASES. 
 
 
 PAGE 
 
 Jones V. Watts 
 
 245 
 
 Jordan v. Norton 
 
 31 
 
 Joseph V. Lyons 
 
 127,128,281 
 
 Josling V. Irvine 
 
 204,205 
 
 Joyce V. Swann 
 
 143 
 
 Judd and Poland, Re 
 
 322,337 
 
 Judd V. Green 
 
 80 
 
 Judge and Sheridan, Re 
 
 220,244 
 
 Jupp, Re 
 
 309 
 
 Jureidini v. Nat. Brit. Insur. Coy. 
 
 132 
 
 Keates v. Lyon 
 
 330 
 
 Keeble and Stilwell's Brick Coy., Re 
 
 230,280 
 
 Keen v. Mear 
 
 93 
 
 Keith V. Burrows 
 
 6 
 
 Kelly V. Rogers 
 
 66 
 
 Kelly V. Selwyn 
 
 114 
 
 Kelly V. Solari 
 
 61 
 
 Kelly V. Webster 
 
 42 
 
 Kelner v. Baxter 
 
 9,97 
 
 Kelsey v. Dodd 
 
 9 
 
 Kemeys v. Proctor 
 
 36 
 
 Kemp V. Baerselman... 
 
 112,113 
 
 Kemp V. Falk 
 
 179, 183, 188, 190, 191, 194 
 
 Kemp V. Ismay 
 
 190 
 
 Kemp V. S. E. Rly. ... 
 
 353 
 
 Kempson v. Boyle ... 
 
 31, 105 
 
 Kendall v. Marshall ... 
 
 182, 183, 185, 186, 187 
 
 Kennedy v. De Traflford 
 
 345 
 
 Kennedy v. Green 
 
 259,324 
 
 Kennedy v. Panama Mail Coy. 
 
 64, 70 
 
 Kent V. Freehold Land Coy. ... 
 
 71,73 
 
 Kenworthy v. Schofield 
 
 41 
 
 Kerby v. Harding 
 
 365 
 
 Kerford v. Mendel 
 
 182 
 
 Kerr v. Pawson 
 
 232 
 
 Kershaw, Re 
 
 285 
 
 Kershaw v. Kershaw 
 
 230 
 
 Keyse v. Heydon 
 
 ... 222, 251 
 
 Keyse v. Powell 
 
 217 
 
 Khan v. Duche 
 
 170, 210 
 
 Kharaskhoma .Syndicate, Re 
 
 52 
 
 Kibble v. Gough 
 
 124 
 
 Kidd and Gibbon's Contract, Re 
 
 258 
 
 Kidd V. Home 
 
 98
 
 TABLE OF CASES. 
 
 liii 
 
 Kidderminster v. Hardwick 
 Kidner v. Keith 
 
 Kiell, Re 
 
 Kilpin V. Ratley 
 King V. Chamberlain 
 King V. England 
 King V. Howell 
 King V. Wilson 
 Kingdom v. Cox 
 Kingston-upon-Hull v. Fetch 
 Kinloch v. Craig 
 Kirby V. G. W. Rly. ... 
 Kirk V. Evans 
 Kitchen -'. Palmer ... 
 Kitson V. Hardwick ... 
 Knapman, Re 
 Knatchbull v. Grueber 
 Knott V. Cottee 
 Konig V. Brandt 
 
 Lacey, Ex parte 
 
 Lackington v. Atherton 
 
 Lagunas Nitrate Coy. v. Lagunas Syndicate 
 
 Laing v. Fidgeon 
 
 Laird v. Pirn 
 
 Lake v. Dean 
 
 Lakeman v. Mountstephen ... 
 
 Lamare v. Dixon 
 
 Lamond v. Davall 
 
 Lancaster v. De Trafford 
 
 Lander and Bagley, Re 
 
 Langport v. Tiler 
 
 Langstaff v. Nicholson 
 
 Langton v. Higgins ... 
 
 Latham v. Chartered Bank of India 
 
 Latter v. Braddell ... 
 
 Lavery and Kirk, Re 
 
 Lavery v. Pursell ... 
 
 Lawrence v. Knowles 
 
 Lawrie v. Lees 
 
 Leach v. Mullett 
 
 Leask v. Scott 
 
 Leather Cloth Coy. v. Hieronimus 
 
 Lee, Re, Ex parte Neville 
 
 Lee V. Bayes 
 
 
 PAGE 
 
 ... 12, 87 
 
 
 37 
 
 
 179 
 
 
 6, 181 
 
 
 292 
 
 
 367, 368 
 
 
 98 
 
 
 229, 304 
 
 
 163, 165 
 
 
 26 
 
 
 . 182, 184 
 
 
 87 
 
 
 100 
 
 
 226 
 
 
 3 
 
 
 115 
 
 
 262, 304 
 
 
 349, 350 
 
 
 148 
 
 20, SI, 299 
 
 ... 162, 181 
 
 71 
 
 130 
 
 ...201, 297 
 
 216 
 
 107 
 
 ... 74,298 
 
 196, 197, 200, 241 
 
 300 
 
 303 
 
 196 
 
 51 
 
 127 
 
 183 
 
 79 
 
 293 
 
 44 
 
 157 
 
 245 
 
 232 
 
 194 
 
 ... 54, 156 
 
 97 
 
 
 150, 151
 
 liv 
 
 TABLE OF CASES. 
 
 
 PAGE 
 
 Lee V. Gaskell 
 
 44 
 
 Lee V. Griffin 
 
 8 
 
 Lee t'. Munn 
 
 219 
 
 Lee V. Risdon 
 
 44 
 
 Lee V. Sankey 
 
 325 
 
 Lee V. Soames 
 
 ...296,297 
 
 Leech v. Schvveder ... 
 
 297 
 
 Leeming v. Snaith ... 
 
 164 
 
 Lees V. Nuttall 
 
 98 
 
 Leggett V. Barrett ... 
 
 39,318 
 
 Lehmann and Walker, Re 
 
 238 
 
 Leigh V. Paterson ... 
 
 204 
 
 Leppington v. Freeman 
 
 276,278,279 
 
 Leroux v. Brown 
 
 58 
 
 Leslie v. Thompson ... 
 
 68 
 
 Lester v. Foxcroft ... 
 
 60 
 
 Lesturgeon v. Martin 
 
 261 
 
 Lever v. Koffler 
 
 56 
 
 L'Evesque de Worcester's Case 
 
 152 
 
 Levita's Case 
 
 102 
 
 Levy V. Green 
 
 24, 164 
 
 Levy V. Stogdon 
 
 286 
 
 Lewis V. Branthwaite 
 
 217 
 
 Lewis V. Brass 
 
 27 
 
 Lewis V. Clay 
 
 64 
 
 Lewis V. Lyster 
 
 183 
 
 Lewis V. South Wales Rly. Coy. 
 
 235 
 
 Le viand and Taylor's Contract, Re 
 
 261,234,237,293 
 
 Lichfield Union v. Greene ... 
 
 183 
 
 Lickbarrow v. Mason 
 
 183, 193 
 
 Lillywhite v. Devereux 
 
 124,125 
 
 Limpus V. G. O. Coy. 
 
 102 
 
 Lindsay and Forder, Re 
 
 293 
 
 Lindsay Petrol Coy. v. Hurd 
 
 71, 73, 75 
 
 Litt V. Cowley 
 
 191 
 
 Livesey v. Harding ... 
 
 350 
 
 Llewellyn v. Jersey ... 
 
 311 
 
 Lloyd V. Bankes 
 
 114 
 
 Lloyd V. Grace 
 
 106 
 
 Lloyd V. Nowell 
 
 28,301 
 
 Lloyds' Bank and Lillington, Re 
 
 247,303,304 
 
 Lloyds' Bank v. Pearson 
 
 115 
 
 Locke V. Lomas 
 
 325 
 
 Lockett V. Nicklin 
 
 57, 182 
 
 Lockhart v. Reilly ... 
 
 184 
 
 Lockie and Craggs, Re 
 
 161
 
 TABLE OF CASES. 
 
 Iv 
 
 Lodge V. Lyseley 
 
 Loftus V. Roberts 
 
 Logan V. Le Mesurier 
 
 Lomas and Co. v. Banff 
 
 London Assoc, of Shipowners v. London, &:c 
 
 London Bridge Acts, Re 
 
 London Corp. and Tubb, Ke ... 
 
 London Freehold Coy. v. Suflfield 
 
 London J. S. Bank v. Simmons 
 
 Long V. Millar 
 
 Long V. Preston 
 
 Lonsdale v. Gaskarth 
 
 Lord V. Lord 
 
 Lord V. Stephens 
 
 Love, Re 
 
 Love and Stewart v. Instone and Co. 
 
 Lovelock V. Franklyn 
 
 Lovesey v. Palmer ... 
 
 Low V. Low 
 
 Lowes V. Lush 
 
 Lucas V. James 
 
 Lucas V. Tarleton 
 
 Luddv's Trustee v. Peard 
 
 Ludlow V. Charlton ... 
 
 Luff V. Lord 
 
 Lukey v. Higgs 
 
 Lumley v. Ravenscroft 
 
 Lyell V. Kennedy 
 
 Lyle V. Richards 
 
 Lynch v. Dalzell 
 
 Lyons v. De Pass 
 
 Lyon V. Weldon 
 
 Lysaght v. Edwards ... ... 274, 
 
 Lyttelton Times Coy. v. Warners 
 
 L. B. & S. C. RIv. V. Truman 
 
 L. C. D. Rlv. V. S. R. Rlv ... 
 
 L. & N. W.Rlv. Cov. V. Bartlett ... 
 
 L. S. W. Rly. V. Blackmore ... 
 
 L. S. \V. Rlv. V. Gomm 
 
 Macclesfield v. Davis ... 
 
 Macey v. Metro. Board of Works 
 
 Macfie V. Callander ... 
 
 Mackay v. Dick 
 
 Mackenzie v. Childers 
 
 
 PAGE 
 
 
 290 
 
 
 63 
 
 
 ... 144, 145 
 
 
 164 
 
 ., Committee 3o3 
 
 
 317 
 
 
 317 
 
 
 37 
 
 
 194 
 
 
 39, 46, 48 
 
 
 213 
 
 ... 
 
 52 
 
 
 301 
 
 
 275 
 
 
 350 
 
 
 30 
 
 
 281 
 
 
 107 
 
 
 227 
 
 
 287 
 
 
 ... 56, 68 
 
 
 367 
 
 
 81 
 
 
 ... 12, 36 
 
 
 81 
 
 
 306 
 
 
 15, 233, 298 
 
 
 184 
 
 
 40 
 
 
 277 
 
 
 151 
 
 
 ...366,367 
 
 275, 27G, 
 
 21^, 280, 284 
 
 
 13» 
 
 
 353 
 
 
 212 
 
 
 187 
 
 
 354 
 
 
 354 
 
 
 209 
 
 
 358 
 
 
 351 
 
 
 ... 132, 199 
 
 
 331
 
 Ivi TABLE OF CASES. 
 
 PAGE 
 
 Mackenzie v. Coulson ... ... ... ... 63 
 
 Mackreth 2>. Symons ... ... ... ... ... 280 
 
 Maclean -J. Dunn ... ... ... ... ...196,201 
 
 Macleay v. Tait ... ... ... ... ... 76 
 
 Maddison v. Alderson ... ... ... 57, 58, 59 
 
 Madeley v. Booth ... ... ... ... ... 232 
 
 McBlaine v. Cross ... ... ... ... ... 56 
 
 M'Carthy v. Capital and Counties Bank ... ... 287 
 
 M'Combie v. Davis ... ... ... ... ... 103 
 
 M'Culloch V. Gregory ... ... ... ... 227, 260 
 
 M'Donald v. Hanson ... ... ... ... 341 
 
 M'Namara v. Williams ... ... ... ... 278 
 
 M 'Queen v. Farquhar ... ... ... ... 304 
 
 McConnell v. Murphy ... ... ... ... 164 
 
 McEwan v. Smith ... ... ... ... ... 182 
 
 McGruther v. Pitcher ... ... ... .. 9 
 
 McKenzie v. Hesketh ... ... ... ...232,305 
 
 McLay and Co. v. Perry and Co. ... ... ... 164 
 
 McLaren, Re 179, 184 
 
 McMahon v. Field ... ... ... ... ... 213 
 
 McManus v. Fortescue ... ... ... 23,24,97,141 
 
 McMurray v. Spicer ... ... ... ... ... 49 
 
 McManus t;. Cooke ... ... ... ... ... 42,00 
 
 McPherson v. Temiskamming Coy. ... ... ... 155 
 
 Magdalen Hospital v. Knotts ... ... ... ... 257 
 
 Magee v. Atkinson ... ... ... ... ... 107 
 
 Magee v. Lavell ... ... ... ... ... 65 
 
 Maggenis ^». Fallon ... ... ... ... 261,276,278 
 
 Mahoney v. Davoren ... ... ... ... ... 250 
 
 Main's Case ... ... ... ... ... 281 
 
 Malins v. Freeman ... ... ... ... ... 195 
 
 Manchester Brewery v. Coombs ... ... ... 283 
 
 M. S. and L. Rly. Cov. v. No. Central Wagon Coy. .. 6 
 
 Mandel t;. Steel .." 200,210 
 
 Manders v. Williams ... ... ... ... 2, 145 
 
 Mangles v. Dixon ... ... ... ... ... 115 
 
 Manning, Ex parte ... ... ... ... -. 276 
 
 Mansell v. Mansell ... ... ... ... .- 281 
 
 March, Re 309 
 
 Market Overt, Case of ... ... ... ... 151 
 
 Markham v. Paget ... ... ... ... ... 9 
 
 Markwick v. Hardingham ... ... ... ■■ 7, 85 
 
 Marlborough, Re ... ... ... ... ... 58 
 
 Marlborough v. .Sartoris ... ... ■■■ • • 335 
 
 Marler Estates Ltd. v. Marler ... ... ... 99 
 
 Marner v. Banks ... ... ... ••• ■•• 152
 
 TABLE OF CASES. 
 
 Ivii 
 
 Marquis of Ailesbury, Re 
 
 Marquis of Ailesbury and Iveagh, Re 
 
 Marriott v. Anchor Rev. Coy. 
 
 Marsden v. Moore ... 
 
 Marsh and Granville, Re ... ... ... 221, 
 
 Marsh v. Jelf 
 
 Marsh v. Jones 
 
 Marsh v. Joseph 
 
 Marsh v. Keating 
 
 Marshall, Re 
 
 Marshall v. Broadhurst 
 
 Marshall v. Green ... ... ... 42, 43, 124 
 
 Marshall v. Poole ... 
 
 Marston v. Phillips ... 
 
 Marten v. Whale 
 
 Martin v. Pycroft 
 
 Martindale t;. Smith ... ... ... 144,181,196 
 
 Martineau v. Kitching 
 
 Martini v. Coles ... ... "... 
 
 Marvin v. Wallace ... 
 
 Massey v. Nanney 
 
 Matsoukis v. Priestman 
 
 Mawson v. Fletcher ... 
 
 May V. Belleville 
 
 Mav V. Lane ... 
 
 May -y. Piatt ... ... ... 39,50,63,65 
 
 May field v. Wadsley ... 
 
 Measures Bros. v. Measures ... 
 
 Meath v. Winchester 
 
 Mechelen v. Wallace ... 
 
 Mediana, The 
 
 Meehan v. Bow 
 
 Meehan v. N. E. Rly. Coy. ... 
 
 Mellor V. Japing ... ... • 
 
 Mellor V. W'almesley ... 
 Menzies v. Menzies ... 
 Mercer v. Liverpool Rly. 
 
 Merchants' Banking Cov. v. Phoenix Steel Cov ... 176, 
 
 ' 184, 186, 
 Meredith v. May 
 Mersey Steel Coy. v. Naylor ... ... 163,165, 167, 
 
 Mess V. Duffus 
 Messing v. Kemble ... 
 Mestaer v. Gillespie ... 
 Metcalfe, Re 
 
 PAGE 
 
 334 
 336 
 340 
 235 
 
 248, 293 
 
 93 
 
 52 
 
 96 
 
 150 
 
 333 
 
 116 
 
 159, 181 
 
 200, 212 
 
 122 
 
 2, 154 
 
 57 
 
 197, 200 
 
 148 
 
 91 
 
 158 
 
 3 
 
 161 
 
 226, 228 
 
 323 
 
 113 
 
 316, 317 
 
 57 
 
 132 
 
 253 
 
 57 
 
 212 
 
 172 
 
 188, 191 
 
 170 
 
 40 
 
 63 
 
 359, 362 
 
 178, 183 
 
 192, 203 
 
 125 
 
 168, 296 
 
 203 
 
 366' 
 
 68 
 
 63
 
 Iviii TABLE OF CASES. 
 
 
 PAGE 
 
 Metro. Rly and Cosh, Re 
 
 ...294, 352, 354,358 
 
 Metro. Rly. v. Fowler 
 
 353 
 
 Michael v. Hart 
 
 198 
 
 Midgley v. Coppock ... 
 
 236, 237 
 
 Miles, Ex parte 
 
 184, 187 
 
 Miles V. Furber 
 
 365 
 
 Miles V. Gorton 
 
 177, 178, 179, 183 
 
 Miles V. Jarvis 
 
 347 
 
 Milford, &c., Coy. •:;. Mowatt ... 
 
 307 
 
 Milgate v. Keble ... 
 
 175 
 
 Millar's Karri Coy. v. Weddel 
 
 167 
 
 Miller v. Borner 
 
 164 
 
 Miller v. Sharp 
 
 60 
 
 Milligan v. Cooke 
 
 234 
 
 Mills"' Trusts, Re 
 
 284 
 
 Mills V. Ball 
 
 185, 186, 190 
 
 Milnes v. Gery 
 
 38,51,52,53 
 
 Minchin v. Nance 
 
 275 
 
 Minett v. Forester 
 
 109 
 
 Mirabita v. Imperial Ottoman Bank ... 
 
 148 
 
 Miramichi, The 
 
 148 
 
 Mitchell V. Holmes ... 
 
 254 
 
 Mitchell V. Xeale 
 
 323 
 
 Moakes v. Nicholson 
 
 182 
 
 Mody V. Gregson 
 
 ...136,138,139, 140 
 
 Mogridge v. Clap 
 
 335 
 
 Moir V. Marten 
 
 100 
 
 Moline, Re: Ex parte Dyster 
 
 83,84,91 
 
 Moiling and Co. v. Dean 
 
 171 
 
 Molyneux v. Hawtrey 
 
 303 
 
 Molyneux v. Richard 
 
 293 
 
 Monckton and Gilzean, Re 
 
 306,315,319 
 
 Moneypenny v. Hartland 
 
 96 
 
 Monforts v. Marsden ... 
 
 51 
 
 Monighetti v. Wandsworth 
 
 311 
 
 Monro v. Taylor 
 
 50, 276, 278, 300, 303 
 
 Montague, Re 
 
 275 
 
 Montaignac v. Shitta 
 
 102 
 
 Montreal Assurance Coy. v. M'Gillivray 
 
 87, 88 
 
 Montreal, etc., Co. v. Sedgwick 
 
 129 
 
 Montreal Gas Coy. v. Vasey ... 
 
 23 
 
 Moody V. Corbett 
 
 354 
 
 Moody and Yates, Re 
 
 249,255,294 
 
 Moor V. Roberts 
 
 297 
 
 Moorcock, The 
 
 133 
 
 Moore v. Campbell ... 
 
 55,164
 
 TABLE OF CASES. 
 
 lix 
 
 
 
 
 
 PAGE 
 
 Moore v. Pyrke 
 
 
 
 
 36S 
 
 Moore v. Shelley 
 
 
 
 
 160 
 
 Moore v. Singer Manufacturing Coy. 
 
 
 
 
 3,367 
 
 Mordaunt Bros. v. Brit. Oil and Cake 
 
 Mills .. 
 
 
 
 192 
 
 Morgan v. Bain 
 
 
 
 175, 
 
 197, 203 
 
 Morgan v. Gath 
 
 
 
 
 163 
 
 Morgan v. Hill 
 
 
 
 
 184 
 
 Morgan v. Holford ... 
 
 
 
 
 299 
 
 Morgan v. Lariviere ... 
 
 .. 
 
 
 
 199 
 
 Morgan v. Milman ... 
 
 
 
 51, 52, 53, 241 
 
 Morgan :•. Worthington 
 
 
 
 
 45 
 
 Morley v. Cook 
 
 224, 
 
 226 
 
 227, 
 
 251, 260 
 
 Morley 7-. Hay 
 
 
 
 
 182 
 
 Morris v. Cleasby 
 
 
 
 
 100 
 
 Morris v. Kearsley ... 
 
 
 
 
 251 
 
 Morrison v. Clarkson 
 
 
 
 
 172 
 
 Morrison v. Gray 
 
 
 
 
 183 
 
 Morrison v. Robertson 
 
 .. 
 
 
 
 153 
 
 Morritt, Re ... 
 
 
 
 
 6 
 
 Mortimer -'. Bell 
 
 
 
 
 78, 142 
 
 Mortimer v. McCallan 
 
 
 
 
 107 
 
 Mortlock V. Buller 
 
 233, 
 
 302 
 
 305, 
 
 337, 341 
 
 Morton v. Lamb 
 
 .. 
 
 
 
 157, 175 
 
 Morton v. Tibbett ... 
 
 123, 
 
 124, 
 
 125, 
 
 171, 172 
 
 Moss V. Sweet 
 
 
 
 
 5 
 
 Mostyn v. Mostyn 
 
 
 
 
 348 
 
 Moulton V. Edmonds 
 
 
 
 
 245, 253 
 
 Moxhay v. Inderwick 
 
 
 
 
 318 
 
 Moxon V. Payne 
 
 
 
 
 82 
 
 Moyce 7'. Newington ... 
 
 
 
 
 152 
 
 Mullens v. Miller 
 
 
 
 67, 73, 106 
 
 Mulliner z». Florence ... 
 
 
 
 
 182 
 
 MuUings V. Trinder ... 
 
 
 
 246, 
 
 303, 341 
 
 Munday v. Asprev ... 
 
 
 
 
 54 
 
 Mundy and Roper, Re 
 
 
 
 294^ 
 
 333, 336 
 
 Murgatroyd v. Wright 
 
 
 
 
 155 
 
 Murk -'. Huskisson ... 
 
 ,. 
 
 
 
 230 
 
 Murray v. Mann 
 
 
 
 
 106 
 
 Mussen v. Price 
 
 
 
 
 200 
 
 Myers v. Watson 
 
 
 
 
 74 
 
 Napier v. Williams ... 
 
 
 
 
 9 
 
 Nash V. Dix ... 
 
 
 
 
 64 
 
 Nash V. Inman 
 
 
 
 
 16 
 
 Nash V. Wooderson ... 
 
 
 
 
 233
 
 Ix TABLE OF CASES. 
 
 PAGE 
 
 Nat. Bank v. Hampson ... ... ... ... 150 
 
 Nat. Bol. Nav. Coy. v. Wilson ... ... 102 
 
 Nat. Prov. Bank, Ex parte ... ... ... ... 49 
 
 Nat. Prov. Bank and Marsh, Re ... ... 221,222,293 
 
 Nat. Soc. &c. V. Gibbs ... ... ... ... 317 
 
 Nathan, Re ... ... ... ... ... ... 178 
 
 Naylor v. Goodall ... * ... ... ... ... 49 
 
 Naylor and Spendla, Re ... ... ... ... 320 
 
 Neale and Drew, i?e ... ... ... ...233,234 
 
 Neate v. Ball ... ... ... ... ... 5 
 
 Neill V. Whitworth ... ... ... ... ... 162 
 
 Nelson v. Brj'dges ... ... ... ... ...276,278 
 
 Nelthorpe v. Holgate ... ... ... ...228,234 
 
 Nene Valley Commissioners v. Dunkley ... 47, 49, 50 
 
 Neville, Ex parte; re Lee ... ... ... ... 97 
 
 Neville, Re; Ex parte White ... ... ... 7, 8, 85 
 
 New V. Swain ... ... ... ... ... 178 
 
 Newbigging v. Adam ... ... ... ... ... 71 
 
 Newcombe v. De Roos ... ... ... ... 33,35 
 
 Newell V. Radford ... ... ... ... ... 48 
 
 Newman v. Maxwell ... ... ... ... 277 
 
 Newman v. Newman ... ... ... ... 114 
 
 Newman v. Thurston ... ... ... ... 184, 185 
 
 Newsom v. Thornton ... ... ... 91, 184, 185 
 
 Nichol V. Bestwick ... ... ... ... ... 206 
 
 Nicholl V. Ashton ... ... ... ... ... 129 
 
 Nicholls V. Le Feuvre ... ... ... ... 190 
 
 NichoUs V. White ... ... ... ... ... 125 
 
 Nichols and Van Joel's Contract, Re ... ... 292, 303 
 
 Nicholson v. Bradfield ... ... ... 164, 165, 166 
 
 Nicholson v. Knapp ... ... ... ... ... 272 
 
 Nicol V. Hennessey ... ... ... ... ... 120 
 
 Nisbett and Potts' Contract, Re ... ... 221,247,330 
 
 Nix V. Fitzwiiliam ... ... ... ... ... 368 
 
 Nixon V. Verry ... ... ... ... ... 184 
 
 Noble zi. Edwardes ... ... ... ... 223,240,297 
 
 Noel V. Weston ... ... ... ... ... 323 
 
 Nokes V. Kilmorey ... ... ... ... ... 223 
 
 Norfolk V. Worthy ... ... ... ... ... 231 
 
 Norman v. Phillips ... ... ... ... ... 172 
 
 North V. Percival ... ... ... ... 29, 38, 231 
 
 North V. Loomes ... ... .-.. ... ... 122 
 
 N. B. Rly. V. Budhill, &c., Coy. ... ... ... 363 
 
 N. B. Rly. t;. Todd ... ... ... ... ... 353 
 
 Northcote v. Doughty ... ... ... ... 15 
 
 N. E. Rly V. Reg. ... ... ... ... ... 106
 
 TABLE OF CASES. 
 
 Ixi' 
 
 Norton v. Davison ... 
 Nottingham Brick Coy. v. Butler 
 
 Nouaille v. Flight 
 Noyes v. Patterson ... 
 Nugent V. Nugent 
 Nutt V. Easton 
 
 PAGE 
 
 126 
 
 66. 77, 217, 221, 23U, 240, 24-3, 
 
 330, 331 
 
 235 
 
 24S 
 
 350 
 
 98,345 
 
 V. Love and Stewart 
 
 Oakbank Oil Coy 
 
 Oakden v. Pike 
 
 Oakes v. Turquand ... 
 
 Oceanic Steam Nav. Coy. v. 
 
 Ockenden v. Henley ... 
 
 Offord V. Davies 
 
 Ogdens, Ltd. v. Weinberg 
 
 Ogg V. Shuter 
 
 Ogilvie 2>. Foljambe ... 
 
 Ogle V. Vane 
 
 Okell V. Smith 
 
 Oliver v. Court 
 
 Oliver v. Hunting 
 
 Onslow V. Londesborough 
 
 Oppenheimer v. Attenborough 
 
 Oppenheimer v. Eraser 
 
 Orange and Wright, Re 
 
 Ord V. Noel 
 
 Oriental S. S. Coy.* v. Tylor 
 
 Orme v. Wright 
 
 Ormes v. Beadel 
 
 Ormrod v. Huth 
 
 O'Rorke v. Bolingbroke 
 
 Osbaldiston v. Askew 
 
 Osborne v. Foreman 
 
 Osborne v. Harvey ... 
 
 Overend, Gurney and Co. v. 
 
 Owen V. Davies 
 
 Owen V. Legh 
 
 Owen V. Thomas 
 
 Oxendale v. Wetherell 
 
 Sutherberry 
 
 Gibb 
 
 30 
 
 ... 224, 225 
 74 
 
 341 
 
 241 
 
 34 
 
 113 
 
 148, 159, 196 
 
 40, 45, 46, 49, 56, 244, 301 
 
 156, 161, 205, 206 
 
 172 
 
 336.337,341 
 
 ... 39,48 
 
 ...238,242 
 
 104 
 
 ...104,131 
 
 294 
 
 ...302, 336,337,341 
 
 133 
 
 336 
 
 79 
 
 51 
 
 80 
 
 304 
 
 349 
 
 279 
 
 97 
 
 291 
 
 367 
 
 49,55,300 
 
 ...121.163, 165, 166 
 
 Padwick v. Hurst 
 Padwick -•. Stanley 
 Pagani, Re ... 
 Page V. Adam 
 Page V. Cooper 
 
 102 
 102 
 291 
 226 
 333
 
 Ixii TABLE OF CASES, 
 
 
 
 PAGE 
 
 Page V. Mid. Rly. Coy. 
 
 31o, 316,317 
 
 Page V. Morgan 
 
 123 
 
 Page V. Newman 
 
 200 
 
 Page V. Norfolk 
 
 28 
 
 Paget V. Marshall ... 
 
 63, 65 
 
 Paget V. Wilkinson ... 
 
 51 
 
 Paine v. Meller 
 
 273, 276, 277, 278, 282 
 
 Palairet 7;. Carew 
 
 337 
 
 Palliser v. Gurney 
 
 19 
 
 Palmer v. Goren 
 
 277 
 
 Palmer v. Johnson ... 
 
 39 
 
 Palmer v. Temple 
 
 ...219,240 
 
 Palmerston v. Turner 
 
 231 
 
 Panoutsos v. Raymond Hadley Corp. ... 
 
 132, 167 
 
 Pape V. Westacott 
 
 365 
 
 Parchim, The 
 
 148, 159 
 
 Parfitt V. Jepson 
 
 141 
 
 Pariente v. Lubbock 
 
 90,95 
 
 Parker v. Crisp and Co. 
 
 126 
 
 Parker v. Gossage ... 
 
 184 
 
 Parker v. McKenna ... 
 
 81,98 
 
 Parker v. Palmer 
 
 171 
 
 Parker v. Tootal 
 
 303 
 
 Parker v. Wallis 
 
 124, 172 
 
 Parkinson v. Lee 
 
 138 
 
 Parr v. Lovegrove ... ... ...244 
 
 245, 246, 248, 253, 280 
 
 Parton v. Crofts 
 
 46 
 
 Patching v. Bull 
 
 307 
 
 Patman v. Harland ... 
 
 330 
 
 Patten v. Thompson ... 
 
 183, 194 
 
 Pattenden v. Hobson 
 
 337 
 
 Pattison v. Robinson ... 
 
 161 
 
 Pattle V. Hornibrook 
 
 40,63 
 
 Paul V. Dod ... 
 
 200 
 
 Pauley and London Prov. Bank, Re ... 
 
 284,342 
 
 Paxton V. Newton 
 
 298 
 
 Payne v. Cave 
 
 34,35,141 
 
 Payne v. Cork Coy. Ltd. 
 
 341 
 
 Payne v. Drewe 
 
 155 
 
 Pavne v. Fern 
 
 150 
 
 Payne v. Leconfield ... 
 
 92 
 
 Pearce v. Bastable's Trustee ... 
 
 286 
 
 Pearce v. Gardner 
 
 47,337 
 
 Pearce v. Watts 
 
 300 
 
 Pearson v. Benson ... 
 
 20 
 
 Pearson v. Dawson ... 
 
 192
 
 TABLE OF CASES. 
 
 Ixiii 
 
 
 
 
 PAGE 
 
 Pearson v. Pearson ... 
 
 
 
 59 
 
 Pearson v. Scott 
 
 
 
 106 
 
 Pease v. Courtney 
 
 
 
 331 
 
 Pechel V. Fowler 
 
 
 
 33d 
 
 Peck and London School Board, Re ... 
 
 
 313,314 
 
 Pedder i-. Hunt 
 
 
 
 247 
 
 Peek V. Gurney 
 
 
 
 76 
 
 Peer v. Humphrey ... 
 
 
 
 149 
 
 Pegg V. Wisden 
 
 
 
 223 
 
 Pegler v. White 
 
 
 
 258 
 
 Peirce v. Corf 
 
 
 
 55 
 
 Pelly and Jacob, Re ... 
 
 
 
 231 
 
 Pember v. .Mathers ... 
 
 
 
 59 
 
 Pemberton v. Barnes 
 
 
 
 349 
 
 Pemsel and Wilson v. Tucker 
 
 
 233 
 
 Penn v. Baltimore ... 
 
 
 
 29S 
 
 Penny v. Penny 
 
 
 
 361 
 
 Perfect v. Lane 
 
 
 
 73 
 
 Perham v. Kempster 
 
 
 
 282 
 
 Perkins v. Bell 
 
 
 170, 
 
 171, 172 
 
 Perriam, Re 
 
 
 
 306 
 
 Perry v. Smith 
 
 
 
 230 
 
 Perry v. Sufifields 
 
 
 
 32, 33 
 
 Peru Repub. v. Peruvian Guano Coy. ... 
 
 
 95 
 
 Peter v. Nicholls 
 
 
 
 302 
 
 Peters v. Lewes, &c., Rly. 
 
 Coy. 
 
 
 334 
 
 Peterson v. Eyre 
 
 
 
 204 
 
 Phelps V. Comber 
 
 
 183, 
 
 190, 195 
 
 Phillimore v. Barry ... 
 
 
 
 56 
 
 Phillips V. Alhambra Palace 
 
 Coy. 
 
 
 116 
 
 Phillips V. Caldcleugh 
 
 
 
 50, 245 
 
 Phillips V. Dickson ... 
 
 
 
 184 
 
 Phillips V. Eyre 
 
 
 
 96 
 
 Phillips V. Homfray ... 
 
 ... .. •• 
 
 
 77 
 
 Phillips V. Silvester ... 
 
 
 
 274 
 
 Philpot V. Lehain 
 
 
 
 365 
 
 Phillpotts V. Evans 
 
 
 201, 
 
 202, 203 
 
 Phoenix Assurce. Coy. v. Spooner 
 
 
 277 
 
 Phoenix Steel Coy., Re 
 
 ... 157,178,183, 
 
 1^4, 186, 
 
 192, 203 
 
 Pickering v. Busk ... 
 
 
 S6,SS 
 
 , 90, 103 
 
 Pickering v. Ely 
 
 
 
 29S 
 
 Pickett V. Loggon 
 
 
 
 316 
 
 Pickles V. Sutcliffe ... 
 
 
 
 300 
 
 Pignatoro v. Gilroy ... 
 
 
 
 146 
 
 Piggott V. Birtles 
 
 
 
 365, 367 
 
 Pigott and G. W. Rly. Coy 
 
 .,'Re 
 
 280, 
 
 293, 294
 
 Ixiv 
 
 TABLE OF CASES. 
 
 Pilcher v. Rawlins 
 Pimm V. Insall 
 
 Pinciiin v. London & Blackwall Rly. 
 Pitt V. Shaw- 
 Pitt V. White 
 Pitts V. Beckett 
 Plant V. Bourne 
 
 Plasycoed Collieries Coy. v. Partridge 
 Playford v. Mercer ... 
 Plevins v. Downing ... 
 Plews V. Samuel 
 Pole V. Leask 
 
 Polenghi Bros. v. Dried Milk Coy. 
 Pollard V. Clayton 
 Pollard V. Gare 
 Pollitt, Re ... 
 Ponsford and Newport School Board, Re 
 Ponsford v. Union of London, &c., Bank 
 Poole V. Adams 
 Poole and Clarke, Re 
 Poole V. Hill 
 Poole V. Shergold 
 Pope, Re 
 
 Popple and Barratt's Contract, Re 
 Poppleton V. Buchanan 
 Pordage v. Cole 
 Portman v. Mill 
 Postlethwaite v. Freeman 
 Pott V. Flather 
 Potter V. Duffield 
 Potter V. Sanders 
 
 Poulton V. Anglo-American Oil Coy. 
 Poulton V. Lattimore 
 Poussard v. Spiers 
 Powell V. Doubble 
 
 Edmonds ... 
 
 Elliott 
 
 352 
 
 Powell V. 
 Powell V. 
 Powell V. 
 Powell V. 
 
 Hyland 
 Jones 
 
 Powell V. Marshall ... 
 Powell V. Marshall Parkes & Co. 
 Powell V. Martyr 
 Power V. Barham 
 Powle V. Gunn 
 Poynter v. Buckley ... 
 Price V. Macaulav ... 
 
 PAGE 
 
 281 
 
 349 
 
 358, 360 
 
 367 
 
 349, 351 
 
 55 
 
 40,49 
 
 3,367 
 
 162 
 
 156, 161 
 
 273, 278 
 86, 88, 9D 
 
 170 
 209, 298 
 314 
 287 
 294 
 287 
 277 
 318 
 237 
 
 274, 278 
 256 
 292 
 246 
 157 
 
 68, 239 
 
 160 
 
 202 
 
 48, 300 
 
 281, 282 
 
 181, 192 
 
 200 
 
 168 
 
 232 
 
 39 
 
 304 
 
 79 
 
 95 
 
 295 
 
 287 
 
 279, 280 
 
 131 
 
 58 
 
 368 
 
 232
 
 TABLE OF CASES. Ixv 
 
 PAGE 
 
 Price V. Metropolitan House Coy. ... ... ... 96 
 
 Price V. North ... ..." ... ... ... 233 
 
 Prickett -.'. Badger ... ... ... ... ... 100 
 
 Priddle v. Wood ... ... ... ... ... 50 
 
 Priest V. Last ... ... ... ... ...138,139 
 
 Priestley and Davidson, Re ... ... ... ...224,251 
 
 Priestley v. Fernie ... ... ... ... ... 104 
 
 Prince v. Clarke ... ... ... ... .. 95 
 
 Prinz Adalbert, The ... ... ... ... ...148,158 
 
 Prior V. Moore ... ... ... ... ... 85 
 
 Prior V. Penpraze ... ... ... ... ... 290 
 
 Pritchard i;. Ovev ... ... ... ... ... 52, 299 
 
 Proud V. Bates ' ... ... ... ... ... 323 
 
 Proudlove v. Twemlow ... ... ... 367 
 
 Pryce Jones and Williams, i?e ... 
 
 Public Trustee v. Lawrence ... ... ... .. 343 
 
 Puckett and Smith, /?e ... ... ... 233,239,296 
 
 Pulbrook V. Lawes ... ... ... ... ... 57, 58 
 
 Purvis V. Rayer ... ... ... ... ... 245 
 
 Pvm V. Campbell ... ... ... ... . . 63 
 
 Pyrke x». Waddingham ... ... ... 244,303,-341 
 
 Quincy, Ex parte ... ... ... ... ... 241 
 
 Ouinion v. Home ... ... ... ... ... 228 
 
 Rabbidge, £.\- /)ar/e ... ... ... ... ...286,287 
 
 Rabe v. Otto ... ... ... ... ... 200 
 
 Radcliffe v. Evans ... ... ... ... ... 212 
 
 Radenhurst v. Bates ... ... ... ... ... 10 
 
 Raffles V. Wichelhaus ... ... ... ... 65 
 
 Rainbow v. Hawkins ... ... ... ... 92, 97 
 
 Raitt V. Mitchell ... ... ... ... ... 175 
 
 Ralph V. Horton ... ... ... ... ... 351 
 
 Ramsay 7>. Margrett ... ... ... ... ... 2 
 
 Ramsden v. Hurst ... ... ... ... ... 217 
 
 Ramsden v. Manch. &c., Rly. Coy ... ...353,358 
 
 Randall v. H.ill ... ... ... ... ... 74 
 
 Rawson v. Johnson ... ... ... ... ... 157, 195 
 
 Ray, Re ... ... ... ... ... ... 316 
 
 Ray V. Walker ... ... ... ... ... 354 
 
 Rayner t;. Preston ... ... ... ... 273.276,277 
 
 Rayner's Trustees and Greenaway, Re ... ... 340 
 
 Read v. .'\nderson ... ... ... ... ... lO'J 
 
 Read v. Price ... ... ... ... ... 44 
 
 Read v. Shaw ... ... ... ... ' ... 341 
 
 B
 
 Ixvi TABLE OF CASES. 
 
 PAGE 
 
 Reddall v. Union Castle Coy. ... ... ... 187 
 
 Reddin v. Metro. Board ... ... ... ... 361 
 
 Recjgrave v. Hurd ... ... ... ... 71, 73, 76, 77 
 
 Reed, Re ... ... ... ... ... ... 64 
 
 Reese River Coy. v. .Smith ... ... ... ... 74 
 
 Reeve v. Berridge ... ... ... ... ...221,303 
 
 Reeve v. Palmer ... ... ... ... ... 195 
 
 Reeves v. Gill ... ... ... ... 237 
 
 R. V. Ambergate Rly. Coy. ... ... ... ... 357 
 
 R. V. Commrs. of Woods and Forests ... ... ... 36t3 
 
 Reg. V. Cooper ... ... ... ... ... 56 
 
 Rex V. Demers ... ... ... ... ... 23 
 
 R. V. Garland ... ... ... ... ... 320 
 
 R. V. Jones ... ... ... ... ... ... 182 
 
 Rex. V. Kane ... ... ... ... ... 83 
 
 R. V. Kennedy ... ... ... ... ... 362 
 
 Rex V. Kent JJ. ... ... ... ... ... 67 
 
 R. V. L. S.W. Rly 360 
 
 Rex z>. Longnor ... ... ... ... ... 63,87 
 
 R. V. Marsh ... ... ... ... ... ... 141 
 
 Rex V. Vice Registrar Land Registry ... ... 265 
 
 R. V. Wilson ... ... ... ... ... 320 
 
 Regent's Canal Coy. v. Ware ... ... ...280,363 
 
 Reid V. Bickerstaff ... ... ... ... ... 330 
 
 Reid V. Hoskins ... ... ... ... ... 208 
 
 Reid V. Shergold ... ... ... ... ... 341 
 
 Reis, Re ... ... ... ... ... ... 286 
 
 Renals v. Cowlisham ... ... ... ... 330 
 
 Rendlesham v. Meux ... ... ... ... 338 
 
 Reuss V. Picksley ... ... ... ... ... 54,55 
 
 Reuter v. Sala ... ... ... ...133,163,165,166 
 
 Reynolds v. Hooper ... ... ... ... ... 56 
 
 Reynolds v. Nelson ... ... ... ... ... 229 
 
 Rhodes v. Forwood ... ... ... ... ... 108 
 
 Rhodes v. Selsey ... ... ... ... ... 212 
 
 Riccard x;. Pritchard ... ... ... ... ... 113 
 
 Richards, Re ... ... ... ... ... 115 
 
 Richards v. Porter ... ... ... ... ... 55 
 
 Richards v. Swansea Improvement Coy. ... ...360,361 
 
 Richards v. Symons ... ... ... ... ... 181 
 
 Richardson v. Oxford ... ... ... ... 96 
 
 Richmond v. N. L. Rly. Coy ... ... 360 
 
 Ricket V. Metro. Rly. Coy. ... ... ... ... 361 
 
 Ridgway v. Gray ... ... ...233,235 
 
 Ridgway v. Sneyd ... ... ... ... ... 66
 
 TABLE OF CASES. Ixvti 
 
 PAOK 
 
 Ridgway v. Stafford ... ... ... ... ... 368 
 
 Ridgway v. Ward ... ... ... ... ... 160 
 
 Ridgway v. Wharton ... ... ... 37,46,47 
 
 Ridout ?;. Fowler ... ... ... ... ...273,291 
 
 Rigge V. Burbridge ... ... ... ... ... 210 
 
 Riley to Streatfield, Re ... ... ... ... 230 
 
 Rimmer v. Webster ... ... ... ... 82 
 
 Ripley v. McClure ... ... ... ... ... 203 
 
 Rippinghall v. Lloyd ... ... ... .. 2o3 
 
 Roberts v. Berry ... ... ... ... ... 223 
 
 Roberts v. Brett ... ... ... ... ... 160 
 
 Roberts v. Gray ... ... ... ... ... 16 
 
 Roberts v. .Marchant ... ... ... ... 2^4 
 
 Roberts v. Wyatt ... ... ... ... ... lUo 
 
 Robey v. Arnold ... ... ... ... ... 100 
 
 Robins v. Evans ... ... ... ... ... 216 
 
 Robinson, Re ... ... ... ... ... 347 
 
 Robinson v. Harman ... ... ... ...198,297 
 
 Robinson t;. -Mollett ... ... ... ... 89,92,93 
 
 Robinson v. .Musgrove ... ... ... ...223,232 
 
 Robinson v. Rutter ... ... ... ... ... 220 
 
 Robinson v. Waddington ... ... ... ... 366 
 
 Robson V. Drummond ... ... ... ... 110, 116 
 
 Rochefoucauld v. Boustead ... ... ... ... 88 
 
 Rocke V. Hills ... ... ... ... ... 366 
 
 Roden v. Eyton ... ... ... ... .. 366 
 
 Roderick v. Aston Local Board ... ... ... 353 
 
 Rodgers v. Parker ... ... ... ... ... 367 
 
 Rodwell V. Phillips ... ... ... ... ... 13 
 
 Rogers v. Hadley ... ... ... ... ... 40 
 
 Rogers ti. Hosegood ... ... ... ... ■•. 330 
 
 Rohde V. Thwaites ... ... ... ... ... 146 
 
 Roots V. Dormer ... ... ... ... ... 39 
 
 Roper V. Johnson ... ... ... ... ■. 205 
 
 Rose t>. Watson ... ... ... ... ...273,280 
 
 Rosenbaum v. Belson ... ... ... •■• 93 
 
 Rosenberg v. Cook ... ... ... ... •• 225 
 
 Rosevear China Clay Coy., Ex parte, Re Cock ... 162, 185, 186 
 
 Rossdale v. Denny ... ... ... ... ... 30, 38 
 
 Rossiter V. Miller ... ... ... ... 27,38,49 
 
 Roth V. Taysen ... ... ... ... •.• 203 
 
 Rothschild V. Brookman ... ... ... ■•• 98 
 
 Routledge v. Grant ... ... ... ... 30 
 
 Row V. Dawson ... ... ... ... ■•• HI 
 
 Rowe Bros. v. Crossley ... ... ... ... 210
 
 Ixviii 
 
 TABLE OF CASES. 
 
 Roxburghe v. Cox 
 
 Roy. Bank of Canada v. Rex 
 
 Roy. Bristol, &c., Socy. v. Bomash 
 
 Ruck V. Hatfield .". 
 
 Rucker v. Cammeyer 
 
 Rudd V. Lascelles 
 
 Rugg V. Minett 
 
 Russell V. Harford 
 
 Russell V. Plaice 
 
 Russell V. Shoolbred ... 
 
 Ryall V. Dowies 
 
 Ryder v. Wombwell ... 
 
 PAGE 
 
 ... 111,115 
 213 
 
 ...274,275 
 
 180 
 
 91 
 
 ... 233, 305 
 
 ... 144, 145 
 239 
 338 
 184 
 114 
 16 
 
 St. Albans v. Shore ... 
 
 St. Thomas' Hospital v. Charing Cross Rly. ... 
 
 St. Thomas' Hospital v. Richardson ... 
 
 Sale V. Lambert 
 
 Salisbury v. G. N. Rly. Coy. ... 
 
 Salmon v. Randall 
 
 Salomon v. Brownfield 
 
 Salomon v. Salomon & Co. 
 
 Salomons v. Nissen ... 
 
 Salter v. Metro. Rly. Coy. 
 
 Salton V. New Beeston Cycle Coy. 
 
 Salvesen v. R.A.N. ... 
 
 Samuel v. Duke 
 
 Sandbach and Edmondson, Re 
 
 Sandeman v. .Senor 
 
 Sander and VValford, Re 
 
 Sanders v. Jameson ... 
 
 Sanders v. Maclean ... 125, 133, 
 
 Sanders v. Sadler 
 
 Sanderson v. Graves 
 
 Sansom and Narbeth, Re 
 
 Santa Fe Coy. v. Forestal Land Coy. 
 
 Sard V. Rhodes 
 
 Sari V. Bourdillon 
 
 Saunders v. Topp 
 
 Saunderson v. Jackson 
 
 Savill Bros. v. Bethell 
 
 Sawyer and Baring, Re 
 
 Saxby v. Thomas 
 
 Schmaling v. Tomlinson 
 
 Schneider v. Norris ... 
 
 Scholfield V. Londesborough ... 
 
 244 
 360 
 286 
 
 19 
 357 
 357 
 100 
 
 11 
 194 
 360 
 109 
 
 94 
 155 
 ... 293,294 
 189 
 237 
 172 
 158, 180, 192, 193 
 145 
 
 43 
 311 
 
 29 
 183 
 
 45 
 
 171 
 
 ... 47,56 
 
 300 
 
 ...242,317 
 
 225 
 
 . 95, 111 
 
 56 
 103
 
 TABLE OF CASES. 
 
 
 
 
 
 PAGE 
 
 Schotsman v. L. & Y. Rly. ... 
 
 
 
 
 ... 185, 191 
 
 Scorell V. Boxall 
 
 
 
 
 43 
 
 Scott and Alvarez, Re 
 
 
 2iy, 
 
 221, 
 
 222, 293, 297 
 
 Scott V. Avery 
 
 
 
 
 53 
 
 Scott V. Coulson 
 
 
 
 
 ... 61,128 
 
 Scott :;. England 
 
 
 
 
 199 
 
 Scott V. Hanson 
 
 
 
 
 ... 73,304 
 
 Scutt V. Jackman 
 
 
 
 
 243 
 
 Scott V. Littledale 
 
 
 
 
 67 
 
 Scott V. Nixon 
 
 
 
 
 247 
 
 Scott V. Sebright 
 
 
 
 
 79 
 
 Scrivener t;. G.N. Rly. Coy. ... 
 
 
 
 
 180 
 
 Seaman v. V'avvdrey 
 
 
 
 
 ... 217,234 
 
 Seddon v. N.E. Salt Coy. 
 
 
 
 
 75 
 
 Selby V. Bowie 
 
 
 
 
 336 
 
 Sellick V. Turner 
 
 
 
 
 221 
 
 Selwyn v. Garfitt 
 
 
 
 
 345 
 
 Senecal v. Pauze 
 
 ... 
 
 
 
 4 
 
 Seton V. Slade 
 
 
 55,84 
 
 , 93, 
 
 108, 224, 299 
 
 Sewell V. Burdick {see Burdick v. 
 
 Sewell) 
 
 
 
 194 
 
 Seymour, Re 
 
 
 
 
 6 
 
 Seymour v. Pychlan ... 
 
 
 
 
 94 
 
 Shackleton v. Sutcliffe . 
 
 
 
 
 ...233,303 
 
 Shannon v. Bradstreet 
 
 
 
 
 284 
 
 Shardlow v. Cotterell 
 
 
 
 
 48, 49, 299 
 
 Sharman v. Brandt ... 
 
 
 
 
 92 
 
 Sharp V. Christmas ... 
 
 
 
 
 159 
 
 Sharp V. Gt. W. Rly. 
 
 
 
 
 172 
 
 Sharpe v. Fowie 
 
 
 
 
 366 
 
 Shaw V. Foster 
 
 
 
 .27.S, 
 
 , 278, 282, 283 
 
 Sheard v. Venables ... 
 
 
 
 
 227 
 
 Sheers v. Thimbleby 
 
 
 
 
 48 
 
 Sheffield Nickel Coy. v. Unwin 
 
 
 
 
 75 
 
 Sheldon v. Cox 
 
 
 
 
 4 
 
 Shell Transport Coy., Re 
 
 
 
 
 162 
 
 Shelley v. Nash 
 
 
 
 
 80 
 
 Shepherd v. Croft 
 
 
 68, 
 
 233, 
 
 239, 296, 303 
 
 Shepherd v. Harrison 
 
 
 
 
 148 
 
 Shepherd v. Norwich Corp. 
 
 
 
 
 358 
 
 Sheppard, Re 
 
 
 
 
 324 
 
 Sherwin v. Shakspear 
 
 
 224. 
 
 231, 
 
 274, 275. 27S 
 
 Shipton, Anderson & Coy. v. Weil 
 
 Bros. 
 
 
 
 163 
 
 Shipton V. Casson 
 
 
 
 
 163 
 
 Shrewsbury, &c., Rly. v. L. N. W 
 
 . Rly. 
 
 
 
 302 
 
 Sibtree v. Tripp 
 
 
 
 
 183
 
 Ixx 
 
 TABLE OF CASES. 
 
 Sidebotham v. Barrington 
 
 Sidney v. Ranger 
 
 Sievewright v. Archibald 
 
 Siffken v. Wray 
 
 Simpson v. Hartopp 
 
 Simpson v. Henderson 
 
 Simpson v. Hughes and Armstrong ... 
 
 Simpson v. Lane, and Carl. Rly. 
 
 Simpson and Moy, Re 
 
 Simpson v. S. Staffs. Wat. Coy. 
 
 Sims V. Bond 
 
 Sims V, Marryat 
 
 Sims V. Tuffs 
 
 Sinnott v. Bowden 
 
 Skeate v. Beale 
 
 Skull V. Glenister 
 
 Small V. Attwood {see Attwood v. Small) 
 
 Smally v. Smally 
 
 Smart v. Harding 
 
 Smart v. Sanders 
 
 Smethurst v. Taylor ... 
 
 Smith, Re 
 
 Smith V. Burnam 
 
 Smith V. Chadwick ... 
 
 Smith V. Chance 
 
 Smith V. Hudson 
 
 Smith V. Hughes 
 
 Smith V. Jackson 
 
 Smith V. Jeffreys 
 
 Smith V. Kay 
 
 Smith V. Land Corporation ... 
 
 Smith V. Myers 
 
 Smith V. Peters 
 
 Smith V. Robinson ... ... 
 
 Smith V. Surman 
 
 Smith V. Wallace 
 
 Smith t'. Wheatcroft ... 
 
 Smith V. W'inter 
 
 Smithson v. Powell 
 
 Sneezum, Re 
 
 .Soames v. Edge 
 
 Societe Anon. Russo-Belge v. Scholefield 
 
 Solly V. Rathbone 
 
 Solomon and Meagher, Re 
 
 .Somerset v. Cookson 
 
 PAGE 
 
 261 
 
 ...349,350 
 
 44, 46, 105 
 
 ... 184,190 
 
 365 
 
 160 
 
 229 
 
 359 
 
 223 
 
 353 
 
 105 
 
 51 
 
 365 
 
 277 
 
 79 
 
 216 
 
 71, 72, 279 
 
 87 
 
 42 
 
 91, 109, 255 
 
 105 
 
 337 
 
 224 
 
 69, 72, 76 
 
 159, 161, 162 
 
 125 
 
 22, 65, 67 
 
 220 
 
 65 
 
 ... 72, 76 
 
 73 
 
 12S 
 
 52 
 
 222 
 
 43, 45, 55 
 
 ... 225,228 
 
 64 
 
 199 
 
 ... 223, 233 
 
 283 
 
 299 
 
 165 
 
 101 
 
 345 
 
 209
 
 TABLE OF CASES. Ixxi 
 
 PAGE 
 
 Somerville and Furness, Re ... ... ... ... 342 
 
 Somerville and Turner, Re ... ... . ...284,285 
 
 Somes 7;. B. E. Shipping Coy. ... ... 173,177,191 
 
 Soper V. Arnold ... ... ... ... 126,219,240 
 
 Soper V. Kemp ... ... ... ... ... 226 
 
 Souter V. Drake ... ... ... ... ... 244, 245 
 
 S. E. Rly. V. Assoc. Portland Cement Coy. ... ... 329 
 
 South of Ireland Colliery v. Waddle ... ... 87 
 
 Southby V. Hutt ... ... ... ... ...253,261 
 
 Southern v. Harriman ... ... ... ... «50 
 
 South Wales Rly. v. Wythes ... ... ... 300 
 
 Southwell V. Bowditch ... ... ... ... 107 
 
 Spackman v. G. W. Rly. Coy. ... ... ... 361 
 
 Spalding v. Ruding ... ... ... ... ... 194 
 
 Sparkes z;. Marshall ... ... ... ... ... 146 
 
 Sparrow and James, Re ... ... ... ... 311 
 
 Sparrow v. O.xford, &c., Rly. Coy. ... ... ...358,361 
 
 Spartali 2;. Benecke ... ... ...157,182 
 
 Sp>encer's Case ... ... ... •• ... 329 
 
 Spencer v. Clarke ... ... ... . . ... 114 
 
 Spencer v. Harding ... ... ... ... ... 23 
 
 Spiller V. Spiller ... ... ... ... ... 281 
 
 Spindler and Mear, i?e 227,293 
 
 Spoor V. Green ... ... ... ... ... 67 
 
 Sprague v. Booth ... ... ... . ••. 219 
 
 Spurrier v. Hancock ... ... •■■ 223 
 
 Spurrier v. Le Cloche ... ... . ••• 53 
 
 Staines, Re ... ... ... ... .- ••• 347 
 
 Stamford and Knight, Re 249,251,252,293 
 
 Stamps V. Birm. &c. Rly. ... ... ... ... 359 
 
 Stanley v. Dowdesley ... ... .- ... 25 
 
 Stanton V. Tattersall ... .... ... .- ••• 261 
 
 Stapleton, Ex parte ... ... .•• ••• ...203,287 
 
 Stapvlton V. .Scott ... ... ... ... .. 68 
 
 Starr-Bowkett, i?e 225,228,261 
 
 Startup V. Macdonald ... ... ■■ ••• 162 
 
 Staunton v. Wood ... ... ... .• ••• 157, 160 
 
 Stebbing v. Metrop. Board ... ... .• •. 362 
 
 Stedman, Re 349,351 
 
 Steedman v. Drinkle ... ■■■ .•• ■•■ 223 
 
 Steel, Re 232 
 
 Steele v. Mid. Rly. Coy. ... ... ... ... 360 
 
 Steer v. Crowley ... ... ... ... 260 
 
 Stein, Forbes & Co. 7;. County Tailoring Coy. ... ... 200 
 
 Stephens v, Venables ... •• ••• •■■ •'3
 
 Ixxii TABLE OF CASES. 
 
 PAGB 
 
 Stevens v. Austen ... ... ... ... ... 337 
 
 Stevens v. Biller ... ... ... ... ... 83,91 
 
 Stevens v. Guppy ... ... ... ... ... 262 
 
 Stevens v. Theatres, Ltd. ... ... ... ... 346 
 
 Stevenson v. Aktien. f. C.-l. ... ... ... ... 108 
 
 Stevenson v. Maclean ... ... ... ... 34 
 
 Stevenson v. Newnham ... ... ... ... 74 
 
 Stewart t;. Alliston ... ... ... ... 231,232,300 
 
 Stewart v. Cauty ... ... ... ... ... 202 
 
 Stewart t;. Kennedy ... ... ... ... 59,62,63,04 
 
 Stickney v. Keeble ... ... ... ... ... 229 
 
 Stock V. Inglis ... ... ... ... 149,159,162 
 
 Stock t;. Meakin ... ... ... ... ...236,237 
 
 Stockton and Darlington Rly. v. Brown ... ... 353 
 
 Stoddart v. Union Trust ... ... ... ... 115 
 
 Stogdon V. Lee ... ... ... ... ... 19 
 
 Stokes V. Whicher ... ... ... ... ... 39,48 
 
 Stone V. Marsh ... ... ... ... ... 150 
 
 Stone V. Yoevil Corpn. ... ... ... ...356,362 
 
 Stoneham v. Stoneham ... ... ... ... 6 
 
 Stones V. Dowler ... ... ... ... ... 39 
 
 Stoveld 7^. Hughes ... ... ... ... ...182,192 
 
 Stowell 7). Robinson ... ... ... ... ... 229 
 
 Strafford and Maples, Re ... ... .. ... 231 
 
 Streets. Blay ... ... ... ... ...200,210 
 
 .Strickland t;. Turner ... ... ... 61,66,128,213 
 
 Strong V. Hawkes ... ... ... ... ... 238 
 
 Stroud V. Austin ... ... ... ... ... 205 
 
 .Stroughill V. Austen ... ... ... ... ... 338 
 
 Stuart V. Kennedy ... ... ... ... ... 68 
 
 Stuart T». L. N. W. Rly. ... ... ... ... 300 
 
 Stuart and Olivant and Seadon's Contract, Re ... 252 
 
 Stubbs t;. Holywell Rly. Coy. ... ... ... ... 116 
 
 .Studds V. Watson ... ... ... .. ... 45,47 
 
 .Stumor V. Breen ... ... ... ... ... 97 
 
 Sumner v. John Brown & Coy. ... ... ... 126 
 
 .Surtees v. Woodhouse ... ... ... ... 236 
 
 Sutherland v. Allhusen ... ... ... ... 159 
 
 Sutton V. Tatham ... ... ... ... ... 92 
 
 .Sutton's Hospital, Case of ... ... ... ... 13 
 
 Swaisland v. Dearsley ... ... ... ... 65, 216 
 
 Sweet V. Meredith ... ... ... ... ... 306 
 
 Sweets;. Pym ... ... ... ... ...101,181 
 
 Sweeting v. Pearce ... ... ... ... ... 88, lOG 
 
 Sweeting V. Turner ... ... ... ... ...144,148
 
 TABLE OF CASES. 
 
 Ixxiii 
 
 Swinbanks, Ex parte 
 Symes v. Hutley 
 Symington v. Cal. Rly. 
 Symons v. James 
 Synge v. Synge 
 
 Coy. 
 
 PAGE 
 
 323 
 164 
 363 
 216 
 281 
 
 Tailby v. Official Receiver 
 
 'i'aniplin v. James 
 
 Tiincred Arrol & Coy. v. Steel Coy. .. 
 
 Tancred v. Delagoa Bay Coy. ... 
 
 Tancred v. Leyland ... 
 
 Tanner v. Scovell 
 
 Tanner v. Smith 
 
 'ianqueray-Willaume and Landau, Re . 
 
 Tansley v. Jurner 
 
 Tarling v. Baxter 
 
 'J'ariing v. O'Riordan 
 
 T.isker v. Shepherd ... 
 
 Tasker v. Small 
 
 late V. Williamson ... 
 
 Taylor, Re ... 
 
 Taylor v. Brown 
 
 Taylor v. Bullen 
 
 Taylor v. Caldwell 
 
 Taylor v. Chambers ... 
 
 Taylor v. G.E. Rly. ... 
 
 Taylor v. Jones 
 
 Taylor v. Kymer 
 
 Taylor v. London, &c., Banking Coy 
 
 Taylor v. Martindale 
 
 Taylor v. McKeand ... 
 
 Taylor v. Russell 
 
 Taylor v. .Smith 
 
 Taylor v. Stibbert 
 
 Taylor v. Wakefield ... 
 
 Teal V. Auty 
 
 Teebay v. Manch. etc., Rly. ... 
 
 Tennant v. Trenchard 
 
 Tennants v. C. E. Wilson 
 
 Terry and White, Re 
 
 Tetley v. Shand 
 
 Thackwray and Young, Re 
 
 Thames Plate Glass Coy. v. Land, etc., 
 
 Thol V. Henderson 
 
 Thomas, Bartley and Thomas, Re 
 
 225, 
 Tele 
 
 ... 113, 127 
 
 ... (33,65 
 
 164 
 
 112 
 
 366 
 
 179 
 
 ...226,227 
 
 225 
 
 125,144,181 
 
 144 
 
 165 
 
 116 
 
 9, 10 
 
 82 
 
 286 
 
 223 
 
 136 
 
 ...130,276 
 
 151 
 
 ...124,188 
 
 121 
 
 101 
 260 
 
 216 
 
 150 
 
 282 
 
 46 
 
 281 
 
 125 
 
 43 
 
 318 
 
 350 
 
 161 
 
 228, 239, 240, 294, 305 
 
 171 
 
 ... 294,303,3-54 
 
 graph Cov. ... 289, 290 
 
 ...206,207 
 
 349
 
 Ixxiv TABLE OF CASES. 
 
 PACK 
 
 Thomas v. Brown ... ... ... ... ... 58, 213 
 
 Thomas v. Uering ... ... ... ... ... 234, 305 
 
 Thomas v. Fredericks ... ... ... ... 54 
 
 Thomas v. Harrowing S.S. Coy. ... ... ... 156 
 
 Thomas v. Sorrell ... ... ... ... ... 159 
 
 Tliomas v. Williams ... ... ... ... 57 
 
 Thompson v. Gardiner ... ... ... ... 46, 105 
 
 Thompson v. Hickman ... ... ... ...311,363 
 
 Thompson v. Trail ... ... ... ... ... 180 
 
 Thomson v. Davenport ... ... ... ... 104, 105 
 
 Thomson v. Eastwood ... ... ... ... 81 
 
 Thorne r. Heard ... ... ... ... ...106,346 
 
 Thornett t'. Haines ... ... ... ... 23,78,141,142 
 
 Thornhill v. Neats ... ... ... ... ... 132 
 
 Thornley v. Thornley ... ... ... ... 309 
 
 Thornton v. Kempster ... ... ... ... 31, 105 
 
 Thoroughgood's Case ... ... ... ... 64 
 
 Thuman v. Best ... ... ... ... ... 84,93 
 
 Thurnell v. Balbirnie ... ... ... 54 
 
 Thursby v. Eccles ... ... ... ... ... 59 
 
 Thurston v. Nottingham Bldg. Socv. ... ... •■• 16 
 
 Tigress, The ' 184, 185, 190, 191 
 
 Tilley v. Bowman ... ... ... ... •-. 153 
 
 Tilley z'. Thomas 223,229,235,274 
 
 Tingley v. Muller ... ... ... ... ... 255 
 
 Tiverton, <k.c., Rlv. v. Loosemore ... ... ... 357, 359 
 
 Todd and McFadden, Re ... ... ... ... 224 
 
 Tolhurst V. Assoc. Port. Cement Mfrs. 110, 112, 113, 203, 282, 283 
 
 Tomkinson v. Staight ... ... --. ••• 59 
 
 Tomlin v. Luce ... ... ... ... •-. 346 
 
 Tomlinson v. Millar ... ... ... •■■ 99 
 
 Toms V. Wilson ... ... ... ••• ••• 160 
 
 Toppin V. Lomas ... ... ... ••• ••■ 42 
 
 Torkington v. Magee ... ... ... 111,113,283 
 
 Torrance v. Bolton ... ... ... ... 71, 216, 217, 218 
 
 Tourret "v. Cripps ... ... ... ••• -■• 56 
 
 Towle (John) & Co. v. White ... ••• 7 
 
 Towle V. Topham ... ... ... ■•■ ••• 49 
 
 Townley v. Crump ... ... ... ••• ■•• 178 
 
 Tozer v. Burton ... ... ••• .•• ••• 343 
 
 'Jregelles v. Sewell ... ... ••• ••• ■ •• 149 
 
 Trent t;. Hunt ... ... .•• ••• •■• 85,365 
 
 Tribe v. Taylor ... ... •■• ••• • •■ 1^^ 
 
 Trower t;. Newcome ... ... ••■ ■•• ••• 73 
 
 Truman's Case ... ... •• ••• 34 
 
 Tryon, Re 253
 
 TABLb: OF CASES. Ixxv 
 
 PAGE 
 
 Tubbs V. Wynne ... ... ... ... ... 236 
 
 Tucker v. Humphrey ... ... ... ... 184 
 
 Tucker v. Vowles ... ... ... ... ... 331 
 
 Tulk V. Moxhay ... ... ... ... ... 330 
 
 Turley v. Bates ... ... ... ... ... 145 
 
 Turner v. Harvey ... ... ... . 77 
 
 Turner v. Mucklow ... ... ... ... ... 139 
 
 Turner v. Moon ... ... ... ... . . 316 
 
 Turner v. Reeve ... ... ... ... lUO 
 
 Turner v. Trustees Liverpool Docks ... ... . . 186 
 
 Turner v. Turner ... ... ... ... ... 244 
 
 Turpin v. Bilton ... ... ... ... ... 95 
 
 Turpin v. Chambers ... ... ... ... 226, 227 
 
 Turquand v. Rhodes ... ... ... ...231,279 
 
 Turton v. Benson ... ... ... ... ... 115 
 
 Tweed v. Mills ... ... ... ... ... 222 
 
 Tyers v. Rosedale Iron Coy. ... ... ...101,206 
 
 Tyler v. Yates ... ... ... ... ... 80 
 
 Tyrrell, Re ... ... ... ... ... ... 317 
 
 UUock V. Reddelein ... ... ... ... ... 168 
 
 Union Bank of London v. Lenanton ... ... ... 125 
 
 Upperton v. Nicholson ... ... 217,224,22.5,232,245 
 
 U.xbridge, &c., Rly. Coy., Re ... ... ... ... 357 
 
 Vale V. Bayle ... ... ... ... ... 168 
 
 Vale of Neath Colliery v. F"urness ... ... 50,93 
 
 Valentine v. Canali ... ... ... ... ... 15, 16 
 
 Valpy V. Gibson ... ... ... ... ...181,200 
 
 Valpy -y. Oakley ... ... ... ... 202,204,206 
 
 Van Casteel I). Booker ... ... ... 148, lh^3, 186 
 
 Vancouver v. Bliss ... ... ... ... ... 262 
 
 Van den Hurk v. Martens ... ... ... ... 205 
 
 Van Praagh v. Everidge ... ... ... ... 48 
 
 Varley v. Whipp ... ... ... ... ... 171 
 
 Vaughan v. Hancock ... ... ... ... 57 
 
 Vavasour, Re ... ... ... ... ... 288 
 
 Venn I-. Cajttell ... ... ... ... ...224,296 
 
 Verrall v. Cathcart ... ... ... ... ... 350 
 
 Vertue v. Jewell ... ... ... .. ...IK"), 194 
 
 Vickers 1-. Hand ... ... ... ... ...230,231 
 
 Vickers v. Hertz ... ... .. ... .. 127 
 
 Vickers v. Vickers ... ... ;.. ... .. 53,54 
 
 Vic Mill, Re ... ... ... ... . 199 
 
 Vigers i>. Pike ... ... ... ... . 75
 
 Ixxvi 
 
 TABLE OF CASES. 
 
 
 
 PAGE 
 
 Vigers t;. Sanderson ... 
 
 
 137 
 
 Vimbos, Ltd., Re 
 
 
 85 
 
 Viney v. Chaplin 
 
 
 322, 323 
 
 Von Hatzfelt-Wildenberg v. Alexander 
 
 
 25, 29, 38 
 
 Voss, Re, Ex parte Llansamlet Tin Coy. 
 
 
 206 
 
 Vowles V. Bristol 
 
 
 228 
 
 Waddeil v. Blockey ... 
 
 
 202 
 
 Waddell v. Woolfe ... 
 
 
 . 221, 245 
 
 Waddington v. Oliver 
 
 
 163, 165 
 
 Wadmore v. Toller ... 
 
 
 232 
 
 Wain V. Warlters 
 
 
 51 
 
 Wait V. Baker 
 
 12o 
 
 , 168, 180 
 
 Wake V. Harrop 
 
 
 . 40, 63 
 
 W'akeman v. Lindsey 
 
 
 365 
 
 Walden, Ex parte 
 
 
 6 
 
 Waidron v. Jacob 
 
 
 49 
 
 Walford, Re ... 
 
 
 351 
 
 Walker and Oakshott, Re ... 
 
 295 
 
 322, 337 
 
 Walker v. Bradford Old Bank 
 
 
 114 
 
 Walker v. Crabb 
 
 
 84 
 
 W^alker v. Drakeford 
 
 
 150 
 
 W'alker v. Xussey 
 
 
 126 
 
 W^alker v. Shore 
 
 
 337 
 
 Walker v. Southall ... 
 
 
 338 
 
 Walker v. Spooner ... 
 
 
 330 
 
 W^alkers and Shaw, Re 
 
 
 138 
 
 Wallace v. Roe 
 
 
 92 
 
 Waller v. Hendon and Cox ... 
 
 
 88 
 
 Wallis and Barnard, Re 
 
 292, 294 
 
 315, 319 
 
 W'allis and Grout, Re 
 
 
 246 
 
 Wallis V. Pratt 
 
 .132, 137 
 
 172, 211 
 
 Wallis V. Russell 
 
 66 
 
 138, 139 
 
 Wallis V. .Sarel 
 
 
 231 
 
 Wall V. Bright 
 
 
 272, 278 
 
 Walmesley and Shaw, Re 
 
 
 293, 313 
 
 Walpole 7'. C)rford 
 
 
 301 
 
 W'alstab v. Spottiswoode 
 
 
 213 
 
 W' alter v. Maunde 
 
 
 243 
 
 Wancke v. Wingren 
 
 
 162 
 
 Want V. Stallibrass ... ... 219,224, 
 
 225, 251, 
 
 260, 295 
 
 Ward V. Duncombe ... 
 
 
 114, 115 
 
 Warde v. Dixon 
 
 
 224, 227 
 
 Waring v. Ward 
 
 
 318 
 
 Warlow V. Harrison ... 
 
 
 23, 141
 
 TABLE OF CASES. 
 
 Ixxvii 
 
 Warner v. Jacobs 
 
 Warner v. Willington 
 
 Warren v. Richardson 
 
 Warwick v. Bruce 
 
 Washburn v. Burrows 
 
 Waterhouse, Re 
 
 Waters v. Towers 
 
 Watkins v. Rymill 
 
 Watson, Ex parte 
 
 Watson V. Marston 
 
 Watson V. Swann 
 
 VVatteau v. Fenwick 
 
 Watts V. Friend 
 
 Watts V. Watts 
 
 Wauton V. ('oppard ... 
 
 Webb V. Hughes 
 
 W'ebb V. Manch., Ike, Rly. ... 
 
 Webb V. Smith 
 
 Webster v. Cecil 
 
 Webster v. Donaldson 
 
 Wedgwood V. .Adams ... 
 
 W^eeding v. Weeding ... 
 
 Weeks v. Goode 
 
 Weekes v. Gallard 
 
 Weiner v. Gill 
 
 Weiner v. Harris 
 
 Weir, Re 
 
 Weir V. Union S.S. Coy. 
 
 Welcome v. Upton 
 
 Weld V. S. \V. Rly. ... 
 
 Welford v. Beazely ... 
 
 Wellaway v. Courtier 
 
 Wells V. Maxwell 
 
 Wells V. Smith 
 
 Welsh r. Rose 
 
 Wentworth v. Cock ... 
 
 Wentworth v. Outhwaite 
 
 Wertheim v. Chicoutimi Pulp Coy. 
 
 West of England, Ike, Coy. v. Isaacs ... 
 
 West V. De Wezele ... 
 
 West London Comm. Bank i'. Reliance 
 
 Western v. Russell 
 
 Weston V. Savage 
 
 Weston and Thomas, Re 
 
 Westwood V. Cowne 
 
 Westzinthus, Re 
 
 Building Soc\. .. 
 '50 
 
 PAGE 
 
 345 
 
 54 
 
 222 
 
 15 
 
 43 
 
 237 
 
 208 
 
 121 
 
 190 
 
 ... 62,302 
 
 96 
 
 102 
 
 ... 43, 123 
 
 ...277,359 
 
 67 
 
 ... 229,230 
 
 353 
 
 114 
 
 69 
 
 278 
 
 302 
 
 299 
 
 ... 101, 182 
 
 .53 
 
 145 
 
 ... 86, 104 
 
 265 
 
 189 
 
 258 
 
 357 
 
 44 
 
 43 
 
 280 
 
 76 
 
 365 
 
 116 
 
 1 70. 187, 195 
 
 ...205,207 
 
 277 
 
 68 
 
 346 
 
 233, 305 
 
 297 
 
 228, 294 
 
 366 
 
 191, 191
 
 Ixxviii 
 
 TABLE OF CASES. 
 
 ^^'heatley v. Westminster Brymbo Coy 
 
 Wheeldon v. Burrows ... 
 
 Wheeler v. Collier 
 
 Wheeler v. D'Esterre 
 
 Whincup V. Hughes ... 
 
 W'histler v. Foster 
 
 Whiston's Settlement, Re 
 
 White and Smith, Re ... 
 
 White -J. Cuddon 
 
 White V. Damon 
 
 White V. Ellis 
 
 White, Ex parte 
 
 White V. Foljambe ... 
 
 White V. Gainer 
 
 White V. Nutts 
 
 White V. Proctor 
 
 White V. Spettigue 
 
 White V. White 
 
 White V. Williams 
 
 Whitehead v. Anderson 
 
 Whitehorn Bros. v. Davison 
 
 Whiteley, Ltd. v. Hilt 
 
 Whiting to Loomes 
 
 Whitley Partners, Re 
 
 W'hittaker v. Whittaker 
 
 Whittam, Re 
 
 Whittemore v. Whittemore 
 
 Whitting, Re 
 
 Whittington v. Corder 
 
 Whitworth v. Gaugain 
 
 Wigan V. English Corporation 
 
 Wiggins V. Lord 
 
 W'igram v. Buckley 
 
 W'igram v. Fryer 
 
 Wilde V. Forte 
 
 Wilde V. Watson 
 
 Wilding V. Sanderson 
 
 W'ilkins v. Birm. Corp. 
 
 Wilkinson v. Evans ... 
 
 Wilkinson v. King 
 
 Wilkinson v. Lloyd ... 
 
 Wilkinson v. Martin 
 
 W'ilks V. Davis 
 
 Willett and .\rgenti. Re 
 
 Williams and Newcastle, Re 
 
 Williams v. Agius 
 
 
 
 PAGE 
 
 
 
 
 298 
 
 
 
 
 314 
 
 
 
 
 141 
 
 
 
 
 229 
 
 
 
 
 214 
 
 
 
 
 149 
 
 
 
 
 315 
 
 
 217, 293 
 
 303 
 
 ... 
 
 217, 302 
 
 337 
 
 
 
 
 298 
 
 
 
 
 115 
 
 
 
 7, 
 
 B, 85 
 341 
 182 
 276 
 
 
 
 36, 84, 92 
 
 
 
 
 160 
 
 
 
 
 63 
 
 
 
 
 162 
 
 
 184 
 
 ,187 
 
 188 
 153 
 
 
 
 . 154 
 
 ,208 
 
 
 
 . 239 
 
 294 
 87 
 285 
 348 
 239 
 113 
 217 
 290 
 194 
 220 
 263 
 358 
 223 
 93 
 63 
 
 
 
 . 359 
 
 361 
 
 
 
 . 47, 54 
 
 
 
 
 151 
 
 
 
 
 159 
 
 
 
 
 100 
 
 
 
 . 51 
 
 241 
 
 
 238 
 
 ,252, 
 
 294 
 
 
 
 . 238, 
 
 294 
 204
 
 TABLE OF CASES. Ixxix 
 
 PAGE 
 
 Williams v. Bayley ... ... ... ... ... 79 
 
 Williams v. Glenton ... ... ... ... 230, 231, 297 
 
 Williams v. Lake ... ... ... ... ... 48 
 
 Williams v. Lloyd ... ... ... .... ... 2.%' 
 
 Williams v. Millington ... ... ... ... 92 
 
 Williams v. .Morgan ... ... ... ... .. 318 
 
 Williams i;. Phillips ... ... ... ... ... 249 
 
 Williams v. Reynolds ... ... ... ... 206 
 
 Williams v. Spargo ... ... ... ... ... 221 
 
 Williamson v. Allison ... ... ... ... 51,210 
 
 Willion V. Berkeley ... ... ... ... ... 152 
 
 Willoughby, Ex parte ... ... ... ... 175 
 
 Willoughby v. Backhouse ... ... ... ... 367 
 
 Willoughbv V. Willoughby ... ... ... ...281,282 
 
 Wills V. Stradling ... ' ... ... ... ... 60 
 
 Wilmot V. Pike ... ... ... ... ... 282 
 
 Wilmot V. Wilkinson ... ... ... ... 222 
 
 Willmott V. Barber ... ... ... ... ... 302 
 
 Wilmott V. Gardner ... ... ... ... ... 212 
 
 Wilmshurst v. Bowker ... ... ... ... 197 
 
 Willson V. Leonard ... ... ... ... ... 323 
 
 Wilson's Case ... ... ... ... ... 34 
 
 Wilson V. Breadalbane ... ... ... ... 68 
 
 Wilson V. Clapham ... ... ... ... 235, 274, 278 
 
 Wilson V. Ducket ... ... ... ... ... 365 
 
 Wilson V. Greenwood ... ... ... ... ... 350 
 
 Wilson V. Harper ... ... ... ... ... 116 
 
 Wilson V. Nightingale ... ... ... ... 365 
 
 Wilson V. N. & B. RIy. ... ... ... ... 199 
 
 Wilson V. Tucker ... ... ... ... ... 233 
 
 Wilson V. West Hartlepool Rly. Coy. ... ... 12 
 
 Wiltshire Iron Coy., Re ... ... ... ... 288 
 
 Wiltshire V. .Sims ... ... ... ... ... 88,98 
 
 Wimble v. Rosenberg ... ... ... ... 169 
 
 Winch V. Keeley ... ... ... ... ... 286 
 
 Winch V. Winchester ... ... ... ... ... 68 
 
 Winchester v. Paine ... ... ... •• 263 
 
 Winks t». Hassall ... ... ... ...161,177 
 
 Winn V. Bull ... ... ... ... ... 27,38 
 
 Winterbourne v. Morgan ... ... ... ... 367 
 
 Withers v. Parker ... ... ... ... ••• 155 
 
 Wolverhampton Corporation v. Emmons ... ... 298 
 
 Wood and Lewis, Re ... ... ... ...230,238 
 
 W^ood V. Benson ... ... ... ... ... 57 
 
 Wood V. Bernal ... ... ... ... ...230,234 
 
 Wood V. Griffiths ... ... ... 234
 
 Ixxx 
 
 TABLE OF CASES. 
 
 Wood V. Manley 
 
 Wood V. Midgley 
 
 Wood V. Richardson 
 
 Wood V. Scarth 
 
 W'ood V. Tassall 
 
 W^oodland v. Fuller 
 
 Woolcott V. Peggie 
 
 Woolfe V. Home 
 
 Woolley V. Coleman 
 
 W^orkman, Clarke & Co. v. Lloyd Brazileno 
 
 Worley v. Frampton 
 
 Worssam, Re 
 
 Worthington, Ex parte 
 
 Wortley v. Gregory 
 
 Wray v. Kemp 
 
 Wright V. Bigg 
 
 WVight V. Dannah 
 
 Wilson V. Dunn 
 
 
 PAGE 
 
 
 58 
 
 
 38, 54 
 
 
 337 
 
 
 . 49, 69 
 
 
 159 
 
 
 155 
 
 
 225 
 
 
 . 92,197 
 
 
 . 348, 350 
 
 
 200 
 
 238, 242 
 
 , 317, 341 
 
 
 81 
 
 
 200 
 
 ... 
 
 365 
 
 
 95 
 
 
 24 
 
 
 84 
 
 47, 296 
 
 , 299, 300 
 
 Xenos V. Wickham 
 
 35,36 
 
 Yangtse Ins. Ass. v. Lakmanjee 
 
 Yates V. Plumbe 
 
 Yonge V. Toynbee 
 
 Young and Harston, Re 
 
 Young V. Harris 
 
 Young V. Leamington Corporation 
 
 Ystalyfera Iron Coy. v. Neath, &c., Rly. 
 
 Yungmann v. Briesemann 
 
 159 
 
 238 
 
 109 
 
 231 
 
 258 
 
 12 
 
 357, 360 
 
 182, 195 
 
 Zagury v. Furnell 
 
 Zick V. London Tramways, Ltd. 
 
 Zwinger v. Samuda ... 
 
 144 
 361 
 150 
 
 I
 
 TABLE OF STATUTES. 
 
 PAGE 
 
 21 J;u. 1., f. 1() (Slatute of LiniitaliDns, 1623) ... ... 11 
 
 10 Car. II., (-. 17 (iiedford Level Act, 1(503) ... ... 327 
 
 29 Car. II., c. 3 (.Staitute of Frauds, 1677) 
 
 ss. 1-2 ... ... ... ... 36 
 
 s. 3 ... ... ... 36,321 
 
 s. 4 ... 41-44, 48, 55-60, 84, 88, 92, 215, 
 299, 301 
 
 -s. 10 ... ... 29 
 
 s. 17 ... ... ... 41, 88 
 
 2 Will. &■ Mar. ses.s. 1, c. 5 (.Sale of Distresses Act, 1690) 
 
 s. 2 ... ... 365, 366,367, 368 
 
 s. 3 ... ... ... ... 365 
 
 7 Anne, c 20 (xMiddlesex Registry Act, 1708) ... ... 327 
 
 11 Geo. II., c. 19 (Distress for Rent Act, 1737-8) 
 
 s. 8 ... ... ... 365,366*, 367 
 
 s. 10 ... ... ... ... 367 
 
 s. 19 365,367,368 
 
 14 Geo. III., c. 78 (Fires Prevention (Metropolis) Act, 1774) 277 
 54 Geo. III., c. 56 (.Sculpture Copyright Act, 1814) ... ... 36 
 
 3 & 4 Will. I\'., c. 27 (Real Property Limitation Act, 
 
 1833) ... ... 247,257 
 
 3 & 4 W'ill. IV., c. 74 (Fines and Recoveries Act, 1833) 
 
 s. 13 ... ... ... ... 265 
 
 s. 40 ... ... ... ... 284 
 
 s. 41 ... ... ... 256,328 
 
 s. 47 ... ... ... ... 284 
 
 ss. 50-54 ... ... ... ... 328 
 
 s. 84 ... ... ... ... 266 
 
 s. 88 ... ... ... ... 253 
 
 a 8: 7 Will. 1\'., c. 86 (Registration of Births, Deaths, 
 
 etc., 1836) ... ... 255,256, 257 
 
 7 Will. IV., and 1 \'ict. c. 26 (Wills Act, 1837) ... ... 285 
 
 1 & 2 Vict., c. 110 (Judgments Act, 1838) ... ... 290 
 
 2 & 3 Vict., c. 11 (Judgments Acts, 1839) ... 263,265 
 
 4 & 5 Vict., c. 38 (School Sites Act, 1841) ... ... 320 
 
 8 & 9 Vict., c. 16 (Companies Clauses Consolidation Act 
 
 1845) ... ... .'.. 36 
 
 F
 
 Ixxxii 
 
 TABLE OF STATUTES. 
 
 8 & 9 Viot., c. 
 
 8 & 9 Vict., c. 
 
 8 & 9 Vict. 
 
 8 & 9 Vict. 
 
 8 & 9 Vict. 
 
 10 & 11 Vict. 
 
 15 & 
 
 16 & 
 
 16 & 
 
 17 & 
 
 17 & 
 
 18 & 
 
 18 & 
 
 19 & 
 
 16 Vict. 
 
 17 Vict. 
 
 17 Vict. 
 
 18 Vict. 
 
 18 Vict. 
 
 19 Vict. 
 
 19 Vict. 
 
 20 Vict. 
 
 20 & 21 Vict. 
 
 22 & 23 Vict, 
 
 23 & 24 Vict, 
 23 & 24 Vict, 
 23 & 24 Vict 
 
 25 & 26 Vict. 
 
 27 & 28 Vict. 
 
 30 &• 31 Vict. 
 
 30 & 31 Vict. 
 
 31 & 32 Vict. 
 
 32 & 33 Vict. 
 
 33 & 34 Vict. 
 33 & 34 Vict. 
 33 & 34 Vict. 
 
 33 & 34 Vict. 
 
 PAGE 
 
 18 (Land Clauses Consolidation Act, 
 
 1845) . . . 112, 317, 320, 352, 364 
 
 20 (Railway Clauses Consolidation Act, 
 
 1845) 
 c. 106 (Real Property Act, 1845) . 
 c. 113 (Evidence Act, 1845) 
 c. 118 (Inclosure Act, 1845) 
 c. 11 (Waterworks Clauses Act, 
 
 51 (Copyhold Act, 1852) 
 51 (Succession Duty Act, 1853) ... 
 70 (Lunacy Regulation Act, 1853) 
 97 (Inclosure Act, 1854) 
 
 . 217,314,363 
 . 36, 311, 321 
 
 ... 254 
 
 255 
 
 1847) 
 
 217, 314, 363 
 
 ... 255 
 258 
 
 ... 257 
 243. 255 
 
 113 (Real Estate Charges Act, 1854) ... 285 
 15 (Judgments Act, 1855) ... ... 264 
 
 111 (Bills of Lading Act, 1855) 149, 183, 193 
 99 (Mercantile Law Amendment Act, 
 
 1856) ... ... 184,209 
 
 c. 77 (Court of Probate Act, 1857) ... 254 
 
 c. 35 (Law of Property Amendment Act, 
 
 1859) 243,250 
 
 c. 38 (Law of Property Amendment Act, 
 
 1860) ... ... ... 250 
 
 c. 106 (Lands Clauses Consolidation Amend- 
 ment Act, 1860) ... 341,352,355 
 
 c. 145 (Trustees and Mortgagees Act, 
 1860) (Lord Cranworth's 
 Act) ... ... 338,343 
 
 c. 108 (ConHrmation of Sales Act, 1862) ... 339 
 c. 114 (Improvement of Land Act, 1864) ... 265 
 c. 48 (Sale of Land by Auction Act, 
 
 1867) ... 78,218 
 
 c. 69 (Real Estate Charges Act, 1867) .. 
 c. 4 (.Sale of Reversions Act, 1867) 
 c. 18 (Lands Clauses Consolidation Act, 
 
 1869) 
 c. 14 (Naturalisation Act, 1870) ... 
 c. 35 (Apportionment Act, 1870) 
 c. 56 (Limited Owners' Residences Act, 
 
 1870) 
 
 r. 03 (Married Women's Property Act, 
 1870) 
 
 285 
 SO 
 
 352 
 
 10 
 
 236 
 
 265 
 
 17, 18 
 
 1
 
 TABLE U F STATUTES. Ixxxiii 
 
 PAGE 
 
 34 & 35 Vict., c 84 (Married Women's Property Act, 
 
 1870, Ainendnient Act, 1871) 265 
 
 30 ii: 37 Vict., c. lU (Judicature Act, 1873) 
 
 s. 24 71 
 
 s. 25(G) ... Ill, 112, 113, 114, 115, 283 
 s. 25(7) ... ... ... 133,223 
 
 37 iV 38 Vict., c. 5U (.Married Wouicn's Property Act, 
 
 1874) 17,18 
 
 37 & 38 Vict., c. 57 (Real Property Limitation Act, 
 
 1874 ... ... 247,264 
 
 37 i\,- 38 \'iot., c. 62 (Infants' Relief Act, 1874) ... 14, 15 
 
 37 & 38 Vict., c. 78 (Vendor and Purchaser Act, 1874) 
 
 s. 1 ... ... ... 220, 221,245 
 
 s. 2 ... ... 238,245,246,258,310 
 
 s. 9 ... ... ... ... 292 
 
 37 i\: 38 \'ict., c. 88 (Ri^nistration of Births, Deaths, etc., 
 
 1874) ... ... 255,256 
 
 38 i\; 39 \ict., c. m (Public Health Act, 1875) 12,13,236,265 
 38 & 39 Vict., c. 87 (Land Transfer Act, 1875) 
 
 250, 265, 266-272, 327 
 40 & 41 Vict., c. 15 (.Settled Kstates Act, 1877) ... ... 16 
 
 40 \' 41 Vict., c. 31 (Limited Owners' Reservoirs and 
 
 Water .Supply Act, 1877) ... 265 
 
 40 cV 41 \'ict., c. 34 (Real Estate Charges Act, 1877) ... 285 
 
 41 & 42 Vict., c. 31 (Bills of Sale Act, 1878) ... ... 149 
 
 44 & 45 Vict., c. 41 (Conveyancing and Law of Prop'crty 
 
 Act, 1881) ... ... ... 16 
 
 307,321 
 
 ... 238, 243, 245, 247, 248, 251, 252 
 255, 258 
 
 284,342 
 
 ... 307 
 
 ... 241,312,313 
 
 316,317,322 
 
 322 
 
 ... 238 
 
 333-343 
 
 343,344 
 ... 345 
 ... 325 
 ... 348 
 ... 340 
 ... 243 
 ... 323 
 
 s. 
 
 2 
 
 s. 
 
 3 
 
 s. 
 
 4 
 
 s. 
 
 5 
 
 s. 
 
 6 
 
 s. 
 
 7 
 
 s. 
 
 8 
 
 s. 
 
 9 
 
 s. 
 
 19 
 
 s. 
 
 20 
 
 s. 
 
 21 
 
 s. 
 
 22 
 
 s. 
 
 25 
 
 s. 
 
 35 
 
 s. 
 
 45 
 
 s. 
 
 47
 
 ixxxiv TABLE OF STATUTES. 
 
 44 & 45 Vict., c. 41 — Continued. 
 
 PAGB 
 
 s. 48 ... ... ... ... 255 
 
 s. 61 ... ... ... ... 315 
 
 s. 54 ... ... 259, 31U, 311,324 
 
 s. 55 ... ... ... ... 311 
 
 s. 56 311,323,324 
 
 s. 58 ... ... ... ... 329 
 
 s. 61 ... ... ... ... 325 
 
 s. 63 ... ... ... 312,313 
 
 s. 66 ... ... ... ... 338 
 
 s. 70 ... ... ... ... 348 
 
 45 & 46 Vict., c. 9 (Documentary Evidence Act, 1882) ... 254 
 45 & 46 Vict., c. 38 (Settled Land Act, 1882) ... 17,19,226 
 
 ss. 2,58 ... ... ... ... 333 
 
 s. 3 ... ... ... 333,334 
 
 ss. 4, 31, 53, 54 ... ... ... 334 
 
 s. 17 ... ... ... 335,339 
 
 ss. 19, 45,50,51 ... ... ... 335 
 
 s. 20 ... ... ... 320,336 
 
 s. 32 ... ... ... ... 284 
 
 s. 48 ... ... ... ... 255 
 
 s. 60 ... ... ... ... 340 
 
 45 & 46 Vict., c. 39 (Conveyancing Act, 1882) 
 
 s. 7 ... ... ... 253, 266 
 
 ss. 8,9 ... ... ... ... 255 
 
 45 & 46 Vict., c. 75 (Married Women's Property Act, 
 
 1882) ... 2, 17, 18, 19, 87 
 
 46 & 47 Vict., c. 15 (Lands Clauses (Umpire) Act, 1883) 352 
 
 46 & 47 Vict., c. 37 (Public Health Act, 1875 (Support of 
 
 Sewers) Amendment Act, 
 
 1883) 217,363 
 
 47 & 48 Vict., c. 14 (Married Women's Property Act, 
 
 1884) ... ... ... 17 
 
 47 & 48 Vict., c. 18 (Settled Land Act, 1884) ... 263, 265 
 
 47 & 48 Vict., c. 54 (Yorkshire Registries Act, 1884) 258,327 
 
 50 & 51 Vict., c. 73 (Copyhold Act, 1887) ... ... 284 
 
 51 & 52 Vict., c. 21 (Law of Distress Amendment Act, 
 
 1888) ... ... 365-367 
 
 51 & 62 Vict., c. 42 (Mortmain and Charitable Uses Act, 
 
 1888) 256,328 
 
 51 & 52 Vict., c. 43 (County Courts Act, 1888) ... 325, 366 
 
 51 & 62 Vict. c. 51 (Land Charges Registration and 
 
 Searches Act, 1888) ... 262, 264, 290
 
 TABLE OF STATUTES, 
 
 Ixxxv 
 
 51 & 52 Vict. 
 
 52 & 53 Vict. 
 52 & 53 Vict. 
 52 & 53 Vict. 
 
 52 & 53 Vict. 
 
 53 & 54 Vict. 
 
 53 & 54 Vict. 
 
 54 & 55 Vict. 
 
 o-l & 55 \'ict. 
 
 55 & 5(3 \ ict. 
 5G & 57 Vict. 
 
 oG & 57 Vict. 
 
 5(j ^- 57 Vict. 
 
 PAGIi 
 
 59 (Trustee Act, 1888) ... 324,340 
 
 7 (Inland Revenue Act, 1889) ... 25G 
 
 30 (Board of Agriculture Act, 1889 ... 255 
 
 45 (Factors Act, 1889) 103, 104, 149, 154, 
 
 174, 191-193 
 
 03 (Interpretation Act, 1889) ... ... 254 
 
 5 (Lunacy Act, 1890) ... 17,257,291 
 
 (39 (Settled Land Act, 1890) ... 284,334 
 
 39 (Stamp Act, 1891) 4, 239, 310, 326, 
 
 327, 3(3(3 
 
 04 (Land Registry (Middlesex Deeds) 
 
 Act, 1891) ... ... 258,327 
 
 57 (Private Street Works Act, 1892) ... 230 
 53 (Trustee Act, 1893) 311, 323-325, 339, 
 
 340, 344 
 03 (Married Women's Property Act, 
 
 1893) 17,19 
 
 71 (Sale of Goods Act, 1893) 
 
 119, 120, 121, 143 
 ... 120 
 
 121 
 
 41, 12, 44, 48, 5(3, 59, 84, 88, 91, 
 92, 120, 122, 123-126 
 
 127 
 
 ... 128 
 
 129 
 
 52, 55, 130, 20(J 
 
 54,131 
 
 ... 133 
 
 ... 132,134,211 
 
 51,135,211 
 
 ... 40,136,211 
 
 40, 00, 67, 08, 136, 137, 140, 
 
 211, 213 
 
 139,140,211,213 
 
 143 
 
 ... 144 
 
 ... 144-147,206 
 
 II 7, 168,180, 18() 
 
 .. 129,130,148 
 
 ... 103,149,151 
 
 ... 149,152 
 
 149,153 
 ... 149, 153, 154, 174,191 
 
 s. 
 
 1 
 
 s. 
 
 2 
 
 s. 
 
 3 
 
 s. 
 
 4 
 
 s. 
 
 5 
 
 s. 
 
 6 
 
 s. 
 
 7 
 
 s. 
 
 8 
 
 s. 
 
 9 
 
 s. 
 
 10 
 
 s. 
 
 11 
 
 s. 
 
 12 
 
 s. 
 
 13 
 
 s. 
 
 14 
 
 s. 
 
 15 
 
 s. 
 
 16 
 
 s. 
 
 17 
 
 s. 
 
 18 
 
 s. 
 
 19 
 
 s. 
 
 20 
 
 .ss. 
 
 21, 22 
 
 s. 
 
 23 
 
 s. 
 
 24 
 
 s. 
 
 25
 
 IxXXVi TABLE OF STATUTES. 
 
 56 & 57 Vict., c. 71 — Continued. 
 
 
 
 PAGE 
 
 s. 26 
 
 155 
 
 s. 27 
 
 ... 129,130,156 
 
 s. 28 
 
 ... 156, 157,175, 176,206 
 
 s. 29 
 
 158-162,168,175 
 
 s. 30 
 
 24,30,163-165,211 
 
 s. 31 
 
 165-168 
 
 s. 32 
 
 168,169 
 
 s. 33 
 
 168-170 
 
 s. 34 
 
 170,171 
 
 s. 35 
 
 171,172 
 
 s. 36 
 
 172 
 
 s. 37 
 
 172, 173, 204 
 
 s. 38 
 
 174,183 
 
 s. 39 
 
 174 
 
 s. 41 
 
 125,174,177,180 
 
 s. 42 
 
 174,177-179 
 
 s. 43 
 
 174,177,179,180 
 
 s. 44 
 
 174,182-185 
 
 s. 45 
 
 174,182,185-189 
 
 s. 46 
 
 174, 182, 190 
 
 s. 47 
 
 177,182,191-194 
 
 s. 48 
 
 182, 194, 195 
 
 s. 49 
 
 175, 196', 197, 199,200 
 
 s. 50 
 
 ... 197,201-204 
 
 s. 51 
 
 204-208 
 
 s. 62 
 
 208,209 
 
 s. 53 
 
 ... 200,209-211 
 
 s. 54 
 
 202,212 
 
 s. 55 
 
 ... 40, 122, 148, 170, 177, 191, 206 
 
 s. 56 
 
 172 
 
 s. 58 
 
 22,34,38,78,141 
 
 s. 61 
 
 68,119,120 
 
 s. 62 
 
 ... 42,43,44,120,133,151,157, 
 
 
 162, 178, 184, 191, 192, 194, 
 
 
 197, 210 
 
 57 & 58 Vict., c. 10 (Trustee . 
 
 ^ct, 1894) 
 
 s. 3 
 
 339,344 
 
 57 & 58 Vict., c. 30 (Finance 
 
 Act, 1894) ... 256,258 
 
 57 & 58 Vict., c. 46 (Copyhold 
 
 Act, 1894) ... 255,284 
 
 57 & 58 c. 60 (.Merchant Shipping Act, 1894) ... 3G, 120 
 
 58 &■ 69 Vict., c. 11 (Lands CI 
 
 auses (Taxation of Costs) 
 
 
 Act, 1895) 362 
 
 60 & 61 Vict., c. 65 (Land Tra 
 
 nsfer Act, 1897) ... 250, 251, 259, 
 
 
 266-272, 284, 285, 322, 327, 342
 
 TABLE OF STATUTES. Ixxxvij 
 
 PAGE 
 
 63 & 64 Vict., c. 26 (Land Charges Act, 1900) ... 263, 290 
 
 7 Edw. VII., c. 18 (Married Women's Property Act, 
 
 1907) ... ... ... 17,19 
 
 7 Edw. VII., c. 23 (Criminal Appeal Act, 1908) ... ... 153 
 
 8 Edw. VII., c. 27 (Married Women's Property Act, 1908) 17 
 8 Edw. Vn., c. 36 (Small Moldini^s and Allotments Act, 
 
 1908)* ... ... 13,360 
 
 8 Edw. VII., c. 69 (Companies (Consolidation) Act, 1908) 
 
 12, 13, 36, 87, 288, 289 
 10 Edw. VII., c. 8 (Finance (1909-10) Act, 1910) ... 326, 327 
 
 1 &• 2 Geo. v., c. 37 (Conveyancing Act, 1911) 
 
 284, 319, 342, 344, 345 
 4 8i 5 Geo. V., c. 59 (Bankruptcy Act, 1914) 
 
 116, 149, 254, 255, 264, 286, 287, 288, 320 
 G & 7 Geo. v., c. 50 (Larceny Act, 1916) ... ... 153 
 
 9 & 10 Geo. v., c. 57 (Acquisition of Land (Assessment 
 
 of Compensation) Act, 1919) 
 
 352, 361
 
 PART I. 
 
 GENERAL PRINCIPLES OF THE LAW OF 
 CONTRACT. 
 
 CHAPTER L 
 NATURE OF CONTRACT OF SALE. 
 
 Section 1 — Ix Gi^nkkal., 
 
 Definition'. — A contract of sale is an agreement 
 enfoit:eable at law whereby the ownership of the 
 subject-matter of the contract is transferred from the 
 vendor to the purchaser in consideration of a mone)' 
 price. 
 
 The essentials of a valid contract of sale are thus : 
 {a) Mutual assent — a consensus ad idon as between 
 \endor and purchaser; (b) competency to contract on 
 the part of both vendor and purchaser ; (c) a transfer 
 of the ownership of the subject-matter of the contract; 
 (d) a price in money paid or promised. If any of these 
 essentials be wantin*^, there is no sale. The first and 
 second of these essentials are common to all contracts, 
 and will be considered later. 
 
 Transfer of Ownership. — A contract of sale is a 
 contract plus a transfer of ownership. An agreement 
 to sell or bu\', t)r an executory contract, as it is called, 
 i.e., a contract whollv unperformed, or in which there 
 remains something to be done on both sides before the 
 ownership passes, is a contract pure and simple, and 
 gives rise merelv to a personal bond between the vendor 
 and purchaser. But a completed or executed contract 
 of siile effects a transfer of ownership with all the 
 advantages and risks incident thereto. By an agree- 
 ment to sell or buy, a right in personam is created; by 
 a sale a right in ron is transferred. Thus, where an 
 
 1
 
 VENDORS AND PURCHASERS. 
 
 agreement to sell is broken b}' the seller, the buyer has 
 only a remedy in damages against the seller; the 
 goods are still the property of the seller, and he may 
 dispose of them as he pleases. Similarly, where an 
 agreement to buy is broken, the seller's only remedy 
 is an action for damages. If there has been a sale and 
 the seller does not deliver the goods the buyer has not 
 only a personal remedy in damages against the seller, 
 but also the usual proprietary remedies in respect of 
 the goods themselves, such as the actions for conver- 
 sion and detinue, for though delivery has not been 
 made, the goods are the property of the buyer. Simi- 
 larly, if on a sale the buyer makes default in payment, 
 the seller may sue for the contract price. Again, on 
 an agreement to sell, if the goods perish, the loss as 
 a rule falls on the seller; whereas, on a sale, the loss, 
 as a rule, falls on the buyer. 
 
 An agreement to sell usually implies an agreement 
 to buy. Sometimes, however, the buyer may ^ have 
 only an option to buy;^ or the seller may have only 
 an option to sell.^ In such cases an actual sale does 
 not arise unless and until the option is exercised. In 
 neither ease can the person having a mere option be 
 treated as liable on an executory contract. 
 
 As a general rule, the vendor and the purchaser must 
 be different persons ; otherwise there can be no transfer 
 of ownership. At common law there could be no 
 contract of sale between husband and wife, since, in 
 contemplation of law, husband and wife were but one 
 person ; but this is no longer the case since the 
 Married Women's Property Act, 1882.' And as a 
 company is, in the eye of the law, a different person 
 from the members of the company, the members may 
 sell to themselves as a company, and the company may 
 sell to any of its members. But there is no transfer of 
 ownership where owners put up their property for sale 
 by auction, and their agent, in order to prevent a loss, 
 bids in for it. 
 
 ' Helby v. Matthews (1895) A.C. 471 ; Belsize Motor Supply Co. 
 V. Cox (1914) 1 K.B. 244 ; and see Marten v. Whale (1917) 2 K.B. 480. 
 
 - Matuiers v. Williams (1849) 4 Exch. 339. 
 
 ' 45 and 46 Vict. c. 75 ; and see Chap. II. post, pp. 17-19 ; and see 
 Ramsay v. Margrett (1894) 2 Q.B. 18.
 
 NATURE OF CONTRACT 01-' SALK. 3 
 
 It may happen that one person is invested by common 
 law or by statute Avith powers to sell the floods of 
 another; as where ^oods are sold under a distress or 
 execution, or by a pledgee, or a trustee in bankruptcy. 
 In such cases the owner may purchase his own floods, 
 since, in fact, the seller is a difterent person.' But the 
 seller, in such cases, cannot, as a rule, be the purchaser, 
 though he is sellin^r property in which he has no 
 beneficial ri_<::;"ht, bein<x (lebarred from so doino;- on 
 .grounds of j^ublic polic\', because of his fiduciary 
 ])osition." 
 
 A thinq; may, in some cases, be said to have in a 
 certain sense two owners, one of whom has the i^'eneral, 
 and the other a special, property in it. In the ca.se of 
 a plpd,Lre, the general property remains in the pledgor, 
 while the special property is in the pledgee. The owner 
 in such a ca.se may transfer the general property in the 
 thing to another person, subject to the .special property 
 that remains in the pledgee. Again, the right of pro- 
 perty in a thing may be distinct from the right to 
 its present possession, as in the case of a lien or a 
 mortgage. A transfer of the special property in a thing 
 does not constitute a sale of the thing. 
 
 Price in Money. — The consideration on a sale must 
 be money paid or promised, according as the contract 
 may be for a cash or a credit sale. If any other con- 
 sideration than money be given, the contract is not one 
 of sale, though it may }'et be a contract for the transfer 
 of the general property in the subject-matter of the 
 contract. 
 
 The money must be given as die price, thai is to say, 
 as a quid pro quo on a transfer of propert\- on a sale. 
 Every transaction involving a transfer of property and 
 a payment does not necessarily constitute a .sale; for 
 the payment may be merely the motive for giving some 
 benefit b\- agreement or otherwise.'' 
 
 ' Kitson V. Hardwick (1872) L.R. 7 C.P. 473; cf. Annstrottg v. 
 Jackson (1917) 2 K.B. 822. 
 
 * Henderson v. Astzcood (1894) .\.C. 150; Moore. Ncttlcfold and Co. 
 V. Singer Mmiiitactiirinn Co. (1904) 1 K.H. 820; Plasycocd Collieries 
 Co. V. Partridge, Jones & Co. (1912) 2 K.B. 345. 
 
 •'» Dcnn d. Manifold v. Diamond (1825) 4 B. & C. 243; Massey v, 
 Nanney (1837) 3 Bing. N.C. 478.
 
 VENDORS AND PURCHASERS. 
 
 Section 2 — Sales Distinguished from Other 
 Transactions. 
 
 Nature of Transaction a Question of Intention. 
 — Transfers of property under circumstances which may 
 or may not amount to a sale give rise in law to important 
 distinctions. An agreement to transfer property on 
 payment of a certain sum of money will not be treated 
 as a sale if it can be shown that so to treat it would be 
 contrary to the intention of the parties;^ and the 
 question of intention is to be determined by a proper 
 construction of the contract in view of all the surround- 
 ing circumstances. 
 
 The requisites of a valid sale as set forth above 
 should furnish sufficient criteria for most of the cases 
 which arise ; but for the sake of clearness the general 
 distinctions to be drawn between contracts of sale and 
 cognate transactions will now be discussed. 
 
 Exchange or Barter. — Where the consideration for 
 the transfer of property is not a money price paid or 
 promised, but consists of other property or some other 
 valuable consideration, the transaction is one of 
 exchange or barter." In certain circumstances, how- 
 ever, such a transaction may be treated as one of sale. 
 Thus, if goods are to be paid for by money and other 
 goods on which a fixed price is put, the contract mav 
 be treated as one of sale for the aggregate sum as the 
 price ;^ and for the purposes of the Stamp Act, 1891,* 
 transfers in exchange for money's worth are " convey- 
 ances on sale."^ 
 
 Bailment. — A sale involves a transfer of ownership ; 
 a bailment involves a transfer of possession onlv, the 
 ownership remaining continuouslv in the same person. 
 Where possession of a thing is transferred with an 
 understanding that the identical thing is to be returned 
 either in the same or an altered form, the transaction 
 
 ' Senecal v. Pauze (1889) 14 App. Cas. 637, P.O. 
 
 ^ See Harrison v. Luke (1845) 14 M. & W. 139; Aldridgc v. Johnson 
 (1857) 26 L.J. Q.B. 296 ; Sheldon v. Cox (1824) 3 B. & C. 420. 
 * Hands v. Burton (1808) 9 East 349. 
 ' 54 & 55 Vict. c. 39. 
 « Inl. Rev. Cotnmrs. v. Maple & Co. (Paris), Ltd, (1908) A.C. 22-
 
 NATURIC Of COMRACl UK SALE. 
 
 is one of bailment; but Avhere there is no oblii^ation 
 to return tlie identical thini;- and the transferee may 
 dischari^e his obligation by delixery of another thing 
 as an equivalent or by payment of a sum of money, 
 then the trans^ution is one of exchange or sale, as the 
 case may be, and the ownership is transferred. 
 
 Contracts ok Sam-: or Rkturn or on Approval. — 
 Wiiere goods are delivered to a person under a contract 
 giving him the option of paying their value and keeping 
 the goods or of returning them if they prove unsatisfac- 
 tory, the transferee holds the goods as bailee and not as 
 owner until the expiration of the stipulated time for 
 exercising his option, or, in cases where no time is 
 stipulated, until the expiration of a reasonable time. 
 But this rule does not apply where the privilege of pur- 
 chase or return is not dependent on the suitableness of 
 the property transferred, but depends solely on the 
 option of the purchaser. This latter class of transac- 
 tions is known as " contracts of sale or return," and the 
 ownership passes to the transferee on delivery of the 
 thing, subject to his option to return the thing within 
 a specitied time or a reasonable time.' 
 
 These rules are subject to any special agreement whicii 
 the parties may make, and the transaction is a sale or 
 bailment according as the agreement is that the title 
 shall pass or shall not pass on delivery of the property. 
 In either class of cases, upon failure to exercise the 
 oj^tion of returning the goods within the time limited, 
 the transaction becomes an absolute sale. So also the 
 sale becomes absolute at any time when the option to 
 keep the thing is definitely exercised, and it ma\" be 
 so exercised either expressly or by necessar}- imi:)lica- 
 tion. 
 
 i"*i,i:r)Gi-: or Pawn. — A pledge is a mere bailment, and 
 the general property in the thing pledged does not pass 
 with the possession to the pledgee. In this respect it 
 differs from both a mortgage and a .sale. A pledge 
 includes a common law lien, but whereas a pledge 
 carries with it a power of sale, subject to certain con- 
 ditions, a lien merelv confers a right of retainer by 
 wav of .security. 
 
 ' SeeNeatev.Ball.l East 117; Mossv. Sweet (1851) 16 Q.B. 493; 
 Eipiuck V. Barnes (18S0) 5 C.P.D. 321.
 
 VENDORS AND PURCHASERS. 
 
 Mortgage. — A mortgage involves the transfer of 
 ownership in the hind or chattel mortgaged as a 
 security for the payment of money and on condition 
 tiiat, when the money is paid, the property shall be 
 re-transferred to tiie mortgagor/ 
 
 A mortgage is sometimes called a conditional sale, 
 but a sale subject to a condition for re-sale to the original 
 owner is distinguishable from a mortgage.' Whether 
 anv particular transaction is a mortgage properly so 
 called, or a sale with an option of re-purchase, depends 
 on the special circumstances of the case, parol evidence 
 being admissible to show that what on the face of it 
 appears to be an absolute conveyance was, in fact, 
 intended bv the parties to be by way of security only. 
 That the conveyance, though absolute in form, was in 
 fact in the nature of a mortgage, may appear from such 
 circumstances as that the purcha.se-money so-called 
 would be grossly inadequate as the price of sale,^ or 
 that the so-called purchaser was not let into immediate 
 possession, or, if let into possession, accoimted for 
 the rents to the so-called vendor, and only retained 
 an amount equivalent to his interest.* The question 
 in every case is what was the real intention of the 
 parties.^ If the transaction is really a sale, the time 
 limited for the exercise of the right of re-purchase must 
 be strictly observ^ed. If the option of re-purchase is. 
 in substance, a proviso for redemption of the property, 
 it is exercisable even after the stipulated time has 
 elapsed; and stipulations which even indirectlv tend 
 to have the effect of making the mortgage irredeemable 
 are bad and unenforceable. 
 
 Gift. — A gift is a transfer of properly without con- 
 sideration.' 
 
 > Keith V. Burrows (1876) 1 C.P.D. 722 ; Re Hardxcick (1886) 17 
 Q.B.D. 090: ReMorritt (1886) 18 Q.B.D. 222. 
 
 " Beckett V. Tower Assets Co. (1891) 1 Q.P.. 1 ; cf. Manchester, &c. 
 Rly. Coy. v. North Central Wai^on Coy., infra. 
 
 •'' Douglas V. Cnlvcrwell (1862) 31 L.J. Ch. 65. 
 
 ' Re Walden, ex parte Odell (1878) 10 Ch. D. 76. 
 
 •'' See M. S. & L. Rly. Coy. v. North Central \Va<<on Co\. (18S8) 
 13 A.C. 554. 568. 
 
 " See Re Seymour {\0\ 5) 1 Ch. 475; Cochrane v. Moore (1890) 25 
 Q.H.D. 57 ; Kilpin v. Ratley (1892) 1 Q.B.D. 582; Cain v. Moore 
 (1896) 2 g.H. 283; Stoncham v. Stonelnnn (1919) 1 Ch. 149.
 
 NATURK OF CONTRACT OF SALE. 
 
 Assignments. — The term " assignment " indicates a 
 transfer of property, or of interest, and, broadly speaU- 
 xns^, includes a contract of sale. 
 
 Consignments. — Where goods are consigned to be 
 sold for the consignor, who is to regulate the price and 
 terms of sale, the consignee is an agent and the contract 
 between the consignor and consignee is one of bail- 
 ment ; even though the consignment is made on a del 
 credere commission, i.e., where the agent undertakes 
 to indemnify his principal against failure of perform- 
 ance on the part of the purchasers. But a consignee 
 who is at liberty according to the contract between 
 him and his consignor to sell at any price he likes and 
 to receive payment at any time he likes, but is bound, 
 if he sells his goods, to pay the consignor for them at 
 a fixed price and at a fixed time, is not a del credere 
 agent, but a principal, and the contract is one of sale. 
 It is immaterial that the parties designate their relation- 
 ship by the term " agency.'" 
 
 AciENCY. — The word " agency " in its prim a facie 
 sense seems to imply the relation of principal and 
 representative, and not of vendor and purchaser; but 
 it is often used in commercial matters where the real 
 relationship is that of vendor and purchaser. Since the 
 relation of principal and agent requires the consensus 
 of both parties, whether a contract is one of sale or 
 merelv creates an agency for sale depends upon the 
 intention of the parties." 
 
 An agent for sale or purchase is to sell or buy 
 according to the instructions of his principal, and to 
 make such contracts as he is authorised to make for 
 him.* Thus, if A delivers goods to B for sale at a 
 fixed price and subject to certain terms, and B sells 
 such goods in consideration of a commission to be paid 
 by A, and accounts to A in respect of such sales, then 
 B is A's agent. If, however, B is given an option to 
 pay for the goods at a price fixed by A, and is free to 
 
 ' Towle (John) & Co. v. Whits (1873) 29 L.T. 78. 
 
 - Re Nevill. ex parte White (1871) 6 Ch. App. 397; Marlruicl: v. 
 Hardingham (1880) 15 Ch. D. 339. 
 
 * See generally, Chapter VI. post, on Contracts of Agents, p. 83 
 ct scq.
 
 8 VENDORS AND PURCHASERS. 
 
 dispose of them as he thinks fit, the transaction is one 
 of sale.' 
 
 Contracts for Work and Materials. — Where two 
 persons enter into a contract whereby the one is to do 
 work and expend labour upon materials in order to 
 produce a certain chattel to be delivered to the other, 
 it is sometimes a matter of difficulty to determine 
 whether the contract is one of sale or one for work and 
 materials. Applying the distinctive characteristic of 
 a contract of sale, it follows that if the workman supplies 
 all the materials, the contract is prima facie one of sale; 
 for the completed chattel is made up of materials in 
 which the other had no previous property. If, on the 
 other hand, the workman only does work and expends 
 labour on materials supplied by the other, then the 
 contract is prima facie one for work and labour.^ 
 
 But these rules are not capable of more than general 
 application. Thus, where a printer prints a book for 
 an author, or an attorney draws up a deed for a client, 
 the materials — the paper — being supplied by the printer 
 or attorney respectively, the contract is one for work 
 and labour, for here the material is merely ancillary to 
 the work and labour.' 
 
 Questions of extreme difficulty sometimes arise where 
 part of the materials are supplied by both parties. But 
 where A contracts with B for the manufacture of certain 
 goods, and A supplies B with part of the materials; 
 if it is agreed that the price of A's materials is to be 
 deducted from the cost of the manufactured goods when 
 sold by B to A, then the contract is one of sale.* 
 
 ' See Re Nevill. ex parte White (1871) 6 Ch. App. 397. 
 
 "^ See Lee v. Griffin (ISGl) 30 L.J. Q.B. 252. 
 
 •■' Clay V. Yates (1856) 1 H. & N. 73. 
 
 'See Dr.voH v. The London Small Arms Coy. (1876) 1 App. Cas.
 
 CHAPTER II. 
 PARTIES TO CONTRACT. 
 
 SiXTiox 1 — Gknkrally. 
 
 Number of Parties. — Every contnict of sale necessarily 
 requires at least two independent parties — a vendor and 
 a purchaser ;' and they must be in existence" and capable 
 of contracting- at the time of making the contract. Thus, 
 a company which has not yet been formed cannot be 
 a party to a contract, "* though when formed and entitled 
 to commence business it may make a contract adopting 
 the terms of a contract made b}^ the promoter,* provided 
 the contract is one which is not ultra vires the company ; 
 and if an agent contracts on behalf of a principal who, 
 at the time of making the contract, was not in existence 
 or was incapable of contracting, the agent is alone liable 
 thereon.^ 
 
 Parties Affected by Contract. — As a general rule, 
 the contract affects only the parties to it ; it can create 
 no right or liability in a person who is not a party to 
 it. And conditions cannot be imposed on a contract 
 for the sale of goods so as to bind persons who may 
 purchase the goods from the original buyer and be 
 enforceable against them by the original seller.* 
 
 It follows from the general rule stated above, that 
 when proceedings are taken in respect of a contract, the 
 parties to the contract are alone the proper parties to 
 sue or be sued ;' though one of several parties may be 
 
 1 SeeDe Tastet v. Shaw (1818) 1 B. and Aid. 664; Ellis v. Kerr 
 (1910) 1 Ch. 529; Napier v. Williams (1911) 1 Ch. 361. 
 
 2 Kelsey v. Dodd (1882) 52 L.J.. Ch. 39. 
 
 ■' Kelner y. Baxter (1866) 2 C.P. 174; The Eiiipress Engineering 
 Coy. (1880) 16 Ch. D. 125. 
 
 * Howard v. Patent Ivory Coy. (1887) 38 Ch. D. 156. 
 
 •'' Kelner v. Baxter, supra. 
 
 " McGruther v. Pitcher (1904) 2 Ch. 306. 
 
 ■ Taskerv. Small (1837) 3 M. & Cr. 63; Markliaiii v. Paget (1908) 
 1 Ch. 697.
 
 10 VKNDORS AND PURCHASERS. 
 
 appointed to take proceedings on behalf of some against 
 the others.' Accordingly, the purchaser from a mort- 
 gagor of a mortgaged estate may sue the vendor for 
 specific performance without joining the mortgagee as 
 a party, though his concurrence may be necessary for 
 the conveyance;' and a mortgagee selling under a 
 power of sale may sue the purchaser for specific per- 
 formance without joining the mortgagor/ 
 
 In certain circumstances, however, the rights and 
 liabilities created by a contract may pass to a person 
 or persons other than the original parties to it either 
 bv the voluntary act of the parties themselves or in 
 certain events by the operation of rules of law or of 
 ec|uity.'' Thus, a beneficiary may claim through his 
 trustee; a principal may be able to claim or be charged 
 through his agent ; an executor may claim or be charged 
 as personal representative of the testator; a trustee in 
 bankruptcy may claim or be charged on contracts made 
 bv the bankrupt. 
 
 Sixth )x 2 — Capacity to Coxtract, 
 
 Gf:NERAL Rule, — As a rule, every natural-born person 
 of the age of twenty-one or upwards of sound and sober 
 mind enjoys full capacity to contract. But certain 
 classes of persons are in law incompetent to contract 
 or are only capable of contracting to a limited extent or 
 in a particular manner. Contracts entered into by such 
 persons are in .some cases void, i.e., destitute of legal 
 effect, and in other cases are voidable at the option of 
 the party suffering from the incapacity or his represen- 
 tative. 
 
 .\i.ii:xs.— Since the Naturalization Act. 1870/ real 
 and personal property of every description, except 
 British .ships, may be held, acquired and dispo.sed of 
 by an alien in the same manner in all respects as by* a 
 
 ' Radeiihurst v. Bates (1826) 3 Bing. 463. 
 
 ■■' Tnsker v. Small (1837) 3 M. & Cr. 63. 
 
 •' Corder v. ^Jol■^iall (1811) 18 Yes. 344; Harry v. Davcy (1876) 2 Ch. 
 \). 721. 
 
 * See Chapter VII, ^o.s7, p. 110 et seq. 
 '■ ii Vict. c. 14.
 
 PAKTII.S TO CONTRACT. 11 
 
 natural-born British subject; and aliens are not there- 
 fore, under any incapacit}- wiili respect to making 
 contracts with British subjects. 
 
 An alien enemy, or British subject adhering to the 
 King's enemies, cannot, without license from the 
 Crown, make any fresli contract or enforce any existing 
 contract during the continuance of hostilities; but his 
 rights as to contracts made before the commencement 
 of war are suspended, not annulled, and can be enforced 
 (subject to the effect of the Statute of Limitations) upon 
 the conclusion of peace. 
 
 CoxviCTS. — A convict, i.e., a person against whom 
 judgment of death or of penal servitude shall 
 have been pronounced upon any charge of treason or 
 felony, may not bring any action at law or suit in equity 
 for the recovery of any property, debt or damage ; nor 
 can a convict alienate or charge any property, or make 
 a contract. But the Crown mav appoint an adminis- 
 trator of an}- convict's propertv, and upon such appoint- 
 ment all the real and personal property to which the 
 convict is entitled at the time of his conviction or 
 becomes entitled during the continuance of his convic- 
 tion, vests in the administrator, who has absolute power 
 to sell, convey and transfer any part of such property 
 as he thinks fit, and to enforce contracts made by the 
 convict previous to his conviction. The capacity of 
 the convict as to propertv and contract is restored by a 
 pardon or by completion of the sentence imposed. 
 
 Corporations and Companies. — In contemplation of 
 law, a corporation is a legal persona distinct and 
 separate from the members or shareholders who com- 
 pose it.' Therefore, a sale by a person to a corporation 
 of which he is a member is not, either in form or in 
 substance, a sale by a person to himself.' 
 
 Since a corporation is invested with this purely artifi- 
 cial personalit}', it must contract by means of an agent;' 
 and must give some formal evidence of the a.ssent of its 
 members to any legal act which, as a corporation, it 
 
 ' See Salomon v. Salomon & Co. (1897) A.C. 22, per Lord 
 Macnaghten. 
 
 - Farrer v. Farrer (188S) 40 Ch. D. 395. 
 
 '^ Ferguson v. Wilson (18C6) 2 Ch. 89.
 
 12 VENDORS AND PURCHASERS. 
 
 may perform. A corporation must, therefore, as a rule, 
 contract under seal ;' but matters of trifling importance, 
 or dailv occurrence, or urijent necessity, do not require 
 this formality." 
 
 TradiniT corporations may, through their agents, 
 enter into simple contracts, i.e., contracts not under 
 seal, relating to the objects for which they were created." 
 Companies incorporated under the Companies Acts, 
 1908-1917, mav enter, through their agents, into con- 
 tracts in writing or by parol, in cases where such con- 
 tracts could be entered into by private persons in like 
 manner.' 
 
 Where a contract purporting to have been made on 
 behalf of a corporation is void at law for want of a deed, 
 the agreement is not enforceable in equity on the ground 
 that the corporation has had the benefit of it ;" but a 
 corporation may be affected by the equities arising from 
 part performance of a parol agreement for the sale of 
 land.'' provided that the contract is not ultra vires the 
 corporation. 
 
 It would appear that where a corporation has done 
 all that it was bound to do under a simple contract it 
 may in like manner sue the other partv for a non- 
 performance of his part." But a part performance of 
 a contract by a corporation will not take the case out 
 of the general rule and entitle it to sue.* 
 
 By the Public Health Act, 1875, sect. 174, contracts 
 of an urban authority of a value or amount exceeding 
 £50 must be under seal, .so that the exceptions noted 
 above have no application in such cases. An urban 
 authority may therefore take the full benefit of such 
 contracts and yet set up afterwards the absence of a 
 .seal as a defence.^ 
 
 ' Liidlo'u- Corporation v. Charlton (1840) 6 M. & W. 815. 
 
 '^ Ibid. : Church v. Imperial Gas Coy. (1838) 6 A. & E. 846. 
 
 •' Ihid. 
 
 ' The Companies (Consol.) Act, 1908. sect. 76. 
 
 ■' Hunt V. Wiviblciion Local Board, 3 C.P.D. 208; 4 C.P.D. 48. 
 
 « Wilson V. West Hartlepool Rly. Coy., 34 Beav. 187. 
 
 ' Fishmongers' Coy. v. Robertson, 5 M. & W., 192. 
 
 " Kidderminster v. Harduick, L.R. 9 Ex. 24. 
 
 " Young V. Leamington Corpn., 8 App. Cas. 517.
 
 PARTI i:S TO CONTRACT. 13 
 
 A distinction must be drawn between corporations 
 at common laA\ , i.e., created by ciiarter, and corpcjra- 
 tions created by or in pursuance of statute. Corpora- 
 tions of the first class can deal with their property or 
 bind themselves by contrjict like ordinary persons, 
 subject to such special directions given in the charter 
 as might make certain contracts inconsistent with the 
 objects of its creation. Corporations of the second class 
 are limited to the exercise of such powers as are actually 
 conferred either expressly or impliedly by the statute. 
 Thus, a company incorporated under the Companies 
 Acts is bound b\' the terms of its Memorandum of 
 Association to make no contracts inconsistent with or 
 foreign to the objects set forth in the Memorandum. 
 A contract ultra vires the corporation is void, not 
 on the ground of illegality, but on the ground of 
 incapacity. 
 
 The capacitv of a corporation to hold and dispose of 
 land is similar to its capacity to contract generally.' 
 The giving of land in mortmain to a corporation being 
 forbidden by statute, a corporation can only hold land 
 where speciallv authorised to do so either by license 
 from the Crown or by statute. 
 
 The statutes authorising corporations to accjuire lands 
 are numerous. Municipal bodies, for example, have 
 authoritN- to acquire lands for such purposes as the 
 supply of small holdings and allotments, the adminis- 
 tration of Public Health Acts, and for educational pur- 
 poses. Under the Companies Act, 1908, every joint 
 stock company may hold land ; but no compan}^ formed 
 for the purpose of promoting art, science, religion, 
 charity or any other like object mav hold more than two 
 acres, except with the consent of the Board of Trade. 
 
 Infants. — At common law all contracts entered into 
 bv an infant, i.e., a person under the age of twent\- 
 one years, were voidable by him' (but not by the other 
 party) both during and within a reasonable time after 
 his infancy, except contracts for necessaries and certain 
 contracts for the infant's benefit. These voidable con- 
 tracts comprised two classes : (a) those which were 
 
 ' Case of Sutton's Hospital, 10 Kep. 23. 
 '-' See post. p. 15.
 
 14 VKNDORS AND PURCHASERS. 
 
 valid unless disaffirmed by the infant within a reason- 
 able time after his infancy, and (h) those which were 
 invalid unless ratified by the infant within a reasonable 
 time after his infancy. Thus, where an infant acquired 
 an interest in permanent property to which obligations 
 attach, or entered into a contract which involves con- 
 tinuous rights and duties, benefits and liabilities, and 
 took some benefit under the contract, he would be bound, 
 unless he expressly disclaimed the contract ; but where 
 the contract was not continuous in its operation, the 
 infant was not bound unless he expressly ratified it 
 upon coming of age. 
 
 The Infants' Relief Act of 1874 provided that — 
 
 (1) All contracts, whether by specialty or by simple 
 
 contract, henceforth entered into by infants 
 for the repayment of money lent or to be lent, 
 or for goods supplied or to be supplied (other 
 than contracts for necessaries), and all accounts 
 stated with infants, shall be absolutely void; 
 provided always that this enactment shall not 
 invalidate any contract into which an infant 
 may by any existing or future statute, or by 
 the rules of common law or equity, enter, 
 except such as now by law are voidable ; and 
 
 (2) Xo action shall be brought wherebv to charge 
 
 any person upon any promise made after full 
 age to pay any debt contracted during infancy, 
 or upon any ratification made after full age 
 of any promise or contract made during 
 infancy, whether there shall or shall not be any 
 new consideration for such promise or ratifica- 
 tion after full age. 
 
 The first section (apart from the two exceptions which 
 it makes) has been strictly construed; it makes void 
 only the particular contracts therein specified; and it 
 would appear that the meaning of the proviso is that 
 the enactment shall not be deemed to extend further 
 and render void any contract by an infant which was 
 not formerly voidable.' Thus, a sale of goods by an 
 infant is not made void b}' this section, but is still only 
 
 ' See Duncan v. Dixon '1890) 44 Ch. D. 211.
 
 PARTIES TO CONTRACT. 15 
 
 voiclal)le at the infant's option.' Xo aiitli(jrit\- exists or. 
 the point as to whether the Act makes a contract of sale 
 of goods other than necessaries void as against the 
 seller to the infant." But, where goods have been 
 delivered to an infant, and the infant has paid the price, 
 or part of it, he cannot recover the money if he has 
 enjoyed any substantial benetit from the consideration ; 
 as where an infant who had agreed to take a house and 
 to pay £102 for the furniture, and had paid £68 in cash, 
 was held not to be entitled to recover the sum paid, as 
 he had occupied the house and had used the furniture 
 for some months." 
 
 The second section, prohibiting any action upon the 
 ratification of an infant's contract, applies to all con- 
 tracts of that class which at common law were invalid 
 until affirmed. The Act does not apply to contracts of 
 the class which at common law were valid unless 
 repudiated within a reasonable time after coming of 
 age.' Moreover, the Act does not prevent the parties 
 to a contract made during the infancy of one of them 
 from making a new contract to the same effect after the 
 infant comes of age.* 
 
 As a rule, when a contract is voidable at the infant's 
 option, the other party is firmly bound, and the infant 
 can enforce the contract either during infancy or after- 
 wards." But though damages may be recovered by the 
 infant, he cannot enforce specific performance of any 
 contract made by him on account of the want of 
 mutualitv of remedv between the other partv and him- 
 self.^ 
 
 An infant may purchase for cash or on credit a 
 supply of necessaries.^ Such a contract is, however, 
 onlv prima facie binding on the infant ; it must be also 
 
 > Cowern v. Nield (1912) 2 K.B. 419. 
 2 See Valentine v. Canali (1889) 24 Q.B.D. 166. 
 •• Ibid. 
 
 * See Goodc v. Harrison, 5 B. & A. 147 ; Carter v. Silber (1892) 2 Cli. 
 278; (1893) A.C. 360. 
 
 ^ See Northcote v. Dotighty, 4 C.P.D. 385. 
 ^ Warwicklv. Bruce. 2 M. & S. 205. 
 ^ Lumleyv. Ravcnscroft (1895) 1 Q.B. 683. 
 « Burghart v. Hall (1839) 4 M. & W. 727.
 
 IG VEN DORS AND PURCHASERS. 
 
 for his benefit. ' The word " necessaries " must be 
 regarded as a relative term, to be construed with refer- 
 ence to the infant's age, state and degree;' and the 
 Cfuestion whether goods supplied are necessaries is one 
 of fact to be determined by the jury,'' and the 07ius is 
 on the seller to show that the goods supplied are neces- 
 saries.' 
 
 Applying these general principles to sales and pur- 
 chases of land : a completed sale of land b}' an infant 
 is, as a rule, voidable at his option f he may recover 
 the land, and, it would appear, in the absence of fraud, 
 he cannot be obliged to refund the purchase-money/ 
 Similarly, a completed purchase of land by an infant 
 is voidable at his option ; but he cannot recover the 
 price paid unless he be in a position to make entire 
 restitution.' Thus, if an infant purchases leasehold 
 land, which is a wasting property, he cannot recover 
 the price paid for it.* If the infant buys land without 
 paying the whole or part of the purchase-money, he 
 holds the land subject to the vendor's lien thereon for 
 the amount unpaid.^ 
 
 Certain contracts by infants are valid; as where an 
 infant not under twenty if a male, and not under 
 seventeen if a female, may, with the consent of the 
 Court, make a valid marriage settlement; or where, 
 under various statutes, an infant may convey land for 
 religious, charitable and public purposes; or where 
 under the Settled Estates Act, 1887, the Court may 
 authorise sales or leases of any settled estate to which 
 the Act applies, on behalf of an infant; or where 
 similar powers are given by the Conveyancing Act, 
 1881 ; or where the powers of a tenant for life may, 
 
 ' Roberts v. Gray (1913) 1 K.B. 520. 
 - 2 Steph. Com. 307 (Ed. 1880). 
 ' Ryder V. Wombwell. L.R. 3 Ex 90. 
 ' Nashv. Inman (1908) 2 K.B. 1. 
 
 ■ Fliflht V. Holland (1828) 4 Russ. 298. 
 
 " See Chapman v. Michaelson (1909) 1 Ch. 238. 
 
 ■ Holmes V. lilogfl, 8 Taunt. 508 ; Valentine v. Canali, 24 Q.B.D. 166. 
 " Holmes v. Blogg, supra. 
 
 '■> Thurstan v. S'ottini<liani, etc. Bldg. Socy. (1902) 1 Ch. 1 ; (1903) 
 AC. 6.
 
 PAKTILS TO CONTRACT. 17 
 
 by the Settled l.and Act, 1882, be exercised by the 
 trustees of the settlement on behalf of an infant; or 
 where, under the custom of gavelkind, an infant of the 
 age of fifteen may dispose of his estate for adequate 
 valuable consideration by feoffment. 
 
 LuxATics AND DRUNKARDS. — A contract entered into 
 by a lunatic or a drunkard — other than a contract for 
 necessaries — is voidable by him, provided that at the 
 time of making the contract he was incapable of under- 
 standing what he was doing, and that the other party 
 was aware of his condition/ 
 
 Under the Lunacy Act, 1890, the Court may order 
 the property of persons, to whom the Act applies, to 
 be disposed of for certain purposes, e.g., the mainten- 
 ance of the lunatic or the pavment of his debts, or the 
 discharge of incumbrances on his property. 
 
 The committee of a lunatic, so found by inquisition, 
 who is a tenant for life, or has the powers of a tenant 
 for life under the Settled Land Acts may, under order 
 of the Court, exercise the powers given bv the Act on 
 the lunatic's behalf. 
 
 Married Women. — At common law, as a general 
 rule, the contracts of a married woman were void. In 
 some cases, however, a married woman could make a 
 valid contract, but she could not sue or be sued upon 
 it apart from her husband ; in other cases she could 
 sue. but could not be sued alone; in others she could 
 both sue and be sued alone. The law gave no adequate 
 remedy to the wife in case her husband neglected to 
 fulfil his obligation to maintain her, and for that reason 
 courts of equity departed from the rules of the common 
 law in certain cases, and allowed the wife to hold 
 property as her separate estate under certain conditions. 
 This equitable practice received legislative sanction in 
 the Married Women's Property Acts of 1870 and 1874, 
 replaced and extended by the Married Women's Pro- 
 perty Acts of 1882, 1884,' 1893, 1907 and 1908. 
 
 Under the equitable doctrine of the wife's separate 
 estate, property, both real and personal, might be held 
 in trust for the wife's separate use. L^sually this pro- 
 perty was settled on her with a restraint on anticipation, 
 
 ' See Baldwyn v. Smith (1900) I Ch. 588; Imperial Loan Co. v. 
 Stone (1892) 1 Q.B. 597, 601. 
 
 2
 
 18 VENDORS AND PURCHASERS. 
 
 in which case she could neither touch the corpus of the 
 property, nor anticipate payments of income by creating 
 future rights over them. Where there was no restraint, 
 then to the extent of the rights and interests created, 
 a married woman was treated by courts of equity as 
 having power to alienate her property and to contract, 
 but she could not sue or be sued alone in respect of 
 such estate, nor could she bind by contract any but the 
 estate of which she was in actual possession or control 
 at the time the liabilities accrued. 
 
 The Married Women's Property Acts of 1870 and 
 1874 specified various forms of property as the separate 
 estate of married women, and enabled them to sue for 
 such property and gave them all remedies for its pro- 
 tection that an unmarried woman w^ould have had under 
 the circumstances. The new- legal separate estate thus 
 constituted was not vested in trustees; and was limited 
 in character, and the married woman could not defend 
 alone any action brought concerning it; her husband 
 had to be joined as a party. 
 
 The Acts of 1870 and 1874 were repealed by the 
 Married Women's Property Act, 1882, which came into 
 force on the 1st day of January, 1883 ; but any rights 
 acquired or acts done under these Acts were not 
 affected. The Act of 1882 enacts that every w^oman 
 married after 1882, in respect of all real and personal 
 property belonging to her at the time of her marriage 
 or subsequently acquired, and every woman married 
 before 1883, in respect of all real and personal property, 
 her title to which, whether vested or contingent, and 
 whether in possession, reversion or remainder, accrued 
 after 1882, is entided to have, hold and dispose of such 
 property as her separate property as if she were a feme 
 sole without the inter^-ention of any trustee. But the 
 Act does not interfere with or render inoperative any 
 restriction against anticipation attached to the enjoy- 
 ment of any property by a woman under anv settlement, 
 will or other instrument. 
 
 The Act of 1882 further enacted that in respect of and 
 to the extent of her separate property a married woman 
 may enter into contracts and render herself liable there- 
 upon as though she were a feme sole. 
 
 Under the Act of 1882 it was held that, for her 
 contract to bind property which she afterw-ards
 
 PARTIES TO CON TRACT. 19 
 
 acquired, a married woman must have had, at the date 
 of the contract, some separate property free from 
 restraint on anticipation of such a character that the 
 Court would presume she intended to charge it with 
 fulfihiient of the contract,' and that as a widow cannot 
 have separate property the contract could not be 
 enforced during widowhood against property acquired 
 during that time." But the Married Women's 
 Property Act of 1893 provides that every contract 
 entered into after the 5th December, 1893, by a married 
 woman, otherwise than as agent, shall be deemed to be 
 a contract entered into by her with respect to and to 
 bind her separate property, whether she is or is not 
 in fact possessed of or entitled to any separate property 
 at the time when she enters into the contract; and 
 shall bind all separate property which she may at that 
 time or thereafter be possessed of or entitled to, and 
 shall be enforceable against all property which she may 
 thereafter during widowhood be possessed of or entitled 
 to. 
 
 Under the Act of 1882, the husband alone could still 
 by marriage settlement validly agree to settle property, 
 to Avhich his wife might become entitled, to the same 
 extent as he would have done by means of such a 
 covenant at common law^ unless the property were given 
 expressly for her separate use. By the Married 
 Women's Property Act, 1907, it was enacted that no 
 marriage settlement made after 1907 dealing with the 
 propertv of the wife, or intended wife, shall be valid 
 unless it is executed by her if she is of full age or 
 confirmed by her after she attains full age. If she dies 
 an infant, however, the settlement will bind any pro- 
 perty of hers to which her husband may become entitled 
 on her death and which he could have bound if the Act 
 had not been passed. 
 
 Where a married woman is tenant for life under the 
 Settled Land Acts, she may, if entided for her separate 
 use, exercise the powers of a tenant for life under the 
 Acts alone; if not so entitled, she must exercise them 
 in conjunction with her husband. 
 
 ' Palliscr V. Gnnicy 19 Q.B.D. 519. 
 
 - Sfogiion V. Lee (1891) 1 Q.B. 661 ; Beckett v. Tasker (1887) 19 
 Q.B D. 7.
 
 20 VENDORS AND PURCHASERS. 
 
 Section 3 — Persons Standing i\ Confidential or 
 Fiduciary Position/ 
 
 Solicitors, Guardians, Parents. — In certain cases, 
 Siiles of propertv may be voidable in equity because 
 one of the parties stands, either towards the other or 
 towards the beneficial owners, in some relation imposing 
 on him either a conditional or an absolute disability to 
 take under the contract. 
 
 In the case of transactions between solicitor and 
 client, guardian and ward, parent and child, a pre- 
 sumption arises that the client or ward or child, as the 
 case may be, has been subjected to undue influence, 
 and the transaction is prima facie voidable, but ma}' be 
 allowed to stand if the solicitor, or guardian, or parent, 
 as the case may be, discharges the onus which lies upon 
 him to prove that the other was not unduly influenced 
 and gave a perfectly free and full and true consent to 
 the contract. The solicitor, or guardian, or parent 
 must, therefore, make full disclosure of all circum- 
 stances, within his knowledge, which affect the value 
 of the property bought or sold. The incapacity of the 
 solicitor, or guardian, or parent is, therefore, only con- 
 ditional, and is removed on performance of the 
 condition.* 
 
 Trustees. — A trustee contracting to purchase his 
 cestui que trust's property is under the same obligation 
 as a solicitor buying from his client.^ He is bound to 
 take no undue advantage of the vendor, and is bound 
 to disclose every circumstance known to him that may 
 affect the value of the property. The sale is voidable 
 at the v^endor's option if the trustee fails to discharge 
 this obligation, and the onus is on the latter to show 
 that he has done so. If while acting as a trustee he 
 obtains information affecting the value of the trust 
 property, and he retires from the trust and afterwards 
 purchases the property from the beneficiary, the sale 
 is voidable at the latter's option if the information so 
 acquired by the trustee is not disclosed. 
 
 ' See Chapter V. post, on Undue Influence, p. 79 et seq. 
 
 ■^ See Edwards v. Mcyrick (1842) 2 Hare 60 ; Pearson v. Benson 
 (1860) 28 Heav. 598. 
 
 ' See Coles v. Trccothick (1804) 9 Ves. 246; ex parte Lacex (1803) 6 
 Vev 015 ; ex parte James (1804) 8 Ves. 348.
 
 PARTIES TO CONTRACT. 21 
 
 Partners. — An analogous case to that of trustee and 
 cestui que trust is that of a managing partner and the 
 firm. Every partner is under the duty of disclosing 
 to the other partners all information possessed by him 
 concerning the assets and business of the firm. 
 
 Agents. — Where a man's title to sell or buv some 
 property is derived, not from his own beneficial owner- 
 ship of the property or the monev to be employed in 
 the purchase, but from an authority in that behalf given 
 to him either b}' the act of the beneficial owner of the 
 property or money, or by statute on such owner's 
 behalf, then he cannot well exercise the authority by 
 selling to or buying from himself, either directlv or 
 indirectly, unless his authority extends to such sale or 
 purchase. Thus a trustee for sale, whether he derives 
 his authority from a trust for or power of sale, cannot 
 purchase the trust property from himself if he is sole 
 trustee, or from the other trustees and himself, or from 
 the other trustees alone ; nor can he do so as agent for 
 a stranger. In the same way, a trustee may not pur- 
 chase his own land for the trust. 
 
 Where a person is invested with an authority to sell 
 or purchase in effect sells, to or buys from himself, the 
 persons by or on whose behalf the authority was 
 conferred have the option of affirming or avoiding the 
 transaction ; and if the transaction is affirmed, the 
 person authorised is firmly bound by it and cannot then 
 maintain that the purported exercise of his authority 
 was void. This class of transaction comes within the 
 general principles of agency and will be considered 
 more in detail in a later chapter.' 
 
 ^ See Chapter VI. post, on Contracts of Agents, p. 83 et scq.
 
 CHAPTER III. 
 FORMATION OF CONTRACT— IN GENERAL. 
 
 Section 1 — Principles of Agreement. 
 
 Agreement. — Agreement arises when two or more 
 persons are of the same intention concerning the same 
 thing. An agreement between A and B, as tlie source 
 of a legal contract of sale, imports that A and B intend 
 that they shall mutually be bound, A to sell the subject- 
 matter of the agreement to B, and B to pay the 
 purchase-money to A, and that A or B may legally 
 enforce against the other the due performance of that 
 other's obligation. 
 
 Mutual Assent. — A consensus ad idem is thus a 
 prime essential to the validity of a contract. The law 
 judges of an agreement between two persons exclu- 
 sively from those expressions of their intentions which 
 are communicated between them,^ and, therefore, an 
 intention not expressed or not communicated, or with- 
 drawn before communication, or communicated only to 
 a third person is, in general, inoperative and immaterial 
 to the question of agreement." 
 
 Offer and Acceptance. — The mutual assent of the 
 parties may be expressed either by their uniting in a set 
 form of written or spoken words, or by the acceptance 
 by one of them of an offer made to him by the other. 
 Both offer and acceptance may either be express, i.e., 
 by words or in writing, or may be implied from con- 
 duct, or may be partly express and partly implied. 
 Thus, the sending of an order for goods to a tradesman 
 is an offer to purchase, and the sending of the goods 
 ordered is an acceptance of the offer, and creates a 
 contract of sale." The fall of the hammer at a sale by 
 auction is an acceptance of an ofTer constituted bv a 
 bid.' 
 
 ' Smith V. Hughes (1871) 6 Q.B. 607. 
 
 2 Cox V. Troy (1822) 5 B. & Aid. 474. 
 
 ^ Harvey v. Johnston (1848)^C C.B. 304. 
 
 * See Sale of Goods Act, 1893, sect. ."58; Part II. Chapter I. post, 
 pp. 140, 141.
 
 FORMATION OK CONTRACT. 23 
 
 Declarations of Intention. — An expression of a 
 person's intention or of his willingness to enter into 
 negotiations for a sale is not an offer and, therefore, 
 cannot be accepted so as to form a binding contract of 
 sale.' An advertisement of a sale by auction is not 
 an offer binding the auctioneer to put up the lots for 
 sale;' nor does an intimation to a person of the lowest 
 price at which goods will be sold necessarily amount to 
 an offer to sell the goods at that price. ^ Similarly, an 
 announcement that stock-in-trade will be sold by 
 tender and that tenders will be received and opened at 
 a certain date is not an offer to sell, and cannot be 
 accepted by sending in the highest tender.* But an 
 advertisement by an auctioneer of a sale without reserve 
 is an offer which, so soon as the highest bid is made, 
 becomes a binding contract between the auctioneer and 
 the highest bidder.* But on a sale by auction that is 
 subject to a reserve, both the offer by the highest bidder 
 and its acceptance by the auctioneer are conditional 
 upon the reser^-e price having been reached." 
 
 Continuing Offers, — An invitation for tenders for 
 the suppiv of goods extending over a period of a year, 
 for example, is not an offer, but an invitation for offers. 
 A tender submitted in such a case, when accepted, 
 makes the tender a standing or continuing offer, and an 
 order for goods under the tender constitutes acceptance 
 of the offer and creates a binding contract.^ 
 
 Acceptance. — Acceptance must be more than a mere 
 mental assent.^ A contract is formed only when the 
 acceptor has done or said something to signify his 
 
 1 Montreal Gas Coy. v. Vasey (1900) A.C. 595. 
 
 2 Harris v. Nickcrson (1873) 8 Q.B. 286. 
 
 ■' Harvey v. Facey (1893) A.C. 552; Boyers v. Duke (1905) 2 I.R. 
 617. 
 
 ^ Spencer v. Harding (1870) 5 C.P. 561. 
 
 "' Warlow V. Harrison, 1 E. & E. 295 ; Thornett v. Haines, 15 
 M. & W. 367 ; Johnston v. Boyes (1899) 2 Ch. 75. 
 
 s M'Manus v. Fortescue (1907) 2 K.B. 1 ; sec post. p. 24. 
 
 • G. N. Rly. V. Withaw (1873) 9 C.P. 16; R. v. Demers (1900) 
 A.C. 103. 
 
 " FclthoHse V. Bindley, 11 C.B. N.S. 869; Dickinson v. Dodds, 
 2 Ch. D. 463.
 
 24 VENDORS AND PURCHASERS. 
 
 assent.* As an ordinary rule of law, an acceptance of 
 an offer made ought to be notified to the person who 
 made the offer, in order that there may be that coiisensus 
 which is necessary, according to the rules of English 
 law, to make a contract. But as notification of accept- 
 ance is required for the benefit of the person who makes 
 the offer, the person who makes the offer ma}^ dispense 
 with notice to himself if he thinks fit; and where he 
 expressly or impliedly intimates a particular mode of 
 acceptance as sufficient to make the bargain binding, it 
 is only necessary for the acceptor to follow the indicated 
 mode of acceptance. So that if the person making the 
 offer expressly or impliedly intimates that it will be 
 sufficient to act on the proposal without communicating 
 acceptance of it to himself, performance of the condition 
 is a sufficient acceptance, without notification.' Com- 
 munication of acceptance to an agent for sale of land is 
 sufficient acceptance.^ 
 
 An offer by letter to buy a horse, and stating that if 
 the writer received no answer he would assume his offer 
 was accepted, was held not to be accepted when no 
 answer was returned.* If a person sends goods differ- 
 ing materially from those ordered, there has been no 
 acceptance of the order." 
 
 Conditional Offer. — A bare acceptance of a condi- 
 tional offer implies an assent to the conditions. Thus, 
 if property put up for sale by auction subject to a reserve 
 price is knocked down by mistake for less than the 
 reserve price, there is no sale." In contracts for the 
 sale of land, it is not often advisable that the vendor 
 should undertake the full legal liability as to proof of. 
 title implied by law in the case of an open contract; 
 and in order to avoid this, the sale is usually made sub- 
 ject to what are commonly known as " conditions of 
 sale." If a purchaser makes an offer to purchase land 
 put up for sale subject to conditions, and his offer is 
 
 ' Rrofidcn v. Mctrop. Rail. Coy. (1877) 2 App. Cas. 666, 692. 
 
 '^ Carlill V. Carbolic Smoke Ball Coy. (1893) 1 Q.B. 256. 
 
 ■■ Wrifiht V. Higg (1852) 15 Beav. 592. 
 
 * Fclthouse V. Bindley, supra. 
 
 '• See Sale of Goods Act, 1893. s. 30 ; Levy v. Green (1859) 1 E. & E. 
 969. 
 
 ^ M'Manits v Fortcscite (1907) 2 KB. 1.
 
 FORMATION OF CON TRACT. 2o 
 
 accepted, there is a binding contract. In any case it 
 is important to remember that an unconditional accept- 
 ance of an offer makes a contract, to which no term can 
 be added by either party, except by the consent of both.' 
 
 Conditional Acceptance. — To make a contract, the 
 acceptance must be absohjte and unquahfied.^ Very 
 frequently an acceptance is qualified by such statements 
 as ** subject to the terms of a contract being arranged," 
 or " subject to the preparation and approval of a formal 
 contract.'"* If there is a simple acceptance of an offer, 
 accompanied by a statement that the acceptor desires 
 that the agreement should be put into more formal 
 terms, the mere reference to such an intention will not 
 prevent the Court from enforcing the final agreement 
 which has been arrived at.^ If the documents or letters 
 relied on as constituting a contract contemplate the 
 •execution of a formal contract between the parties, it 
 is a question of construction whether the execution of 
 the formal contract is a condition or term of the bar- 
 gain, or whether it is a mere expression of the desire 
 •of the parties as to the manner in which the transaction 
 already agreed to will in fact go through. In the 
 former case there is no enforceable contract either be- 
 cause the condition is unfulfilled or because the law 
 does not recognise a contract to enter into a contract. 
 In the latter case there is a binding contract, and the 
 reference to the more formal document may be ignored. 
 The fact that the reference to the more formal document 
 is in words which, according to their natural construc- 
 tion, import a condition is generally, if not invariably, 
 conclusive against the reference being treated as the 
 expression of a mere desire.* 
 
 ILLUSTRATIONS. 
 
 1. A vendor agreed in writing to sell his freehold estate, and 
 subjoined a letter to his solicitor desiring him to prepare a proper 
 
 ' Vide infra. 
 
 '^ Appleby V. Johnson (1874) 9 C.P. 158. 
 
 •^ Stanley v. Dowchsley (1874) 10 C.P. 102; Crosslcy v. Muycock 
 {1874) 18 Eq. 180 ; Winn v. Bull (1877) 7 Ch. D, 29. 
 
 ^ Crossley v. Maycock, supra. 
 
 " Per Parker J. in Von Hatzfehlt-Wildenberg v. Alexander (1912) 
 1 Ch. 284, at pp. 288, 289.
 
 26 \ LXDORS AND PURCHASERS. 
 
 agreement for signature by the parties. Held, that the letter to 
 the solicitor did not suspend or affect the binding agreement 
 constituted by the first writing.^ 
 
 2. A proposal by a purchaser to take the remainder of a 
 lease was answered by a letter which, after acceding to the 
 proposal, added : " We hope to giv^e you possession at half 
 quarter-day." Held, that the added words did not introduce a 
 new term, and the acceptance was unconditional.^ 
 
 3. In reply to a written offer made by A's agent, B wrote 
 accepting, and added : " If you approve of the enclosed, sign the 
 same, and we will, on receipt of the deposit, sign you a copy." 
 Held, that the two letters constituted a valid contract intended 
 to be carried into effect by the enclosure.^ 
 
 4. An advertisement for tenders, which stated that " All con- 
 tractors will have to sign a written contract after acceptance of 
 tender," was answered by P, who, after acceptance of his tender, 
 declined the contract. Held, that having regard to the terms of 
 the proposal and thei fact that such matters as quantities deliver- 
 able, etc., had to be arranged, the parties did not intend that 
 the contract should be complete till the terms were put in 
 writing and signed by the parties, and that P had a right to 
 retract.* 
 
 5. M's estate agent wrote to H's solicitor accepting an offer 
 of a certain sum of money for M's estate " Subject to the terms 
 of a contract being arranged," and requiring a deposit and fixing 
 a day for completion. Held, that the stipulation prevented the 
 acceptance from constituting an absolute contract.^ 
 
 6. C, by letter to E's agent, agreed to give the price (without 
 simply accepting the terms of sale) which the agent was author- 
 ised to accept for E's freehold property, the sale of which was 
 subject to stringent special conditions. The agent had verbally 
 been forbidden to sign anything, any contract having to be pre- 
 pared by E's solicitor, and he, therefore, declined to give C an 
 acceptance in writing. E's solicitor, after an interview with C, 
 wrote stating he was instructed to proceed with the sale and 
 that the draft contract was being prepared and would be for- 
 warded for C's approval. Held, that at the date of C's letter to 
 the agent there was no contract, and that the letter of E's solicitor 
 to C was no recognition of the fact that there had been a com- 
 pleted sale, and did not amount to an acceptance of the terms 
 stated by C in his letter to the agent, but merely to either a 
 conditional acceptance of C's terms, subject to a draft contract 
 being agreed to, or an expression of willingness to continue the 
 interrupted negotiations, and for that purpose to prepare a form 
 of agreement.* 
 
 ' Foiilc V. Freeman (1804) 9 Ves. 351. 
 
 ■■* Clivc V. Bcauwont (1847) 1 De G. & S. 397. 
 
 •■' Gihbitis V. N.E. Mctrop. Asylum District (1847) 11 Beav. 1 
 
 * Kiiifistouupon-Hull v. Pctch (1854) 10 H. & G. Ex. GIO. 
 
 '■' Houcyman v. Marryatt (1857) 6 H.L.C. 112. 
 
 ^ Chinnock v. Marchioness of Ely (1865) 4 De G. J. & S. 638.
 
 FORMATION OV CONTRACT. 
 
 7. An acceptance of an offer to purchase was in the terms 
 " which offer we accept, and now hand you two copies of 
 conditions of sale " and enclosed a formal agreement with condi- 
 tions of a special character. Held, that the acceptance was only 
 conditional, and that there was no final agreement enforceable 
 against the purchasers.' 
 
 8. An agreement in writing between B and W " subject to 
 the preparation and approval of a formal contract," was held to 
 be no final agreement enforceable against B.- 
 
 9. An estate was offered for sale in lots shown upon a plan 
 on which various conditions were printed, one of which was 
 that each purchaser would be required to sign a contract embody- 
 ing the foregoing conditions. M made a verbal offer to R's 
 agent to purchase certain lots for £1,000. The agent informed 
 him that he must purchase subject toi the conditions, and after- 
 wards wrote saying that R accepted the offer " subject to the 
 conditions on the plan," and that he had requested R's solicitors 
 to forward to M the agreement for purchase. In answer to a 
 further letter by M, the agent wrote saying the acceptance was 
 unconditional. M refused to sign the contract or to proceed 
 with the purchase. Held, that what had taken place by the 
 correspondence constituted a complete contract, and that the 
 reference to a formal deed in the agent's: letter did not suspend 
 or in any way affect the contract.^ 
 
 10. B, by letter, offered to purchase leasehold propertv " sub- 
 ject to the conditions of the lease being modified to my solicitor's 
 satisfaction." The offer was accepted by J's agent by letter, and 
 added that J's solicitor had been asked to prepare contract. 
 The required modification in the lease was procured. Held, that 
 notwithstanding the reference to a future contract, the two 
 letters constituted a complete contract.^ 
 
 11. L sent, through his architect, bills of quantities to several 
 builders inviting them to make tenders/ for the execution of the 
 work. B's tender was accepted by letter by the architect on L's 
 behalf, adding that " the contract will be prepared " by L's 
 solicitors. Held, that an intimation in the written acceptance 
 of a tender that a contract will be afterwardsi prepared does not 
 prevent the parties from becoming bound to perform the terms 
 in the tender and acceptance, if the intention of the parties was 
 thereby to enter into an agreement and if the preparation of the 
 contract was contemplated merely for the purpose of expressing 
 the agreement already arrived at in formal language.^ 
 
 12. An acceptance " subject to the title being approved by our 
 solicitors " was held to be unconditional, and that the added 
 
 1 Crossley v. Maycock (1874) 18 Eq. 180. 
 
 2 Wiiiu V. Bull (1877) 7 Ch. D. 29. 
 
 •' Rossifcr V. Miller (1877) 5 Ch. D. 648 ; (1878) 3 App. Gas. 1124 
 * Boiineucll v. Jenkins (1878) 8 Ch. D. 70 
 5 Lewis V. Brass (1878) 3 Q.B.D. 667.
 
 28 VENDORS AND PURCHASERS. 
 
 words meant only that the title must be investigated in the usual 
 way.* 
 
 13. A and B agreed to sell and buy " subject to a contract to 
 be settled " between tlieir solicitors, and afterwards entered into 
 a second agreement " subject to a proper contract." Held, that 
 the reference to a contract to be settled imposed a condition, and, 
 as the condition was never fulfilled, there was no contract.^ 
 
 14. H and C agreed in writing respectively to sell and to buy 
 an estate " subject to a formal contract being prepared and Siigned 
 b\' both parties as approved by their solicitors." Held, in the 
 absence of any signed formal contract, there was no concluded 
 agreement capable of being specifically enforced.' 
 
 15. L made an offer of purchase whicli. was accepted by B's 
 agent, adding that B's solicitor had been instructed to prepare 
 the necessary documents. B's solicitor then sent a draft agree- 
 ment to L, containing certain stipulations not mentioned in L's 
 offer and to which L objected. After L's withdrawal of his offer, 
 B ratified the acceptance by his agent. Held, that B's ratification 
 related back to his agent's acceptance, and that therefore L's 
 withdrawal was inoperative and B was entitled to specific per- 
 formance. A simple acceptance of an offer is not affected by a 
 statement that the acceptor has instructed his solicitors to pre- 
 pare the necessary documents.^ 
 
 16. An offer by letter to purchase " subject to our approving 
 a detailed contract to be entered into " was accepted by signing 
 the letter. Held, not a binding contract.* 
 
 17. B's solicitors accepted a written offer by A to purchase 
 B's property, and added, " We enclose contract for vour signa- 
 ture. On receipt of this signed by you across the stamp and 
 deposit, we will send you a copy signed by him." This document 
 comprised usual conditions of sale with memorandum of contract 
 indorsed and stij)ulated {inter alia) for a deposit of 10 per cent 
 on the purchase-money and completion by a certain date, and 
 that vendor's title should commence with a certain conveyance. 
 Held, that the acceptance was not an acceptance simpliciter of 
 A's offer so as to form a contract and a mere reference to an 
 enclosed document as carrying out the contract so made, and 
 that, therefore, there was no binding contract.' 
 
 18. The words " subject to preparation by my solicitor and 
 completion of a formal contract!" were held (a) to include the 
 formation of a binding agreement and (b) not to be a condition 
 which the vendor could waive as being for his benefit alone.^ 
 
 ' Hiisscy V. Honic-Payne (1879) 4 App. Cas. 311. 
 
 '^ Harvey v. Barnard's Inn (1881) 50 L.J. Ch. 750. 
 
 '■' Hau'kesicortli v. Chaffcy (1886) 55 L.J. Ch. lib. 
 
 * Bolton Partners v. Lambert (1889) 41 Ch. D. 295 
 " Page V. Norfolk (1894) 70 L.T. 781. 
 
 * Joms V. Daniel (1894) 2 Ch. 332. 
 ' Lloyd V. Nowell (1895) 2 Ch. 744.
 
 FORMATION OF CONTRACT. 29' 
 
 19. A house- haviny bt-i^'n put up for sale by auttiini subject 
 to conditions, but not having been sold at the auction, H, by 
 letter, offered to purchase it for £'350, and added that if his offer 
 was accepted he would " sign contract on auction particulars.' 
 The auctioneer replied acceptinjj the offer on F's behalf " subject 
 to contract as agreed," and enclosing a draft contract identical 
 with that embodied in the conditions of sale, except that the 
 draft stated the vendor's name, which had been omitted from the 
 conditions. H never signed this draft contract, but it was held 
 that the acceptance of H's offer was absolute and unconditional.' 
 
 20. By " heads of agreement " between a vendor and pur- 
 chaser It was agreed that the purchaser should purchase certain 
 land for the sum of £3,600 " subject to approval of conditions 
 and form of agreement " by i)urrhaser's solicitor. Held, that the 
 " heads of agreement " constituted a complete contract, and that 
 the stipulation was not a condition precedent to a complete con- 
 tract. [This decision was doubted in Von Haizfeldt-Wildenburg 
 V. Alexander (1912), 1 Ch. 284, and disapproved in Rossdale v. 
 Denny (1921), 1 Ch. 57.]- 
 
 21. An acceptance " subject to the conditions of sale and an 
 agreement " was held as conditional, and not to form' a con- 
 cluded contract.^ 
 
 22. An agreement by letters " subject to " the approval of a 
 formal contract, was held not a concluded contract until such 
 formal contract had been approved. The words relied on were 
 not a merelv supplemental stipulation nor a mere reference to a 
 formal contract.^ 
 
 28. F made an offer to purchase S's interest in certain pro- 
 perty " subject to a formal contract to be approved by your 
 solicitors and ourselves on acceptance of the offer, when any 
 minor details can be settled." S's solicitors wrote accepting the 
 offer. Xo formal contract was ever approved. Held, there was 
 no concluded contract between the parties.^ 
 
 24. A purchaser by letter accepted an offer by letter to sell 
 a leasehold house " subject to " [inter alia) a condition that her 
 solicitors should " approve the title to and covenants contained 
 in the lease, the title from the freeholder and the form of con- 
 tract." Held, on the construction of the letters, not a complete 
 contract (and doubting North v. Percival. ante).'' 
 
 25. A's agent telegraphed an inquiry whether B could supply 
 coals, to which B's agent replied — by a letter headed in red 
 print "All offers are subject to strike and lock-out clauses" — 
 
 ' Filby V. Hounsdl (1896) 2 Ch. 737. 
 - North V. Percival (1898) 2 Ch. 128. 
 ■' Clark V. Robinson (1903) 51 W.R. 443. 
 < Bromct v. Nevill (1909) 53 Sol. Journ. 321. 
 
 •' Santa Fc Land Cov. v. Forcstal Land, &c. Cox. (1910) 2G T.L.R. 
 534. 
 
 '^ Von HadzfehU-Wildcnbcrg v. Alexander (1912) 1 Ch. 284.
 
 ■j{) VENDORS AND PURCHASERS. 
 
 that he must communicate with B, and in a subsequent letter — 
 similarly headed — " We confirm having sold you on behalf of 
 S. Instone and Co.," and setting out quantities and terms. Fur- 
 ther correspondence and telegrams followed, in which a " sale " 
 and " purchase " and its " confirmation " were alluded to, and 
 finally B repudiated the transaction. Held (by the liouse of 
 Lords) that there was no completed contract, but merely nego- 
 tiations which were subject to an agreement, which was never 
 come to, on the strike and lock-out clause.* 
 
 26. A firm of tim.ber merchants had printed in red ink at 
 the head of their notepaper, " All offers over a period are subject 
 to stoppages through strikes, lock-outs, etc., and the right to 
 cancel is reserved in the event of any of the countries from which 
 our supplies are drawn becoming engaged in war." In reply 
 to a specification of the requirements of a shale oil company for 
 a year, they tendered and adjusted the contract by correspondence 
 on this notepaper. Held, that this clause was a condition of the 
 contract.^ 
 
 27. A offered to purchase B's freehold property " subject to 
 title and contract." A alleged that all the material terms were 
 subsequently agreed between the parties at an interview and by 
 letters, and were embodied bv A in a draft contract which B 
 returned unaltered, with the words, " It seems to be all in order." 
 B refused to complete. Held, that ev^en assuming that all the 
 
 . terms of the agreement had been settled one by one and em- 
 bodied in the draft, the condition contained in the offer required 
 that a written contract made inter partes should be formally 
 entered into and, in the absence of such a document, there was 
 no enforceable contract.^ 
 
 28. R, by letter to D's agent, offered to purchase D's lease- 
 hold property for the sum of £7,500 " subject to a formal con- 
 tract to embody such reasonable provisions as mv solicitors may 
 approve and to the lease containing no vmusual provisions or 
 covenants." D's agent accepted, but no formal contract was 
 executed. Held, that the offer was conditional upon a formal 
 contract being executed, and that there was no binding contract 
 between the parties (disapproving North v. Percival fl898), 2 Ch. 
 128, ante).* 
 
 Counter-Offer. — A conditional acceptance, or an 
 acceptance which proposes a material variation of the 
 terms offered, does not make a contract, but constitutes 
 a counter-offer which in turn requires the acceptance 
 of the person who made the original offer.* But a 
 
 ' Love & Stewart v. Instone & Co. (1917) 33 T.L.R. 475. 
 
 2 Oakbank Oil Coy v. Love & Stewart (1918) 55 Sc. L.R. 179 (H.L.). 
 
 •'' Coope V. RidoHt (1920) 2 Ch. 411 ; affirmed (1921) 1 Ch. 291. 
 
 * Rossdale v. Denny (1921) 1 Ch. 57. 
 
 * Rotttlcdgc V. Grant (1828) 4 Bing. 653; Hutchinson v. Bowker 
 0839) 5 M. & W, 535 ; Sale of Goods Act, 1893. s. 30.
 
 FORMATION OF CONTRACT. 31 
 
 variation in language merely, which does not involve 
 any real difference in meaning, is a sufficient acceptance.* 
 
 ILLUSTRATIONS. 
 
 1. N offered to buy a mare, if warranted " sound and quiet 
 in harness." J sent the mare with a warranty that she was 
 " sound and quiet in double harness." Held, no complete con- 
 tract.2 
 
 2. B offered by letter to sell a cargo of good barley. H replied 
 accepting the offer " expecting you will give us fine barley and 
 full "iveight." Held, that H had not accepted B's offer.' 
 
 3. W offered to sell his farm to H for £1,000. H thereupon 
 offered him £950, which W refused. H then accepted the offer 
 at £1,000, but W declined to complete the transaction. Held, 
 that when H, instead of accepting the first offer unconditionally, 
 answered it by aJ counter-proposal to purchase at a lower price, 
 " he thereby rejected the offer," and that no contract had ever 
 become complete between the parties.* 
 
 4. A proposed to insure a wheat cargo " at and from " a 
 certain port, and B " in accordance with your written request," 
 granted an insurance " from " the port in question. Held, that 
 the acceptance was intended to be in all respects in accordance 
 and in conformity with the proposal, and to grant an insurance 
 ■" at and from," and consequently there was a binding contract.^ 
 
 Broker's Bought and Sold Notes. — The contract 
 notes issued by a broker to the buyer and seller must, 
 in order to make a contract, be identical, except in the 
 correlative words " bought " and " sold." If these 
 notes vary in any material term, there is no contract 
 of sale, and no property passes in the goods. "^ Thus, 
 if there is any variance in the description of the goods, 
 or in the method of payment, there is no contract, unless 
 such variance can be reconciled by evidence of mercan- 
 tile meaning of the terms. ^ 
 
 1 Colonial Insce. ofN.Z. v. Adelaide Marine Inscc. (1886) 12 App. 
 Cas. 128. 
 
 2 Jordan v. Norton (1838) 4 M. & W. 155. 
 
 3 Hutchinson v. Bowker (1839) 5 M. & W. 535. 
 ^ Hyde v. Wrench (1840) 3 Beav. 334. 
 
 ^' Colonial Insce. of N .Z. V. Adelaide Marine Insce. (1886) 12 App. 
 Cas. 128. 
 
 6 Grant v. Fletcher (1826) 5 B. & C. 436. 
 
 '' Thornton v. Kcmpstcr (1814) 5 Taunt. 786; Gregson v. Ruck 
 (1834) 4 Q.B. 737 ; Bold v. Rayner (1836) 1 M. & W. 343 : Kcmpson v. 
 Boyle (1865) 3 H. & C. 763.
 
 32 VENDORS AND PURCHASERS. 
 
 Subsequent Negotiations. — When once an offer has 
 been definitely accepted, further negotiations between 
 the parties cannot, except by the consent of both, be 
 admitted to vary or cancel the contract already formed.^ 
 But in the case of a contract formed by correspondence 
 between the parties, two letters which, frimd facie, 
 constitute an offer on the one hand and an acceptance 
 on the other, will not constitute a contract if it appears 
 from the subsequent correspondence that important 
 terms forming- part of the contract have been omitted 
 from those two letters." The whole of the correspon- 
 dence must be looked at. 
 
 ILLUSTRATIONS. 
 
 1. A, by letter, stated her willingness to accept a specified 
 sum for her property. B's agents accepted, " subject to the title 
 being approved b\' our solicitors." Negotiations previous to these 
 two letters had resulted in no written agreement as to the pay- 
 ment of the purchase-money by instalments, and this question 
 was discussed in subsequent correspondence between the parties' 
 agents, but resulted in no acceptance sinipliciter of an offer made 
 by either side. B brought an action for specific performance. 
 Held, that the two letters taken by themselves constituted a 
 binding contract ; but that the whole of the correspondence and 
 interviews must be considered, from which it appeared there was 
 no real agreement as to an important terms of the bargain — the 
 payment by instalments — and that this matter was still in nego- 
 tiation only, and that B was, therefore, not entitled to specific 
 performance.^ 
 
 2. M, by letter, offered to sell his business at a specified sum, 
 subject to specified conditions. B replied accepting the offer, 
 whereupon M's solicitor sent B a formal memorandum of agree- 
 ment for approval with an accompanying letter. B's solicitors 
 altered the memorandum by the insertion of a clause preventing 
 M for five years from carrying on a similar business in the 
 neighbourhood. M's solicitor returned the draft with a modifica- 
 tion of this clause, to which B's solicitors wrote that they would 
 not agree. The next day M's solicitor wrote that M declined 
 to proceed with the matter. Held, that although the first two 
 letters would, if nothing else had taken place, have been suffi- 
 cient evidence of a complete agreement, yet B (the plaintiffs) had 
 
 • Bellamy v. Debenham (1890) 45 Ch. D. 481 ; Pertyv. Suffield (1916) 
 2 Ch. 187 
 
 * Husscy v. Home-Payne (1879) 4 App. Cas. 311 ; Bristol. &c.. Bread 
 Coy. V. Ma^gs (1890) 44 Ch. D. 616; and see Bellamy v. Debenham 
 (1890) 45 Ch. D. 481 ; Perry v. Suffield (1916) 2 Ch. 187. 
 
 ' Husscy V. HorncPayne (1879) 4 App. Cas. 311 ; and see illustration 
 12 on p 27 ante.
 
 FORMATION OF CONTRACT. 33 
 
 thon\.seIves shown tli.ii the agreement was nut complete by stipu- 
 lating afterwards for an importaat additional term which kept 
 the whole matter in a state of negotiation only, and that M was 
 therefore at liberty to put an end to the negotiations by with- 
 drawing his offer.* 
 
 3. D wrote to B's agent offering to purchase freehold land 
 at a si)ecified sum, to which B's agent replied accejiting " subject 
 to the owner's ratification," which was soon afterwards obtained. 
 Negotiations as to title and approval of draft contract followed, 
 and ultimately D declined to i)roceed with the purchase. Held, 
 that there was a clear acceptance of D's offer, and that the 
 further negotiaitions between the parties could not, without the 
 consent of both, get rid of the contract already arrived at." 
 
 4. S's secretary, by letter, offered £7,000 for P's freehold pre- 
 mises, goodwill and possession. P accepted by letter. Subse- 
 quently P's solicitors wrote to S's solicitors enclosing a draft con- 
 tract for approval, which contained certain stipulations as to 
 title, payment of deposit and time for completion. After further 
 correspondence S's solicitors wrote to P's solicitor returning the 
 draft contract, and stating that S would not entertain the pur- 
 chase. Held, that the two letters constituted a complete and 
 definite contract, which was not affected by the subsequent nego- 
 tiations.^ 
 
 Contracts by Post and Ti-:li:okaph. — As between 
 the sender of a letter and the person to whom it is 
 addressed, the post office is the agent of the sender ; 
 and deHvery of a letter to the post office is no deHvery 
 to the person to whom it is acWressed until received by 
 him." Btit where an acceptance by post is expressly or 
 impliedly authorised, if the letter of acceptance is 
 correctly addressed and posted, all the conditions of 
 acceptance are satisfied and a contract is made/ An 
 offer made by letter may be accepted by letter unless 
 the offeror indicates some other mode of accept- 
 ance.* And where an offer is not made through the 
 post, if the circuinstances are such that it must have 
 been within the contemplation of the parties that 
 according to ordinary usages the post might be used as 
 
 ' Bristol, Cardiff & Swansea Aerated Bread Coy. v. Maggs (1890) 
 44 Ch. D. 616. 
 
 2 Bellamy v. Dehenhaiii (1890) 45 Ch. D, 481 ; whether the two 
 letters in question formed a complete contract was doubted (but was not 
 decided) by the Court of Appeal in the same case (1891) 1 Ch. 412. 
 
 • Perry v. Sujfields, Ltd- (1916) 2 Ch. 187 (C.A.). 
 
 ■* Newcombe v. De Roos (1859) 2 Ell. & E. 271. 
 
 " Henthorn v, Frazcr (1892) 2 Ch. 27; Bruner v. Moore (1904) I Ch. 
 305. 
 
 3
 
 34 VENDORS AND PURCHAS ERS. 
 
 a means of communicating acceptance, acceptance 
 through the post is good.' The telegraph may be used 
 under similar circumstances and with the same result.' 
 
 Delay and Loss ix Post. — Where acceptance by 
 post is expressly or impliedly authorised, or where 
 there is no express condition in the offer to the contrary, 
 it is now established that if the party accepting the offer 
 puts his letter into the post on the correct day, he has 
 done everything he was bound to do, and he cannot be 
 responsible for any loss or delay in transmission. On 
 delivery of the letter of acceptance to the post the con- 
 tract is made as complete and binding as if the acceptor 
 had put his letter into the hands of a messenger sent 
 by the offeror himself as his agent to deliver the offer 
 and receive the acceptance. Any delay or failure to 
 deliver on the part of the post office does not affect the 
 acceptor with responsibility for such delay or loss.^ 
 Errors in telegraphic transmission do not bind either 
 the offeror or acceptor.* 
 
 Revocation of Offer. — An offer may be revoked at 
 any time before acceptance, but notice of revocation 
 must be given to the person to whom the offer is made f 
 and the fact that the offeror has agreed to keep the offer 
 open for a specified time does not preclude him from 
 revoking the offer before the expiration of that time, 
 unless the offeror is given valuable consideration for 
 keeping the offer open.* Revocation may be implied 
 from conduct which is inconsistent with the continuance 
 of the offer,' and an offer in writing may be revoked 
 verbally.^ Revocation by conduct is not sufficient 
 
 ' Dunlop V. Higgins (1848) 1 H.L. Gas. 381. 
 
 ■^ Stevenson v. McLean (1880) 5 Q.B. D, 351 ; Brnncr v. Moore 
 (1904) 1 Ch. 305. 
 
 •'' Household Fire Insurance Coy. v. Grant (1879) 4 Ex. D. 216; 
 Henthorn v. Frazer (1892) 2 Ch. 27 ; Harris's Case (1872) 7 Ch App . 
 587. 
 
 ' Henkel v. Pape (1871) 6 Exch. 7. 
 
 '■ Offord V. Davies (1862) 12 C.B. N.S. 748 ; Payne v. Cave (1789) 3 
 Term. Rep. 148 ; Sale of Goods Act. 1893, s. 58 ; G.N. Rly. v. Wifltani 
 9 C.P. 16; Byrne v. Van Ticnhoven 5 C.P.D. 344. 
 
 « Cooke V. Oxlcy (1790) 3 Terra. Rep. 653 ; Dickinson v. Eodds (1876) 
 2 Ch. 463. 
 
 ' Dickinson v Dodds, supra. 
 
 *■ Wilson's Caie (1869) 20 L.T 962 , Truman's Case (1894) 3Ch. 272.
 
 FORMATION OF CONTRACT^^ 35 
 
 unless and until it comes to the knowledge of the person 
 to whom the offer was made. In the case of revocation 
 by post, the letter of revocation, in order to be effective, 
 must be received by the acceptor before be posts his 
 letter of acceptance.* An offer under .seal cannot be 
 revoked.* 
 
 Revc^c.\tion' of Acceptance. — Until acceptance is 
 communicated to the offeror, it may be withdrawn or 
 intercepted. Where a letter accepting- an offer and the 
 letter withdrawing the acceptance arrived at the same 
 time, it was held there w-as no contract f but it is diffi- 
 cult to reconcile this case with the cases which decide 
 that a contract is complete from the time the letter of 
 acceptance is posted.* 
 
 Effect of De.\th of Either Party. — The death of 
 either party before an offer is accepted causes the offer 
 to lapse. The representatives of the offeror cannot be 
 bound by an acceptance made to them; nor can the 
 representatives of a person to whom an offer was made 
 accept the offer. Thus a claim for goods cannot arise 
 until the goods are delivered, and if the person ordering 
 the goods die before delivery, no action will lie in 
 respect of a subsequent delivery.* 
 
 Sales by Auction. — A bidding at an auction is an 
 offer, and no contract is created until that offer is 
 accepted by the auctioneer : acceptance being signi- 
 fied bv the fall of the hammer. The general rule that 
 an offer may be revoked before acceptance applies to 
 biddings at sales by auction, so that a bidder may retract 
 his bidding at any time before the fall of the hammer, 
 provided that he does so audibly, so that the fact of 
 revocation is communicated to the auctioneer. ° And 
 although a stipulation that no bidding shall be retracted 
 is almost invariably made, it would appear that such 
 
 ^ Henthont v. Frazer (1892) 2 Ch, 27. 
 
 2 Xenos V. Wickham, 2 H.L. 296. 
 
 3 Dunmore v. Alexander (1830) 9 Ct Sess. (1st Ser.) 190. 
 
 ^ Henthont v. Frazer (1892) 2 Ch. 27 ; but see ex parte Cote (1873) 9 
 Ch. 27; Ncwcomb v. De Roos (1859) 2 E. & E. 271 ; Hou<>ehohi Fire 
 Insce. Coy. v. Grant (1879) 4 Ex. D. 216, 235. 
 
 « Bagel V. Miller (1903) 2 K.B 212. 
 
 « Sale of Goods Act, 1893. s. 58; Payne v. Cave (1789) 3 T.R. 148.
 
 36 VENDORS AN D PURCHASERS. 
 
 a Stipulation cannot be enforced.^ Further, the rule 
 that an offer when accepted cannot be revoked applies 
 also, so that after the fall of the hammer neither the 
 vendor nor the purchaser can revoke the auctioneer's 
 authority to sign a memorandum of the contract." 
 
 Section 2 — Contracts under Seal. 
 
 Certain contracts are not enforceable unless made by 
 deed, sealed and delivered. Such are : Conveyances 
 on sale and legal mortgages of land and interests in 
 land other than copyhold;' leases of lands for more 
 than three years or reserving a rent less than two-thirds 
 of the full improved value ;^ assignments and surren- 
 ders of such leases;* sale of sculpture, with copyright;^ 
 transfers of shares in companies under the Companies 
 Clauses Act, 1845^ (not being companies within the 
 Companies Act, 1908);" transfers of British ships or 
 any shares therein f contracts of corporations under 
 the common law, with certain exceptions f contracts 
 made without valuable consideration." 
 
 Contracts under seal derive their legal effect from the 
 formality of the deed and not, as in the case of simple 
 contracts, from the mere fact of agreement. Delivery 
 of the deed makes the deed operative, and is effected 
 either by actually handing the deed to the other party 
 to it or to a stranger for his benefit or bv words indicat- 
 ing an intention that the deed should become opera- 
 tive." If delivery is made subject to a condition, the 
 
 ' See Sugden V. & P. 14th ed. 14; Dart V. & P. 7th ed. vol. 1, p. 136. 
 
 "^ Emmcrson v. Hcelis (1809) 2 Taunt. 38; White v. Proctor flSU) 
 4 Taunt. 209; Kemcys v. Proctor (1820) 1 J. & W. 350. 
 
 ' Real Property Act, 1845, Sect. 3. 
 
 * Statute of Frauds, Sects. 1, 2, 3 ; Real Property Act, 1845, Sect. 3. 
 ■'■ Sculpture Copyright Act, 1814, Sect. 4. 
 
 " 8 & 9 Vict. c. Ifi, ss. 14. 16. 
 ^ 8 Edw. 7, c. 69. 
 
 * Merchant Shipping Act, 1894, Sect. 24. 
 
 ^ See Chapter II., atttc, p. 12; Mayor of Ludlow v. Charlton, 6 
 M. & \V. 815. 
 
 '° Foakes v. Rccr. 9 A pp. Gas. 605. 
 
 " Xenos V. Wickham (1867j L.R. 2 H.L. 296 ; Doc v. Knight (1826) 
 5B. &C,671 s V /
 
 FORMAT ION OF CONTRACT. .^ 37 
 
 ^j 
 
 deed does not take elTect until the condition is per- 
 formed, and in such a case it is called an escroiv.' The 
 condition may be expressly declared, or may be implied 
 
 lioni the circumstances of the case." 
 
 SixTiON 3 — Contracts in Writing. 
 
 Agri:i:ment BiiFORt: Rkduction into Writing. — The 
 question frequently arises as to whether a binding agree- 
 ment has been made between parties before the formal 
 execution of a document in writing i)V under seal. If 
 parties have come to an agreement, the}' are not the less 
 bound by that agreement because they express a desire 
 to have it reduced into writing. If the original under- 
 standing is that the terms agreed upon are to be reduced 
 into writing, and that the parties are not to be bound 
 until the terms are reduced into writing, then each party 
 has a right to withch^aw before the agreement is signed. 
 But if the terms are agreed upon by parol, and the 
 writing is meant to record the transaction and to pre- 
 serve a memorial of it, in that case they are bound. The 
 circumstance that the parties do intend that a formal 
 record of the transaction should be drawn up is strong 
 evidence to show that thev did not intend the previous 
 negotiations to amount to an agreement. It is a ques- 
 tion of fact depending upon the circumstances of the 
 case."" 
 
 Where a vendor and purchaser of an estate agreed 
 upon the terms, which were written down and signed by 
 the vendor, who subjoined a letter instructing his 
 solicitor to prepare a proper agreement, it was held 
 there was an agreement binding upon the vendor not- 
 withstanding the intention to. have a more formal docu- 
 ment drawn up.' "Heads of agreement" containing 
 the expression " subject to approval of conditions and 
 form of agreement b}^ purchaser's solicitor " were held 
 
 ' Shep. Touch. 58 : Kidncr v. Keith (1863) 15 C.B. N.S. 35. 
 
 - London Freehold Coy. v. Sufficld (1897) 2 Ch. C21. 
 
 " See the observations of Cranworth L.C. in Ridgway v. Wharion 
 (1857) 6 H.L. Gas. 238 ; and Lord Wensleydale, ihid. : and see the cases 
 cited on p. 25 ef. seg. ante. 
 
 ' Foicle V. Freeman (1804) 9 Ves. 351 : Bolton Partners v. Lambert 
 (1889) 41 Ch. D. ?95.
 
 38 VENDORS AND PURCHASERS. 
 
 a complete contract/ And where land was offered in 
 lots upon certain printed conditions, adding that the 
 purchaser will be required to sign a contract embody- 
 ing the foregoing conditions, and a purchaser made an 
 offer which was accepted, it was held there was a com- 
 plete agreement." Hut where a proposed purchaser paid 
 a deposit and took a receipt for part payment of the 
 purchase-money, which stated " the terms to be 
 expressed in an agreement to be signed as soon as 
 prepared " ;'' and where an offer for the sale of an estate 
 was accepted " subject to the terms of a contract being 
 arranged." it was held there was no contract.^ 
 
 Upon a sale of land at a valuation to be made by 
 persons named, the valuation is a condition precedent, 
 and the purchaser is not bound unless a valuation is 
 made according to the agreement; but upon an agree- 
 ment to sell at a fair valuation, no particular means of 
 ascertaining the value being indicated, the Court may 
 direct the mode of valuation." Similarly, upon a sale 
 of goods subject to valuation.' A sale of land " subject 
 to approval of title by purchaser's solicitor " is in 
 terms conditional upon the solicitor's approval ; but 
 this approval must be exercised bond fide and upon 
 reasonable and legal grounds.^ 
 
 Effect of Reduction into \\^ritixg. — Where a con- 
 tract has been reduced into writing, previous negotia- 
 tions, whether they resulted in a binding agreement or 
 not, are presumptively merged in the writing, which 
 thenceforth becomes exclusive evidence of the terms.** 
 
 • North V. Pcrcival (1898) 2 Ch. 128; doubted in You Hatzfchlt- 
 Wiliicnbiiifi v. Alexander (1912) 1 Ch. 284; Rossdalc v. Denny (1921) 
 1 Ch. 57. 
 
 ■^ Rossiter v. Miller (1878) 3 App. Cas. 1124. 
 ' Wood V. Midfiley (1854) 5 De G. M. & G. 41. 
 
 * Harvey v. Barnard's Inn (1881) 50 L.J. Ch. 750; Hawkesworth v. 
 Chaffey (1886) 55 L.J. Ch. 325; Winn v. Bull (1877) 7 Ch. D. 29; 
 Crossley v. Maycock (1874) 18 Eq. 181 ; Jones v. Daniel (1894) 2 Ch. 332 ; 
 and see cases cited in Note 3 on p. 25 ante. 
 
 •' Milnes v. Gery (1807) 14 Ves. 400; Firth v. Midland Rly. (1875) 
 20 Eq. 100. 
 
 •■' Clarke v. Westrope (1856) 18 C.B. 765. 
 
 ■ Eadie v. Addison (1882) 52 L.J. Ch. 80; Hudson v. Buck (1878) 7 
 Ch. D. 683. 
 
 " Harris v. Rickett (1859) 4 H. & N. 1 ; Inglis v. Buttery (1878) 3 
 App. Cas. 552 ; C.W.Rly. v. Fisher (1905) 1 Ch. 316.
 
 I-OUMATIOX OF CONTUACT. 39 
 
 But w here some only of the teiiiis have been carried into 
 exetution by a deed or written contract, the remaining' 
 terms may remain in force, as in the case of a contract 
 for tile sale of land with clauses for compensation for 
 any error in the particulars of sale, wliich may entitle 
 the purchaser to compensation for errors discovered 
 after he has accepted reconvevance of the propertv ;' for 
 one writinn;- ma\' contain several contracts.' 
 
 Contract Coxtained in Skvkral Writings. — 
 Where several writings are relied upon as containing 
 all the material terms of a contract, as in the case of 
 negotiations by correspondence, the contract is complete 
 in a written form if the writings are sufficiently con- 
 nected togetlier by internal references. And extrinsic 
 evidence is admissible to apply the references and to 
 identify the writings; but extrinsic evidence is not 
 admissible in such a case for an}' other purpose.^ If the 
 writings are not sufficiently connected bv their contents 
 as part of one agreement, the contract is not complete 
 in writing.* 
 
 Admissibility of Extrinsic Evidence to Explain or 
 \\\RV Written Contracts. — As a general rule of law, 
 contracts wholly in writing cannot be varied by extrinsic 
 evidence of the intention of the parties; but this rule 
 does not apply to contracts partly in writing and partly 
 by parol, in which cases all the circumstances ma\ be 
 proved in order to ascertain the terms of the agreement, 
 and even to varv the contents of the writings.* And 
 the same general rule, in similar circumstances, applies 
 to proreeciings in ecjuity." Thus, if a sale by auction is 
 followed bv a written contract, the writing cannot be 
 explained, or added to, or varied by parol evidence of 
 
 ' Palmer V. Johnson (1884) 13 O.B.D. 351 ; I.cggcttv. Barrett (1880) 
 15 Ch. D. 30r,. 
 
 - Poivcll V. Edmunds (1810) 12 East 6; Roots v. Dormer i\'Ail) \ 
 B. & Ad. 77; Harrison v. Seymour (1866) 1 C.P. 518. 
 
 ■■ Oliver v. HuntinU (1890) 44 Ch. D. 205 ; Lon^ v. Millar (1.S75I 4 
 C.P.D. 450: Stokes v. Whicker (1920) 1 Ch. 411. 
 
 •■ Brown v. Langley (1842) 4 Man. & G.466; and see Chapter l\'.. 
 Sect. 2, post, pp. 46-48. 
 
 •^ Harris v. Rickett (1859) 4 H. & N. 1 ; Infflis v. Bnttery (1878) 3 
 App Cas. 552; Bolton v. Tomlin (1836) 5 A. & E. 856; Stones v. 
 Douler (1860) 29 L.J. Ex. 122. 
 
 6 May V. Piatt (1900) 1 Ch. 616; Clarke v. Grant (1807) 14 Ves. 519.
 
 40 VENDORS AND PURCHASERS. 
 
 what passed at the sale;^ and if goods are described in 
 a written contract of sale as of a certain Ivind and quality, 
 the contract can only be executed by delivering goods 
 answering to the description in the contract.' 
 
 Extrinsic evidence is admissible to prove the act of 
 agreement, as, for example, that the name of a party 
 was signed as agent only, though appearing in the 
 writing as a principal f or that a writing purporting to 
 be a contract of sale was signed merely for a collateral 
 purpose and not as a real contract ;' or that a writing 
 was signed or agreed to upon terms that it should not 
 operate as a contract until the fulfilment of a stated 
 condition." It is also admissible to show that a contract 
 in writing was made subject to a usage or custom oi the 
 trade or business to which the contract relates,*^ except 
 that such usage must not contradict the express terms 
 of the contract;' and where it is decided to exclude a 
 usage of trade or to vary its effect, the intention must 
 appear in writing.* 
 
 Extrinsic Evidence as to Subject-matter of Con- 
 tract. — Sometimes extrinsic evidence is necessary to 
 ascertain and identify the subject-matter of the contract. 
 Thus, in contracts for the sale of land, in the absence 
 of a clear specific description of the property, evidence 
 has been admitted to identify the property described bv 
 situation, or by a name, or by the ownership, or by 
 occupation.^ 
 
 ' Gunnis v. Erhart (1789) 1 H.Bl. 289. 
 
 '■^ Harnor v. Groves (1855) 15 C.B. 667 ; Sale of Goods Act, 1893, ss. 
 13. 14. 
 
 » Wake V. Hanop (1862) 1 H. & C. 202 ; Pattlc v. Honiibrook (1S96) 
 1 Ch. 25. 
 
 * Rogers V. Hadley (1863) 2 H. & C. 227. 
 
 '• Pattle V. Honiibrook, supra. 
 
 « Heyworth v. h'night (1864) 17 C.B. N.S. 298; Sale of Goods Act, 
 1893, s. 55. 
 
 ' The Alhamhra (1881) 6 P.D. 68. 
 
 *■ Clayton v. Gregson (1836) 5 A. & E. 302; Allan v. Siindin (1862) 
 1 H. & C. 123. 
 
 » Raird V. Fortune (1861) 4 Macq. H.L. 149 ; Lvlew Richards (1866) 
 1 H.L. 222; Mellorw Walmeslcy (1905) 2 Ch. 164; Plant v. Bourne 
 (1897) 2 Ch. 281 ; Ogilvie v. Foljambe (1817) 3 Mer. 53.
 
 CHAPTER IV. 
 
 FORiMATIOX OF CONTRACT.— STATUTE OF 
 FRAUDS AXD SALE OF GOODS ACT, 1893. 
 
 Section 1 — Introductory. 
 
 Statute of Frauds. — The fourth section of the Statute 
 of Frauds' provides that no action shall be brought 
 on any contract or sale of lands, or any interest in or 
 concerning them, unless the agreement upon which such 
 action shall be brought, or some memorandum or 
 note thereof shall be in writing and signed by the party 
 to be charged or his agent. 
 
 Sale of Goods Act, 1893. — The fourth section of the 
 ■Sale of Goods Act, 1893,' replacing Section 17 of the 
 Statute of Frauds, provides that " a contract for the sale 
 ■of any goods of the value of £10 or upwards shall not 
 be enforceable by action unless the buyer shall accept 
 part of the goods so sold, and actually receive the same, 
 or give something in earnest to bind the contract, or in 
 part payment, or imless some note or memorandum in 
 writing of the contract be made and signed by the party 
 io be charged or his agent in that behalf." 
 
 In so far as the above two statutes require a note or 
 memorandum in writing, the rules applicable to con- 
 tracts, under the one statute apply equally to contracts 
 under the other ; and, for the sake of convenience, are 
 •discussed in detail in this chapter. The fourth section 
 of the Sale of Goods Act, 1893, is discussed as a whole 
 in its appropriate place.'' 
 
 Contracts Within Statute of Frauds, s. 4. — The 
 section applies to sales by auction as well as to sales by 
 private contract ;" but it does not apply to sales by the 
 Court." It applies also to any contract that concerns 
 
 ' 29 Car. II. c. 3. 
 •-' 56 and 57 Vict. c. 71. 
 
 •' See post, Part II., Chapter I., p. 122 et seq. 
 
 * Blagden v. Bmdbear (1806) 12 Ves. 466; Kcnxvorfliy v. Schofidd 
 •(1824) 2 B. & C. 945. 
 
 ■^ See Part IV., Chapter II., post.
 
 42 vl:xdors and purchasers. 
 
 land.' Anv transaction which substantially deals with, 
 an interest in land is within the section r such as the- 
 sale of a business with possession of the premises where- 
 it is carried on ;" a contract to procure a lease or interest 
 in land for another person;' an offer to sell, and the 
 exercise of an option to purchase land ;' the equitable 
 interest of a purchaser under a contract of sale;' a 
 contract for sale of the benefit of a mortgage or charge- 
 upon land.' 
 
 Contracts W^ithix the Sale of Goods Act, 1893. — 
 By Section 62 (1) of the Sale of Goods Act, 1893, unless 
 the context or subject-matter otherwise requires,, 
 "goods" include all chattels personal other than 
 things in action and money, and in Scotland all cor- 
 poreal moveables except money. The term includes 
 emblements, industrial growing crops, and things 
 attached to or forming part of the land which are 
 agreed to be severed before or under the contract of 
 sale. 
 
 It is sometimes a matter of difficulty to determine 
 whether a transaction in respect of growing crops is a 
 sale of an interest in land within Section 4 of the Statute 
 of Frauds, or a sale of goods within the Sale of Goods 
 Act, 1893. 
 
 Emblements or Frlxtus Industrl\les. — The sale of 
 emblements, i.e., crops produced by cultivation, or 
 jructus industriales, though in a growing state and 
 intended to remain on the land until maturitv, and to 
 be then severed, is not a sale of any interest in land 
 within the fourth section of the Statute of Frauds, but 
 is a sale of goods within Section 4 of the Sale of Goods 
 Act, 1893.* Such are sales of a growing crop of corn f 
 
 ' McManiis v. Cooke (1887) 35 Ch. D. 687. 
 -' Kelly V. Webster (1852) 12 C.B. 290. 
 
 •• Smart v. Harding (1855) 15 C.B. 052 ; Hodgson v. Jolinson fl859)' 
 E B. & E. 685. 
 
 * Horsey v. Graham (1869) 5 C.P. 9. 
 
 Bhtninghani Canal Coy v. Carticright (1879) 11 Cli. D. 421. 
 '' Kelly V. Webster, supra. 
 ■ Toppin V. Lonias (1855) 16 C.B. 145. 
 
 " See Diippa v. Mavo (1669) 1 Wms. Saund 394 n. ; Marshall v. 
 Green (1875) 1 C.B.D. 35. 
 
 » Joties V. Flint (1839) 10 A. & E. 753.
 
 FORMATION OF CONTRACT. 43 
 
 a i^rowin*^- crop of potatoes;' a i^Tow in<,^ crop of tur- 
 nips," and presumably aitiluial <^rasses, such as 
 clover.' 
 
 I^""ri(^tl's XATfR \li:s. — A pri-Qwin^ crop of <^rass,' 
 the natural j^rowth of the land, or growing trees or 
 underwood,'" and a <jfro\\ incr crop of fruit on fruit trees,** 
 are the natural product of the land, friictus naturales, 
 and not emblements, and a contract for the sale of 
 these is within the fourth section of the Statute of Frauds 
 as a contract for the sale of an interest in land. 
 
 RiLK OF Distinction-. — It seems to be settled that if 
 the property in the crops is to pass after the crops are 
 severed from the soil, then whether they are fructus 
 industriales or fructus naturales, the crops are goods 
 within the Sale of Goods Act, 1(S98.' If the property is 
 to pass before severance, fructus industriales are goods 
 and fructus naturales are an interest in land.'' 
 
 Buildings. — Under a contract to build a house the 
 builder has only a mere licence to enter upon land for 
 the purpose of his work.'' Building contracts are not, 
 therefore, necessarily within the fourth section of the 
 Statute of Frauds,'" but they are within the section if a 
 tenancy is created under the contract." A contract for 
 the sale of building materials of a house, the house to 
 be pulled down by the buyer, with a condition that all 
 materials should be cleared away within two months, 
 after which the purchaser's right of access to the site 
 
 ' Evans v. Roberts (1829) 5 B. & C. 829. 
 
 - Wellaway v. Courtier (1918) 1 K.B. 200; Watts v. Friend (lii30) 
 10 B. & C. 446. 
 
 •"■ See Graves v. Weld (1833) 5 B. & .Vd. 105. 
 
 ^ Carrington v. Roots (1837) 2 M. & W. 248 ; Crosby v. Wadsworth 
 (1805) 6 East 602 : but see Washburn v. Burrows (1847) 1 Ex. 107. 
 
 "■ Teal V. Auty (1820) 2 Br. & B. 99; Scorell v. Boxall (1827) 1 Y. & J. 
 396 ; but a sale of standing timber at so much per foot is a sale of goods; 
 see Smith v. Siirnian (1829) 9 B. & C. 561. 
 
 '■ Rodwell V. Phillips (1842) 9 M. & W. 501. 
 
 ■ See Sale of (ioods .\ct, 1893, Sect, 62. 
 
 " See Smith v. Surman (1829) 9 B. & C. 561 ; Falmouth v. Thomas 
 (1832) 1 Cr. & M. 105 ; Marshall v. Green (1875) 1 C.P.D. 35. 
 
 ■' Camden v. Batterbury (1859) 5 C.B. N.S. 808. 
 
 '^' See Sanderson v. Graves (1875) 10 Ex. 234. 
 
 " Adams v. Hagger (1879) 4 Q.B.D. 480.
 
 44 VENDORS AND PURCHASERS. 
 
 was to cease, was held to be within the fourth section 
 of the Statute of Frauds on the ground that the house 
 wliich was still standino- at the date of the contract was 
 a hereditament, and that the purchaser's interest 
 amounted either to a demise or to an irrevocable licence/ 
 But the definition of goods within the Sale of Goods 
 Act, 1893, includes things attached to the land, but 
 wliich are agreed to be severed under the contract, and 
 it would seem, therefore, that a similar contract would 
 now be within Section 4 of the Sale of Goods Act, 1893, 
 and not Avithin Section 4 of the Statute of Frauds. 
 
 Fixtures. — A sale of tenant's fixtures by the tenant 
 to the landlord has been held not to be within the fourth 
 section of the Statute of Frauds, though they are sold 
 while attached to the freehold;^ the so-called sale being 
 merely a renunciation of the right to remove them. A 
 sale of unsevered landlord's fixtures, where they are to 
 remain in situ,^ would seem to be, not a contract for the 
 sale of goods, but a contract concerning an interest in 
 land within Section 4 of the Statute of Frauds.'' 
 
 Section 2 — Memorandum in Writing. 
 
 When to be Made. — A memorandum in writing in 
 compliance with the Statute may be made at any time 
 after the making of the contract, but must be made 
 before action is brought.* A contract in writing, if 
 signed by the party to be charged, is, of course, a 
 sufficient note or memorandum for the purpose. If an 
 original memorandum is lost, its contents may be proved 
 by secondary evidence.'^ 
 
 What Writings Sueficient. — No special form is 
 required;' any document containing the essential terms 
 
 ' Lavery v. Purscll (188S) 39 Ch. D. 508. 
 
 ■■^ Hallen v. Runder (1834) 1 CM. & R. 266 ; Lcc v. Risdon (1816) 
 7 Taunt. 188; Lee v. Gaskell (1876) 1 Q.B.D. 700. 
 
 •' Jill-vis V. J(u-vis (1893) 63 L.J. Ch. 10. 
 
 ' See Crokcr v. Morrison (1914) 1 Ch. 50. 
 
 •'• Sicvewright v. Archibald (1851) 17 Q.B. 107; Re Holland (1902) 
 2 Ch. 360. 
 
 " Berwick V. Horsfall (1858) 4 C.B. N.S. 450 ; Read v. Price (1909) 
 2 K.B. 724. 
 
 ' Wclford V. lieazely (1747) 3 Atk. 503.
 
 FOR.MATION OF CONTRACT. 45 
 
 of tlie contract and signed b\ the party to be charged 
 or his agent, is a sufficient memorandum. Thus, the 
 following have been held sufficient to satisfy the statute : 
 A letter containing the essential terms of the contract, 
 or referring to a document which exjDresses those terms;' 
 a receipt containing the terms of the agreement, 
 though not admissible as evidence of payment for want 
 of a stamp;' an order book of a tradesman, containing 
 a list of the articles bought or sold and signed by tiie 
 buyer or seller;^ a letter written and signed b\- one of 
 the contracting parties to his own agent and containing 
 the terms of the contract;' written and signed instruc- 
 tions to a telegraph clerk in pursuance of which he sent 
 a telegram referring to the offer and accepting it ;' a 
 signed rough draft of an agreement, the parties con- 
 templating the preparation and execution of a more 
 formjil agreement;* a recital in a deed or will;' an 
 affidavit in Chancery proceedings concerning another 
 matter, containing the terms of agreement;^ a letter 
 which contains an admission of the bargain and of all 
 its essential terms, though it contains a repudiation of 
 liability;'' letters written with reference to a pending 
 dispute as to whether a parol agreement has been duly 
 performed and embodying the terms of that agree- 
 ment;'" the vendor's receipt for the purchase-money 
 or deposit, or a similar receipt signed by the auction- 
 eer, or the entry of a sale made by him in his books;" 
 
 ^ Bailey v. Su-ceting (1861) 9 C.B. N.S. 843 ; Cave v. Hastings (1881) 
 7Q.B.D. 125. 
 
 '' Evans v. Prothero (1852) 1 De G.M. & G. 572. 
 
 "" Johnson v. Dodgson (1837) 2 M. & W. 653; Sari v. noun/illon 
 (1856) 1 C.B. N.S. 188 ; Jones v. Joyncr (1900) 82 L.T. 768. 
 
 ^ Gibson v. Holland (1865) 1 CP. 1. 
 
 « Godwin v. Francis (1870) 5 C.P. 295. 
 
 " Gray v.' Smith (1889) 43 Ch. D. 208; Morgan v. Worthiiigton 
 (1878) 38 L.T. 443. 
 
 ' Re Hoyle (1893) 1 Ch. 84 ; Re Holland (1902) 2 Ch. 360. 
 
 ^ Barkworth v. Young (1856) 4 Drew. 1. 
 
 ^ Bailev v. Siceefi)ig, supra ; Gibson v. Holland, supra ; Dcicar v. 
 Mintoft (1912) 2 K.B. 373 ; and see Smith v. Siirman (1S29) 9 B. & C. 
 561 ; Archer V. Baynes (1850) 5 Exch. 625. 
 
 '° Fyson v. Kitton (1855) 3 C.L.R. 705; Stitdds v. Watson (1885) 28 
 Ch. D. 305. 
 
 '1 Coles V. Trecothick (1804) 9 Yes. 234; Blagdcn v. Bradbcar (1806) 
 12 Ves. 466; Gosbell v. Archer (1835) 2 Ad. & El. 500; Oliver v. 
 Hunting (1890) 44 Ch. D. 205 ; Carr v. Lynch (1900) 1 Ch. 613.
 
 46 VENDORS AND PURCHASERS. 
 
 a bond of reference to a surveyor to settle the price to 
 be paid by the purchaser.' And if a defendant by his 
 defence to an action for specific performance admits the 
 parol agreement but neglects to plead the statute, this 
 will constitute a sufficient memorandum." 
 
 Broker's Bought and Sold Notes. — Broker's 
 bought and sold notes should be identical except in 
 respect of the correlative words " bought " and 
 " sold." If, therefore, one of the notes is produced it 
 is sufficient to charge the other party, whether he is 
 charged as buyer or seller, as it will be presumed that 
 the other note agrees with it, substituting the word 
 " bought " for " sold," or vice versd.^ If the broker 
 has not entered or signed a sufficient memorandum in 
 his own book, and the notes differ in any material term, 
 there is no binding contract.^ But where the broker has 
 made and signed an entry in his own book, and the 
 entry forms the ruling memorandum, whether there be 
 bought and sold notes or not, there is a sufficient memo- 
 randum, and any variance between bought and sold 
 notes is immaterial.^ 
 
 Memorandum Contained in Several Writings. — 
 Where several writings are relied upon as constituting 
 a sufficient memorandum so as to satisfy the statute, 
 they must be sufficiently connected by internal reference 
 either direct or inferential; and extrinsic evidence is 
 ^admissible to apply the references and to identify the 
 writings referred to.*^ And where it is sought to estab- 
 lish a contract by letters which have passed between 
 different parties, the Court will take into consideration 
 the whole of the correspondence which has passed, and 
 will not draw the line at an}- particular letter or letters 
 
 ' Cooth V. Jackson (1801) 6 Ves. 17. 
 
 '' Ridguay v. Wharton (1853) 3 De M. & G. 677; Jackson v, 
 Oglandcr (1865) 2 H. & M. 465. 
 
 ••' Parton v. Cro;ts (1864) 16 C.B. N.S. 11. 
 
 * Grant v. Fletcher (1826) 5 B. & C. 436; Sicvcwright v. Archibald 
 0851) 17 Q.B. 103. 
 
 * Thompson v. Gardiner (1876) 1 C.P.D. 777. 
 
 « Ridgway v. Wharton (1857) 6 H.L.C. 238; Long v. Millar (1879) 4 
 C.P.D. 456 ; Oliver v. Hunting (1889) 44 Ch. D. 205 ; Taylor v. Smith 
 <1893) 2 Q.B. 65.
 
 FORMATION OF CONTRACT. 
 
 which mif^lit have atToicled evidence of a contract, if 
 considered apart from the rest.' 
 
 Thus, a sufficient memorandum was constituted by : 
 correspondence between the parties sufficiently con- 
 nected together by their contents and containing or 
 referring to documents containing the terms of the con- 
 tract ;' a letter acknowledging an agreement according 
 to " instructions " given to a solicitor when parol 
 evidence was admitted to identify the instructions;'' a 
 letter referring to " terms agreed upon " or " our 
 arrangement " identified with a previous memorandum 
 of terms;' a letter referring to a memorandum of agree- 
 ment and supplying particulars in which the memoran- 
 dum was deficient;" a letter referring to an invoice or 
 bill of parcels sent upon a sale of goods;" a letter 
 written after a sale by auction referring to the particu- 
 lars or conditions of sale;' a contract of sale of property 
 and a separate plan incorporated bv reference;^ an 
 envelope and the letter enclosed ;'■* two documents re- 
 ferring independenth' to the same parol agreement and 
 together expressing the terms of the agreement, though 
 without direct reference to one another;'" a carbon 
 copy of a typewritten " contract " not containing the 
 purchaser's name, but with words " I agree to purchase " 
 premises described at a sum named, to pay a deposit, 
 to complete within a limited time, and vendor to show 
 a good title, the copy being signed by an agent for 
 defendant as " vendor," and the original being signed 
 
 ' Hitsscy V. Hornc-Paync (1879) 4 A. C. 311 : Bristol, &c.. Bread 
 Coy. V. Maggs, 44 Ch. D. 616 ; and see p. 32 ante. 
 
 "^Jackson V. Lowe (1822) 1 Bing. 9; Wylson v. Dunn (1887) 34 
 Ch.b. 569. 
 
 ■■• Ridgu-ay v. U7i<7;Yo;t (1853) 3 De \I. & G. 677. 
 
 * Baumann \\ James (1868) 3 Ch. 508; Cine v. Hastings (1881) 7 
 Q.B.D. 125. 
 
 ■ Coombes v. Wilkes (1891) 3 Ch. 77. 
 
 ^ Saunderson v. Jackson (1800) 2 B. & P. .?38 ; Wilkin.'ion v. Evan.s 
 (1866) 1 C.P. 407. 
 
 ' Filbv V. Hoiinsell (1896) 2 Ch. 737; Dobell v. Hutchinson (1S35) 3 
 A. & .E 355. 
 
 ** Hodges V. Horsfall (1829) 1 Russ. & M. 116 ; Ncne Valley Drainage 
 Commrs. v. Dunkley (1876) 4 Ch. D. 1. 
 
 •' Pearce v. Gardner (1897) 1 Q.B. 688. 
 
 '" Studds V. Watson (1885) 28 Ch. D. 305.
 
 48 VENDORS AND PURCHASERS. 
 
 by the plaintiff, who gave a cheque for the deposit, and 
 a receipt for the deposit being put upon the carbon copy 
 and signed by the agent;' agreement and receipt;' 
 two letters;' receipt of auctioneer, memorandum, and 
 conditions of sale ;^ memorandum of agreement signed 
 by the vendor, but which omitted to mention the pro- 
 perty sold, and letter acknowledging the receipt of the 
 money and describing the property, also written by 
 vendor/ 
 
 What Memorandum Must Contain. — The note or 
 memorandum, whether under the fourth section of the 
 Statute of Frauds or under the fourth section of the Sale 
 of Goods Act, 1893, must contain all the material terms 
 of the contract as made and charged. The memoran- 
 dum must sufficiently indicate the date when the con- 
 tract was entered into ; the contracting parties ; the con- 
 sideration and the property the subject-matter of the 
 contract ; and it must import the agreement of the party 
 charged by his signature to the memorandum or the 
 signature of his agent.® 
 
 Contracting Parties. — The writing must name both 
 the contracting parties or describe them in such a 
 manner as to identify them and which is the buyer and 
 which is the seller.^ Where the description of the 
 parties is ambiguous as to which party is buyer and 
 which is seller, parol evidence is admissible to prove 
 the surrounding circumstances, from which the relative 
 positions of the parties may be inferred.® A memoran- 
 dum of sale describing a party merely as *' vendor " or 
 "purchaser" is not sufficient to indicate or identify 
 any person, although the purchaser or vendor at the 
 time of making the contract knew who the other was.® 
 
 ' stokes V. Whichcr (1920) 1 Ch. 411. 
 
 « Long V. Millar (1879) 4 C.P.D. 450. 
 
 '' Sheers v. Thimhleby (1897) 76 L T. 709. 
 
 * Shardlow v. Cottcrcll (1881) 20 Ch. D. 90. 
 
 " Oliver v. Hunting (1890) 44 Ch. D. 205. 
 
 « See Van Praagh v. Ever id ge (1903) 1 Ch. 434. 
 
 ' Potter V. Duffield (1874) 18 Eq. 4; Williams v. Lake (1859) 2 
 E. & E. 349 ; Carr v. Lynch (1900) 1 Ch. 613 ; Dcuar v. Mintoft (1912) 
 2 K.B. 373. 
 
 " Newell V. Radford (1867) 3 C.P. 52. 
 
 » Potter V. Duffield, supra; Jarrctt v. Hunter (1886) 34 Ch. D. 182.
 
 FORMATION OF CONTRACT. 49 
 
 A description of the vendor as "the proprietor," 
 " owner " or " mortg-agee " of the property described 
 is sufficient to identify him and satisfy the statute/ but 
 a description as " landlord " is not sufficient." A 
 description as the " leg-al personal representative " of a 
 person named,' or " the trustee sellino;- under a trust 
 for sale '" is sufficient. 
 
 The Property Sold. — The memorandum must 
 describe the property sold in such a way as, having 
 regard to the circumstances of the case, shows clearly 
 what is intended to be sold.^ A general description of 
 the estate, e.g., " Mr. O's house,"" or "my house,"' 
 or " the property in Cable Street,"^ or "the house in 
 Newport,"^ or " the intended new public-house at Put- 
 ney,"^" or " the premises,"" or " ihe Jolly Sailor Offices, 
 etc.,"'" or " this place,"" or " properlv purchased at 
 £420 at Sun Inn, Pinxton, on 29th' March,"'* or 
 " twenty-four acres of land, freehold, at T., in the 
 parish of D.," when it appeared that the vendor pos- 
 sessed no other land answering to that description,'* is 
 sufficient, if parol evidence can be produced to show 
 what propertv was intended. But where an agreement 
 refers"' to an existing" plan or instrument, parol 
 
 ' Sale V. Lambert (1876) 18 Eq. 1 ; Rossiter v. Miller (1878) 3 App. 
 Cas. 1124. 
 
 2 Coombes v. Wilkes (1891) 3 Ch. 77. 
 ^ Towle V. Tophain (1877) 37 L.T. 308. 
 ^ Catling V. King (1876) 5 Ch. D. 660. 
 ■'' See generally cases cited below. 
 
 ^ Ogilvic V. Foljamhe (1817) 3 Mer. 53: Owen v. Thomas (18341 3 
 M. & K. 353. 
 
 ■ Cowley V. Watts (1853) 17 Jur. 172. 
 » Bleakley v. Smith (1840) 11 Sim. 150. 
 ^ Owen V. Thomas, supra. 
 "" Wood V. Scarth (1855) 2 K. & J. 33. 
 
 " Ibid. : M'Mitrray v. Spicer (1868) 5 Eq. 527 ; Ex parte Nat. Prov. 
 Bank (1876) 4 Ch. D. 241. 
 
 •■- Naylorv. Goodall (1877) 47 L.J. Ch. 53. 
 
 " Waldron v. Jacob (1870) 5 Ir. R. Eq. 131. 
 
 '^ Shardlow v. Cotterell (1882) 20 Ch. D. 90. 
 
 •■' Plant V. Bourne (1897) 2 Ch. 281. 
 
 "^ See Nene Valley Drainage Cotnmrs. v. Dunkley (1876) 4 Ch. D. 1. 
 
 '" Adams V. Wheatley (1855) 3 W.R. 96. 
 
 4
 
 50 VENDORS AND PURCHASERS. 
 
 evidence is admissible to identify the plan or instru- 
 ment,' which must be sufficiently explicit to admit of a 
 legal construction,' unless the contract was in effect 
 made in two parts by a sufficient memorandum being 
 endorsed on the plan." Letters concerning the sale of 
 a colliery and referring to " the property " were held 
 not a sufficient memorandum for the sale of a colliery, 
 including the plant, machinery and effects.^ 
 
 \^endor's Interest in Property Sold. — On a con- 
 tract for the sale of land, the extent of the vendor's 
 interest in the property need not be mentioned. In the 
 absence of any indication to the contrary, it is implied 
 that the whole of the vendor's interest in the land is the 
 subject of the agreement,^ and that that interest is an 
 estate in fee simple*^ free from incumbrances,' unless 
 the purchaser had notice, before entering into the con- 
 tract, that the title which the vendor was able to give 
 was subject to limitations and incumbrances which the 
 vendor could not remove f but such notice does not 
 affect the liability of a vendor who expressly agrees to 
 show a good title.'' Where the nature of the interest 
 does not appear from the contract, the vendor cannot 
 force the purchaser to accept," nor the purchaser force 
 the vendor to grant" any less estate than the fee simple. 
 But an agreement by a vendor to sell " all his estate 
 and interest " does not necessarily imply that the 
 interest to be sold is the fee simple.^" 
 
 • Hodges V. Horsfall (1829) 1 Russ. & My. 116. 
 
 ■•* Monro v. Taylor (1850) 8 Hare, 51. 
 
 •^ See iVcnc Valley Dniinagc Coiiinirs. v. Diniklcy (1875) 4 Ch. D. 1. 
 
 ^ Vale of Neath Colly, v. Furness (1876) 45 L.J. Ch. 276. 
 
 '■ Bower v. Cooper (1843) 2 Hare, 408. 
 
 « Hughes V. Parker (1841) 8 M. &W. 244 ; Cox v. Middlcton (1854) 
 
 2 Drew. 209. 
 
 ' Phillips V. Caldcleugh (1868) 4 Q.B. 159; Catov. Thompson (1882) 
 9 Q.B.D. 616. 
 
 •" Cowley V. Watts (1853) 17 Jur. 172 ; Cox v. Middlctoti, supra ; Re 
 Gloag and Miller's Contract (1883) 23 Ch. D. 320; Ellis v. Rogers 
 (1885) 29 Ch. D. 661. 
 
 " Cato V. Thompson, supra. 
 
 '" Southern v. Harriman (1886) 14 W.R. 487. 
 
 " Hughes V. Parker (1841) 8 M. &W. 244 ; Western v. Russell (1814) 
 
 3 Ves. & B. 192. 
 
 "» Freme v. Wright (1819) 4 Madd. 364 ; Priddle v. Wood (1864) 4 
 N,R. 320; May v. Piatt (1900) 1 Ch. 616.
 
 FORMATION OF CONTRACT. 51 
 
 On a contract for the sale of goods, the old common 
 law rule was that there was no implied undertaking on 
 the part of the vendor as to his title to the goods/ but 
 the exceptions made to the rule almost extinguished it r 
 and now, as regards goods within the Sale of Goods 
 Act, 1893,^ unless the circumstances are such as to show 
 a contrary intention, there is implied that the vendor 
 has a right to sell the goods, or, in the case of an 
 agreement to sell, he will have such a right at the time 
 when the property is to pass." 
 
 The Price. — In contracts for the sale of lands, the 
 consideration, i.e., the money-price, which is an essen- 
 tial part of the contract, must appear from the memo- 
 randum.^ A receipt for the deposit has been held 
 insufficient, because it did not state either the price or 
 what proportion the deposit bore to the price ;* but 
 where there was an agreement for sale at a specified 
 price and " 20 per cent, upon any sum which the pro- 
 perty might realise above that sum " at a sale by 
 auction advertised to take place the next day, and the 
 vendor withdrew the property from the sale, it was held 
 that there was a valid contract since the price was sul^fi- 
 ciently certain/ 
 
 If the price is not fixed, but is to be ascertained in 
 a definite manner, that manner must be specified/ if 
 
 ' Noy's Maxims, Ch. 42 ; Paget v. Wilkinson (1695) cited in William- 
 son V. Allison (1802) 2 East, 446, 448; Ormrod v. Hiith (1845) 14 
 M. & W. 651. 664. 
 
 - See Sims v. Marryat (1851) 17 Q.B. 281, per Lord Campbell, C.J. 
 at p. 291. 
 
 ■' Sect. 12 (1) ; Allen v. Hopkins (1844) 13 M. & W. 94 ; Edwards v. 
 Pearson (1890) 6 T.L.R. 220 
 
 * See Monforts v. Marsdcn (1895) 12 R.P.C. 266, 269 ; and Part II., 
 Chapter I., post, p. 135. 
 
 ■' Wain V. Warlters (1804) 5 East. 10. 
 
 ^ Blagden v. Bradhcar (1806) 12 Ves. 466 ; Morgan v. Milinan (1853) 
 3 De G. M. & G. 24; Clarke v. Wright (1737) 1 Atk. 12; Elmore v. 
 Kingscote (1826) 5 B. & C. 583 ; Milnes v. Gery (1807) 14 Ves. 400. 
 
 "^ Langstaff V . Nicholson (1858) 25 Beav. 160 ; cf. Bromley v. Jewries 
 (1700) 2 Vern. 415. 
 
 ^ Milnes v. Gery (1807) 14 Ves. 400; Wilks v. Davis (1817) 3 Mer. 
 507 ; Frewen v. Hays (1912) 106 L.T. 516 ; Blundcllv. Brettargh (1810) 
 17 Ves. 232 ; Gourlay v. Somerset (1815) 19 Ves. 429 ; Morgan v, Milman 
 (1853) 3 De G. M. & G. 24 ; Vickcrs v. Vickcrs (1867) 4 Eq. 529 ; Firth 
 V. Mid. Rly. Coy. (1875) 20 Eq. 100.
 
 52 VENDORS AND PURCHASERS. 
 
 the price is to be the fair value of the property, that fact 
 must be stated or implied.' It is sufficient if the memo- 
 randum is so framed that any person of ordinary 
 capacity must infer from the perusal of it what was the 
 actual consideration upon which the undertaking was 
 given." Where the memorandum does not state the 
 price or provide for its ascertainment, an agreement 
 that the sale shall be for a reasonable price is not im- 
 plied,^ and the contract is unenforceable.^ 
 
 In contracts for the sale of goods, the price may be 
 fixed by the contract, or may be left to be fixed in a 
 manner thereby agreed, or may be determined by the 
 course of dealing between the parties.^ Where there is 
 no actual agreement as to the price, the law will import 
 into the bargain a promise by the buyer to pay a 
 reasonable price. "^ 
 
 Price Determined by Valuation. — The price may 
 be left to be fixed by the valuation of a third party," and 
 a general agreement to sell " at a fair valuation " may 
 be enforced, and the Court will, if necessary, direct a 
 reference to ascertain the price.® Where the mode of 
 valuation is specified it must be strictly followed, and 
 a valuation determined in accordance with the terms of 
 the contract is conclusive in the absence of fraud or 
 
 ' Milnes v. Gery, supra . 
 
 '^ Hawcs V. Armstrong, infra. 
 
 ■' Gourlay v. Somerset, supra ; Morgan v. Milman, supra. 
 
 * See Elmore v. Kingscote (1826) 5 B. & C. 583 ; Re Kharaskhoma 
 Syndicate (1897) 2 Ch. 464: Hawes v. Armstrong (1835) 1 Scott 661 ; 
 Re Eyre (1895) 72 L.T. 585; Blagden v. Bradbcar (1806) 12 Ves. 466. 
 
 ' Sale of Goods Act. 1893, Sect. 8 (1) ; see post. Part II., Chapter I., 
 p 130 cf scq. 
 
 « Ibid. Sect. 8 (2). 
 
 • See Sale of Goods Act. 1893. Sect. 8 (1); Smith v. Peters (1875) 
 20 Eq. 511 ; Cannan v. Fowler (1853) 14 C.B. 181 ; Gordon v. White- 
 house (1856) 18 C.B. 747. 
 
 ** Marsh v. Jones (1889) 40 Ch. D. 563 ; and see Milnes v. Gery (1807) 
 14 Ves. 400; Lonsdale v. Gaskarth (1805) cited 12 Ves. 108 ; Blundell 
 V. Brettargh (1811) 17 Ves. 232 ; Gregory \. Mighell {\d,\\) 18 Ves. 328; 
 Pritchard v. Ovey (1820) 1 J. & W. 396; Morgan v. Milman (1853) 3- 
 DeG. M. & C;. 24 ; Gourlay v. Somerset (1815) 19 Ves. 430.
 
 FORMATION OF CONTRACT. 53 
 
 collusion.' It would seem ih.ii where it is not of the 
 essence of the contract that the value should be fixed by 
 arbitration the Court may enforce the agreement, and, 
 if necessar\', ascertain the price." 
 
 \'aluation Distinguished fro.m Arbitr.ation. — It is 
 important to distinguish a valuation from an arbitra- 
 tion.^ The object of a valuation is to fix a price : that 
 of an arbitration is to settle a dispute.^ An agreement 
 for the price to be determined by a valuation generally 
 does not, though it may,^ amount to a submission to 
 arbitration. It may appear from the terms of the agree- 
 ment that the intention of the parties was that the 
 Referee should hold an enquiry in the nature of a 
 judicial inquiry, and decide upon evidence laid before 
 him ; the case is then one of arbitration. Cases of any 
 difificulty must be determined each according to its par- 
 ticular circumstances.* 
 
 If the parties agree that the price shall be as subse- 
 quently arranged between them, no contract of sale 
 exists unless and until the price is fixed," and the rule 
 of reasonable price, implied in the case of goods, does 
 not apply in the case of lands as the parties have im- 
 pliedly excluded it. But in the case of goods, a contract 
 will exist if an intention can be inferred that at any rate 
 a reasonable price shall be paid if the price is not fixed.* 
 In the case of a sale at a valuation, where the valuer 
 
 ' Milnes v. Gery, supra ; Cooth v. Jackson (1801) 6 Ves. 12 ; Gourlay 
 V. Somerset, supra ; Collins v. Collins (1858) 26 Beav. 306 ; Morgan v. 
 Milman, supra ; Darhcv v. Whittaker (1857) 4 Dr. 134; Scottv. Avery 
 (1855) 5 H.L.C. 811; 'Vickers v. Vickers (1867) 4 Eq. 52') ; Caled. 
 Inscc. Coy. v. Gilmour (1893) A.C. 85 ; Houghton v. Bankart (1861) 3 
 DeG. F. & J. 16; Spurrier v. Le Cloche (1902) A.C. 446; Collier v. 
 Mason (1858) 25 Beav. 200; Wcekcs v. Gallard (1SC9) 21 L.T. 655. 
 
 •^ Dinham v. Bradford (1869) 5 Ch. 519. 
 
 ' Collins V. Collins (1858) 26 Beav. 306 ; Re Dawdy (1885) 15 Q.B D. 
 426; Re Carus-Wilson (1886) 18 Q.B.D. 7; Re Hammond and Water- 
 ton (1890) 62 L.T. 808 ; Bos v. Helsham (1866) 2 Ex. 72. 
 
 * Re Carus-Wilson, supra. 
 
 ■• Re Hopper (1867) 2 Q.B. 367 ; Vickers v. Vickers (1867) 4 Eq. 529 ; 
 Chambers v. Goldthorpe (1901) 1 K.B. 624. 
 
 '' Re Carus-Wilson, supra. 
 
 ■ Loftus V. Roberts (1902) 18 T.L.R. 532 ; cf. Broome v. Speak (1903) 
 1 Ch. 586. 
 
 "^ Jewry v. Bush (1814) 5 Taunt. 302; Bryant v. Flight (1839) 5 
 M. & W. 114.
 
 54 VENDORS AND PUR CHASERS . 
 
 cannot or will not make such valuation, the question 
 sometimes arises whether the provision for valuation is 
 collateral to the contract or is a condition non-perform- 
 ance of which justifies avoidance.' In the case of goods, 
 Section 9 (1) of the Sale of Goods Act, 189-3, provides, in 
 such a case, that if the goods or any part thereof have 
 been delivered to and appropriated b}' the buyer, he 
 must pa}- a reas(jnable price for the same.' And where 
 the valuer is prevented from making the valuation by 
 the fault of the seller or buyer, the party not in fault 
 mav maintain an action in damages against the other. ^ 
 
 Agrklmknt of Party Charged. — It must appear 
 from the memorandum that the party to be charged has 
 agreed to the terms of the contract. An express or 
 implied admission of the existence of the contract is 
 sufficient/ even though the writing repudiates liability 
 for a reason which does not affect the validity of the 
 contract/ or disputes a breach/ or asserts a construction 
 according to which the party to be charged would not 
 be liable/ or states a refusal to accept or pa}' for the 
 goods by reason of the goods having been damaged in 
 transit.** 
 
 Memorandum Varying from Contract. — The memo- 
 randum must agree with the contract charged, without 
 leaving any material term or variation to be supplied 
 by parol evidence. Thus, a memorandum of a sale of 
 goods omitting to mention a price, and, therefore, 
 presumptivelv importing a reasonable price, is not suffi- 
 cient to support an action on a contract where the price 
 under the parol agreement was fixed or was to be fixed 
 
 ' See Thurnell v. Balhiniie (1837) 2 M. & W. 786 ; Vickcrs v. Vickcrs 
 (1867) 4 Eq. 529. 
 
 '^ Clarke v. Wcstrope (1856) 18 C.B. 765. 
 
 •■' Sale of Goods Act, 1893. Sect. 9 (2). Thomas v. Fredricks (1847) 
 10 Q.B. 775 ; Smith v. Peters (1875) 20 Eq. 511. 
 
 * See cases infra ; and Wood v. Midglcy (1854) 5 De G. M. & G. 41 : 
 Warner v. Willington (1856) 3 Drew. 523 ; Munday v. Asprev (1879) 13 
 Ch. D. S55 ; Rcuss v. Picksley (1866) 1 Ex. 342 ; Leather Cloth Coy v. 
 Heironimus (1874) 10 Q.B. 140. 
 
 ■ liailey v. Sweeting (1860) 9 C.B. N.S. 843. 
 
 8 Buxton V. Rust (1872) 7 Ex. 279. 
 
 ' Jackson v. Loue (1882) 1 Bing. 9. 
 
 " Wilkinson v Evans (1866) 1 C.P. 407.
 
 FORMATION OF CONTRACT. 55 
 
 in a manner ai,Teed upon.' Ami wliciv it was a^Teed 
 that the puirhase price for an estate was payable in 
 instahnents. letters agreeint^ to buy the estate at a stated 
 price, presumptively payable in one sum, are not a 
 sufficient memorandum." An entry of a lot purchased 
 at a sale by auction with the price is not sufficient to 
 include the conditions of sale;' nor is a broker's sale 
 note in absolute terms a sufficient note of a sale made 
 upon conditions as to equality.' A letter admitting a 
 sale as charged, but asserting an additional stipulation 
 as to delivery," or a condition as to quality.'' or that 
 tlie goods were bought b\' sample,' is not sufficient.'' 
 
 Signature of Party to bk Charghlx — A part\- sign- 
 ing an agreement is prima facie bound bv it, though it 
 is not signed by the other party ;" but it mav be shown 
 that he intended to be bound only in the exent of the 
 other party also signing it.'" But a part\- bringing an 
 action upon a contract is taken to admit the alleged 
 contract to be binding on iiimself." The statutes do not 
 rec{uire the memorandum to be signed by both parties; 
 all that it requires is that where A brings an action 
 against B, the memorandum of the contract should bear 
 B's signature or that of B's agent. Thus, it is sufficient 
 if the party to be charged has signed the proposal of 
 iin agreement which the other has accepted verballv;" 
 and a written and signed offer expressed in the alterna- 
 
 ' See Sale of Goods Act, 1893, Sect. 8 ; Acebal v. Lew (1834) 10 Bing. 
 376 ; Hoadly v. McLaine (1834) 10 Bing. 482. 
 
 ■'' Husscy V. Honic-Paync (1879) 4 App. Gas. 317. 
 
 ••' Pcircc V. Corf (1873) 9 Q.B. 210. 
 
 ^ Pitts V. Beckett (1845) 13 M. & W. 743. 
 
 •' Cooper V. Smith (1812) 15 East. 103; Richards v. Porter (1827) 6 
 B. &C. 437. 
 
 6 Sviith V. Siiniuni (1829) 9 B. & G. 561. 
 
 • Archer v. Bayties (1850) 5 Ex. 625. 
 
 ** And see infra, as to operation of statutes, Sect. 3, p. 56. 
 
 9 Seton V. Slade (1802) 7 Ves. 265 ; Oxren v- Thomas (1834) 3 M. & K. 
 353 ; Egerton v. Matheivs (1805) 6 East 307 
 
 1" Moo;r v. Campbell (1854) 10] Exch. 323; see Alderton v. Archer 
 (1884) 14 Q.B.D. 1. 
 
 " Reuss V. Picksley (1866) 1 Ex 342; Baker v. Yorks. Fire, S-c, 
 Assce. (1S92) 1 Q.li 144.
 
 56 VENDORS AND PURCHASERS. 
 
 live and accepted verbally according to one alternative 
 is sufficient/ 
 
 A signature printed, or stamped," instead of written, 
 or by initials,^ or mark," may be binding, and it is not 
 the less binding by reason of alterations and signature 
 being in pencil instead of in ink/ The signature of 
 instructions for a telegram is sufficient/ 
 
 The signature is usually placed at the end of a docu- 
 ment ; but the statutes require only a signing and not 
 a subscribing ; and the signature may therefore be 
 inserted in any part of the document provided it is 
 so inserted as to govern or authenticate every material 
 part of the document and not particular portions exclu- 
 sively/ 
 
 Signature by Agent. — The authority of an agent to 
 sign documents on behalf of his principal and the effect 
 and sufficiency of such signature are matters which are 
 discussed in a later part of this book.^ 
 
 Section 3 — Effect of the Statutes. 
 
 Effect of Both Statutes the same. — The operation 
 of the fourth sections of the Statute of Frauds and the 
 Sale of Goods Act, 1893, in so far as the latter requires 
 a note or memorandum in writing, is the same. The 
 true construction of these sections is not to render con- 
 tracts within them void, still less illegal, unless evidenced 
 by a signed memorandum in writing, but is to render 
 
 ' Lever V. Koffler (1901) 1 Ch. 543. 
 
 2 Saiinderson v. Jackson (1800) 2 B. & P. 238 ; Schneider v. Norris 
 (1813) 2 M. & S. 286; Reg. v. Couper (1890) 24 Q.B.D. 60 ; Jones v. 
 Joyner (1900) 82 L.T. 76 ; Bennett v. Briimfitt (1867) 37 L.J.. C.P. 25. 
 
 •■' Phillimore v. Barry (1808) 1 Camp. 513 ; Chichester v. Cobb (1866) 
 14 L.T. 433. 
 
 * Baker v. Dening (1838) 2 Jur. 775 ; Reynolds v. Hooper (1903) 19 
 T.L.R. 33. 
 
 * Lucas V. James (1849) 7 Hare, 410. 
 
 « Godwin V. Francis (1870) 5 C.P. 295 ; Harvey v. Facey (1893) A.C. 
 552 ; McBlainc v. Cross (1871) 25 L.T. 804. 
 
 ^ Caton V. Caton (1867) 2 H.L. 127; Ogilvie v. Foljaiube (1817) 3 
 Mer. 53; Tourretw Cripps (1879) 48 L.J. Ch. 567; Re Hoyle (1893) 
 1 Ch. 84; and see Hubert \. Treherne (1842) 3 Man. & G. 743. 
 
 " S&cpost, Chapter VI., p. 83, ct seq.
 
 FORMATION OF CONT RACT. 67 
 
 the kind of evidence required indispensable when it is 
 sought to enforce the contract.' 
 
 Contracts Partly Within thi-: Statute. — A con- 
 tract which is indivisible, but which is partly within and 
 partly without the statute, is unenforceable unless the 
 requirements of the statute are complied with.' Thus, 
 a contract for the sale of goods to the value of £10 or 
 upwards, together with other things not within the 
 statute, for a certain price, w^as held to be an indivisible 
 contract and unenforceable without evidence in writing;'' 
 and a parol contract for the letting of a house upon the 
 terms that the landlord was to send in furniture was 
 held to be indivisible, so that being within the statute 
 as to the house, no action could be brought for not 
 sending in the furniture.* But where incoming and 
 outgoing tenants contracted for the sale of the crops and 
 also of the dead stock at distinct prices, it was held that 
 the contract was divisible, and an action might be 
 brought for the price of the dead stock .^ 
 
 Contracts Partly in Writing. — Contracts partly in 
 writing and partly by parol, or with parol variations, 
 are, as regards rules of evidence, equivalent to parol 
 contracts, and the statute may be set up as a defence." 
 But where there is a contract in writing with a collateral 
 parol contract concerning the same matter, specific 
 performance of the written contract will be granted only 
 upon the terms of admitting and performing the parol 
 agreement.^ 
 
 Executed Contracts. — The statutes relate to the 
 mode of proving contracts within them, and not to the 
 
 ' Maddison v. Aldcrson 1883) 8 App. Gas. 488. 
 
 - Thomas v. Williams (1830) 10 B. & C. 664 
 
 • Harman v. Reeve (1856) 18 C. B. 587. 
 
 ■* Mcchelen v. Wallace (1837) 7 A. & E. 49; and see Vaughan v. 
 Hancock (1845) 3 C. B. 766 ; Hodgson v. Johnson (1858) E.B. & E. 685 ; 
 Piilbrook V. Lazc'cs (1876) 1 Q.B.D. 284. 
 
 '' Mayfield v. Wadsley (1824) 3 B. & C. 357 : Wood v. Benson (1831) 
 2 Cr. k J. 94. 
 
 6 See Clay v. Crofts (1851) 20 L.J. Ex. 361 ; Lockcttv. Niclclin (184S) 
 2 Ex. 93. 
 
 ■ Angell V. Duke (1S74) lOQ.B. 174 ; Martin v. Pxcroit (1852) 2 De 
 G. M, & G. 785 ; De Lassalle v, Guildford (1901) 2 K.B. 215.
 
 58 VENDORS AND PURCHASERS. 
 
 existence of those contracts.' A contract which is 
 unenforceable under the statutes may, however, be 
 looked at for any collateral purpose, and any acts done 
 under the contract may be referred to it for their legal 
 validity and efficacy." Thus, money paid by a pur- 
 chaser under a contract for the sale of land cannot be 
 recovered back so long as the vendor is able, ready, and 
 willing to perform his part;' an agent employed to buy 
 goods for his principal and to pay the price may recover 
 the monev so paid;^ a contract concerning an interest 
 in land mav be put in evidence as a licence to enter 
 upon the land in defence to an action for trespass.' 
 
 Doctrine of Part Performance.— Courts of Equity 
 have treated certain circumstances as taking a case out 
 of the operation of the Statute of Frauds, and have 
 granted relief by specific performance notwithstanding 
 the absence of a sufficient note or memorandum in 
 writing. 
 
 The Statute of P'rauds is a weapon of defence and not 
 of offence;' it may not be used as an instrument of 
 fraud,' and it cannot be relied upon to prevent proof of 
 fraud. *■ Thus, evidence has been admitted of a parol 
 collateral contract on the faith of which the written con- 
 tract was entered into, and on proof of such parol 
 contract the plaintiff seeking to enforce the written 
 contract has been refused specific performance, or has 
 been granted specific performance subject to the terms 
 of the collateral parol agreement being performed.^ 
 And where a breach of a collateral parol agreement 
 
 ' Lerouxv. Brown (1852) 12 C.B. 801 ; Rochefoucauld v. Boustcad 
 (1897) 1 Ch. 196. 
 
 ■■* Maihlison v. Alderson (1883) 8 App. Gas. 467. 
 
 « Thomas v. Brozcn (1876) 1 Q.B.D. 714; see Pulhrook v. Lauxs, 
 ibid. 284. 
 
 * Pozilc V Guuii (1838) 4 Bing. N.C. 445. 
 
 •^ Wood V. Matilcy (1839) 11 A. & E. 34 ; J. Jones & Co. v. Tankci-ville 
 (1909) 2 Ch. 440. 
 
 ° Hus$ey v. Home-Payne (1879) 4 App. Gas. 311. 
 
 • Mcstaer v. Gillespie (1805) 11 Ves. 621. 
 
 ** Rochefoucauld v. Bonstead (1897) 1 Gh. 196; Re Marlborough 
 (1894) 2 Gh. 133. 
 
 » Clarke v. Grant (1807) 14 Ves. 519.
 
 FORMATION OF CONTRACT. 59 
 
 would iia\t' amounted to fraud, specific performance of 
 its terms has been granted.' 
 
 Part performance of a parol agreement by one party 
 may debar the other from setting up tlie statute as a 
 defence, on the ground that such part performance 
 raises an ecjuity against the party who has allowed it 
 to take place on the faith of there being a contract, and 
 prevents that party from den}ing the existence of the 
 contract." The part performance must therefore be by 
 the party seeking to enforce the contract. And acts 
 of part performance can only be relied upon for this 
 purpose if they are such as to be clearly referable to the 
 contract set up by the plaintiff, i.e., such as would be 
 done with no other view or design than to perform the 
 agreement.' Acts which are ambiguous in this respect 
 will not suffice.' Thus, payment of a part, or even 
 apparently the whole, of the purchase-monev is not 
 sufficient part performance of a contract for the sale 
 of land, for the payment of monev is an equivocal act 
 not in itself indicative of a contract concerning land ;^ 
 payment of rent in advance under a verbal agreement 
 for a lease is not sufficient, the tenant not having taken 
 possession f acts which are merely introiluctor\- or 
 ancillary to the completion of a contract, e.^., deliver- 
 ing an abstract, viewing property, making valuations, 
 are not sufficient.^ 
 
 This doctrine of part performance is not confined to 
 contracts for the acquisition of an interest in land; a 
 similar rule applies under the words of Section 4 of the 
 Sale of Goods Act, 1893.' Probably it applies to all 
 
 ' Pcmbcr v. Mathers (1779) 1 Bro. C.C. 52 ; Pearson v. Pearson 
 
 (1884) 27 Ch. D. 145. 
 
 - See Maddison v. Alderson (1883) 8 App. Cas. 467 ; Stewart v. 
 Kennedy (1890) 15 App. Cas. 75 ; Hoare v. Kingsbury (1921) 2 Ch. 452. 
 
 •^ Giintcrv. Halscy (1739) Amb. 586; Maddison v. Aldcrsoti, supra. 
 
 ■* Gunterv. Halscy (1739) Amb. 586; and see Dickinson v Harrow 
 (1904) 2 Ch. 339. 
 
 ^ Maddison v. Alderson, supra ; Clinan v. Cooke (1802) 1 Sch. & 
 Lef. 40 ; Hughes v. Morris (1852) 2 De G. M. & G. 349. 
 
 ^ Thursby v. Ecclcs (1900) 70 L.J. Q.B. 91. 
 
 " Clark V. Wright (1737) 1 Atk. 12. 
 
 •^ Cf. Toinkinson v. Statght (1S56) 17 C.l'.. 697.
 
 60 VENDORS AND PURCHASERS. 
 
 cases in which the Court would entertain an action for 
 specific performance if the contract were in writing/ 
 
 The usual act of part performance to take the case 
 out of the statute is the delivery or taking of possession 
 under the contract. Possession is not sufificient if it 
 can be explained apart from the alleged contract, so that 
 where a tenant in possession sued for specific perform- 
 ance of an alleged agreement to grant him a new lease, 
 his possession was held referable to his pre-existing 
 character as tenant.^ But if possession is taken solely 
 under and after the contract, or if continuance of pre- 
 existing possession is referable unequivocally to the 
 contract,^ the possession is then an act of part perform- 
 ance sufficient to take the case out of the statute. The 
 case is all the stronger where the partv let into or 
 remaining in possession has expended money on 
 repairs or other improvements.* 
 
 ' See McManusv. Cooke (\887) 35 Ch. D. 681; Britain v. Rossiter 
 (1883) 11 Q.B.D. 123. 
 
 '' Wills V. Stradling (17Q7) 3 Ves. 378 ; Bnniian v Bolton (1842) 2 
 Dr. & War. 349. 
 
 •' Hoilson V. Hcuhnul (1896) 2 Ch. 428; Miller v. Sharp (1899) 1 
 Ch. 622; Isaacs v. Evans (1899) W.N. 261. 
 * Lester v. Foxcroft (1701) 2 Wh. & Tud. L.C. 464.
 
 CHAPTER V. 
 REALITY OF "^CONSENT. 
 
 Reality of Consent. — Reality of consent is, as we 
 have seen, essential to the validity of a contract. An 
 agreement, apparently complete and sufficient to create 
 a contract, may be affected by causes which, under 
 certain circumstances, negative such realitv of consent. 
 Such circumstances occur where the apparent consent 
 has been obtained by reason of the operation of causes 
 such as mistake, misrepresentation, fraud, duress, and 
 undue influence. 
 
 Section 1 — Mistake. 
 
 Nature of Mistake. — The Courts have ahvays re- 
 frained from attempting to give a complete or an exact 
 definition of mistake;' but, in general, it may be said 
 to arise from ignorance^ or forgetful ness' of a material 
 fact, or out of a belief in the existence of the subject- 
 matter of a contract where in fact it has ceased to exist,* 
 or of some fact which forms the basis of the transac- 
 tion which is not true.^ 
 
 Modes of Mistake. — Mistake as affecting agree- 
 ment may be distinguished as (a) mistake affecting 
 the act of agreement; and (6) mistake affecting the 
 expression of intention with regard to the particular 
 transaction ; and (c) mistake as to facts and circum- 
 stances forming the inducement to the agreement. 
 These cases may be further distinguished according as 
 
 • Barrow v. Isaacs (1891) 1 Q.B. 417; Hooil v. Mackinuon (1909) 
 1 Ch. 476. 
 
 2 Horc V. Becker (1842) 12 Sim. 465 ; Bell v. Gardiner (1842) 4 Man. 
 & G. 16. 
 
 ^ Kelly V. Solari (1841) 9 M. & \V 54 ; Baker v. Courage (1910) 
 
 1 K.B. 56; and see note 1 supra. 
 
 * Strickland v. Turner (1852) 7 Exch. 208. 
 
 ^ Cochrane v. Willis (1865) 1 Ch. App. 58 ; Scoff v. Coiilson (1903). 
 
 2 Ch. 249.
 
 0*2 VENDORS AND PURCHASERS. 
 
 the mistake is that of one party only, known or not 
 known to the other, and where the mistake is common 
 to both parties. Further distinctions may be drawn 
 between mistakes in matters of law and mistakes in 
 matters of fact; and mistakes of this latter class may 
 be subdivided according- as they are mistakes as to the 
 nature of the transaction, or mistakes as to the identity 
 of the other partv to the transaction, or mistakes as to 
 the subject-matter of the transaction.^ 
 
 Mistake of Law. — The distinction between mistakes 
 of fact and mistakes of law is, in some cases, difificult 
 to draw. As a general rule, no relief can be obtained 
 in respect of mistake of law^^ But this rule does not 
 apply to ignorance of a private right of property, 
 although the private right is the result of a rule of 
 law or depends upon rules of law applied to the con- 
 struction of legal instruments; for a private right is 
 generally to be considered as a matter of fact.^ Nor 
 does the rule apply to ignorance of a right which 
 depends upon questions of mixed law and fact ; a state- 
 ment of fact which involves a conclusion of law is still 
 a statement of fact and not of law.^ And it has been 
 suggested that a case might conceivably arise where a 
 mistake of law goes so completely to the root of the 
 matter as to prevent anv real agreement being formed, 
 in which circumstances the Court would hold it inequit- 
 able that the apparent agreement should stand. ^ 
 
 Mistake of Fact. — Mistake in a matter of fact may, 
 in general, be alleged in avoidance of the agreement; 
 but it is not sufficient to allege ignorance where means 
 of knowledge were open, and the ignorance was due 
 to negligence in taking advantage of such means of 
 
 ' See generally Leake on Contracts, p. 209, et scq. ; Halsburv's Laws 
 of England, Vol. 21 p. 3. 
 
 '^ Cooper v. Phibbs (1867) 2 H.L. 149; Stewart v. Kennedy (1890) 
 15 App. Cas. 108. 
 
 ^ Ibid: Reaiichamp v. Winn (1873) 6 H.L. 223; Daniell v. Sinclair 
 (1881) 6 App. Cas. 181. 
 
 * Eaglcsficld v. Londonderry (1876) 4 Ch. D. 693. 
 
 * See Cooper v. Phibbs, supra.; Clifton v. Cockburn (1834) 3 My. & 
 K. 76; Watson v. Marston (1853) 4 De G. M. & G. 230; Allcard v 
 Walker (1896) 2 Ch. 369.
 
 RKALITV OF C(^NSF.\T. H-3 
 
 knowledge; in such cases knowledge is imputed to the 
 party setting up the defence of mistake.' 
 
 Mistake in Act of Agrffment. — Though parol evi- 
 dence is not admissible to varv the terms of a written 
 agreement, it is admissible to prove or disprove the 
 apparent act of agreement. Thus, it is admissible to 
 prove that a person did not intend to sign as a party 
 to be bound by the agreement, but only as an attesting 
 witness;" or that a document was signed and handed 
 to an agent with instructions not to part with it except 
 on the fulfilment of a condition, so that the person sign- 
 ing it was not to be bound by his signature unless and 
 until the condition w^as fulfilled.^ 
 
 Mistake in Expression of Agreement. — Where the 
 parties have come to an agreement, and the agreement 
 has been reduced into waiting, the Court, as a matter 
 of construction, will correct an error or supply an 
 omission clearly appearing on the face of the docu- 
 ment;* and where the document does not trul\- express 
 the intention of the parties, on proper proof the docu- 
 ment will be rectified.^ In order that rectification may 
 be granted there must, as a general rule, be mutual 
 mistake^ and not merely unilateral mistake of expres- 
 sion;^ but, in certain cases of unilateral mistake, the 
 Court may put the other party to his election of accept- 
 ing rectification or submitting to rescission.* 
 
 ^ Bell V. Gardiner (1842) 4 Man. & G. 11 ; Re Metcalfe (1879) 13 Ch. 
 D. 236; Tamplinv.Jamcs {mo) 15 C\\.2\5; Broxinlic v. Campbell 
 (1880) 5 App. Cas. 925. 
 
 '^ Rex V. Longnor {\S3i) 4B. &Ad. 647; Wake v. Harrop (1861) 6 
 H. & N. 768. 
 
 ■^ Pattle V. Hornibrook (1876) 1 Ch. 25 ; Pym v. Campbell, 6E. & B. 
 370 ; Giidgcn v. Bessct, 6 E. & B. 986 ; Funtcss v. Meek. 27 L.J. Ex. 
 34 ; and see Chapter III., Sect. 3, ante, p. 40. 
 
 ^ Hcnkle v. Roy. Exch. Assce. (1749) 1 Ves. sen. 318 ; Mav v. Piatt 
 (1900) 1 Ch. 616 ; Mackenzie v. Coitlson (1869) 8 Eq. 375. 
 
 * White V. White (1872) 15 Eq. 247 : Beale v. Kyte (1907) 1 Ch. 564. 
 
 « Bcntley v. Mackay (1869) 31 Beav. 143. 
 
 ■^ See Stewart v. Kennedy (1890) 15 App. Cas. 108; Wilding v. 
 Sanderson (1897) 2 Ch. 534; Menzies v. Mcnzies (1893) 20 Rettie, 108. 
 
 *" Harris v. Pcpperell (1867) 5 Eq. 1 ; Paget v. Marshall (1884) 28 
 Ch. D. 255 ; May v. Piatt (1900) 1 Ch. 616.
 
 04 VENDORS AND PURCHASERS. 
 
 Mistake as to the Nature of the Transaction. — 
 Written documents which purport to express a true 
 consent are void if there is no real agreement in some 
 point which goes to the substance of the transaction/ 
 Thus, where the nature of a written document, and 
 not merely its legal effect, has been misrepresented to a 
 contracting party, and he has executed it, he may some- 
 times treat the document as a nullity." But a person 
 cannot deny the execution of a document merely upon 
 the ground that it is used for a dift'erent purpose than 
 he intended." 
 
 Mistake as to Identity of Other Party. — Mistake 
 of this kind can only arise where A contracts with B 
 believing him to be C. In such cases, if it is immaterial 
 to A whether he contracts with B or C, the mistake does 
 not. in the absence of fraud, affect the contract. But if 
 A was willing to enter into a contract with C only, and 
 not with B, the contract is void.* 
 
 Mistake by One Party known to the Other. — As a 
 general rule, where the terms of a contract are clear, the 
 question is not what the parties thought, but what they 
 said and did. And if A so conducts himself that B 
 reasonably believes that A was assenting to the terms 
 proposed by B, and B upon that belief enters into the 
 contract with A, A would be ecjually bound as if he had 
 intended to agree to B's terms. But A is not bound to 
 fulfil a promise in a sense in which B knew at the time 
 A did not intend it; and it is immaterial in what way 
 such knowledge is brought to B's mind, whether by A's 
 express words or his conduct, or previous dealings with 
 B, or other circumstances. If by any means B knows 
 that there was no real agreement between him and A, 
 he is not entitled to insist that the promise shall be ful- 
 
 ' Kennedy V. Panama, etc., Mail Coy., 2 Q.B. 580; Howatson v. 
 Webb (1907) 1 Ch. 537; (1908) 1 Ch. 1 ; Bagot v. Chapwan (1907) 2 Ch. 
 222, Carlisle, etc. Banking Co. v. Bragg (1911) 1 K.B. 489. 
 
 '■' Thoroughgood' s Case, 2 Rep. 9 ; Foster v. Mackinnon (1869) 4 
 C.P. 704 ; Leiius v. Clay (1897) 67 L.J. Q.B. 224. 
 
 ■' Houatson V. Webb, supra ; Hunter v. Walters (1871) 7 Ch. 75; 
 and see Stewart v. Kennedy (1890) 15 App. Cas. 108, 121, 122. 
 
 * See Cundy v. Lindsay (1878) 3 App. Cas. 459 ; Re Reed (1876) 3- 
 Ch. D. 123: Hardman v. Booth (1863) 1 H. & C. 803; Smith v. 
 Wheatcroft (1878) 9 Ch. D. 223 ; Gordon v. Street (1899) 2 Q.B. 641 ; 
 Archer v. Stone (1898) 78 L.T. 34 ; Nash v. Dix (1898) 78 L.T. 445.
 
 REALITY OF CONSENT. G5 
 
 fulhlled in a sense to which A's mind did not assent.' A 
 knowledge of the mistake, if A's error be not corrected, 
 may amount to fraud, and be a ground for setting aside 
 the contract altogether, unless rectification be consented 
 to.- 
 
 MiSTAKi: AS TO Subject-matti:r of Contract. — Mis- 
 take as to the subject-matter of the contract may relate 
 to : (a) its identityj (b) its existence; (c) its equality; (d) 
 its cjuantity or extent; (e) its price. 
 
 (a) Idkntitv. — Where the description of the property 
 to be sold, though clear in itself, is equally applicable to 
 two different subject-matters, there arises what is called a 
 latent ambiguity, because it is not apparent on the face 
 of the written description, and evidence is then ad- 
 missible to show wliich of the two subject-matters was 
 the one intended;' but unless the evidence is sufficiently 
 clear to establish that both parties had the same subject- 
 matter in mind, there is no contract.' A\"here the .sub- 
 ject-matter is identified with sufficient legal certainty, 
 but there is some uncertainty in the description, or some 
 addition to the description which is inaccurate, the in- 
 accuracy may be rejected according to the maxim 
 falsa demonstratio non nocet;' but this maxim only 
 applies to cases where the false demonstration is added 
 to that which was .suiificiently certain before, and, there- 
 fore, if the w^ords form an essential part of the 
 description of the subject-matter, they cannot be 
 rejected.'' 
 
 (b) Existence. — Where both parties are under a mis- 
 take as to a fact materially inducing the agreement, the 
 effect depends upon whether the agreement is to be 
 taken absolutely according to its terms, or whether it 
 
 1 Siuifh V. Hughes (1871) 6 Q.B. 597. 
 
 •- Paget V. Marshall (1885) 28 Ch. D. 255 ; May v. Piatt (1900) 1 Ch. 
 616: Webster v. Cecil (1861) 30 Beav. 62; Tamplin v. James (1880) 
 15 Ch. D. 221. 
 
 2 Smith V. Jeffreys (1846) 15 M. & W. 561 ; Hitchin v. Groom (184S) 
 5 C.B. 515. 
 
 ■• Hodges v.Horsf all (1829) 1 Russ. &M. 116; Raffles v. Wichelhaus 
 (1864) 2 H. & C. 906 ; Swaisland v. Dearsley (1861) 29 Beav. 430. 
 
 5 Cowen V. Truefitt (1899) 2 Ch. 309. 
 
 6 Magee v. Lavcll (1874) 9 C P. 107. 
 
 5
 
 66 VENDORS AND PURCHASERS. _^ 
 
 is to be taken as impliedly conditional upon the exist- 
 ence of the supposed state of facts. In the latter case, a 
 contract for the sale of a thing which both parties 
 believe to be in existence, but which has really ceased to 
 exist, is altogether void.' When, however, the contract 
 is in absolute terms and unconditional as to the real 
 state of facts, the contract is binding." 
 
 (c) Quality. — The general rule is- caveat emptor. In 
 the case of goods it " does not me'an in law or Latin 
 that the buyer must take chance, it means that he must 
 take care. It applies to the purchase of specific things, 
 e.g., to a horse or a picture upon which the buyer 
 can, and usually does, exercise his own judgment. It 
 applies also whenever the buyer voluntarily chooses 
 what he buys ; and whenever by usage or otherwise it 
 is a term of the contract, express or implied, that the 
 buyer shall not. relv upon the skill or judgment of the 
 seller.'" 
 
 Defects of Quality. — Defects of quality may be 
 either patent or latent. Patent defects are such as are 
 discoverable by inspection and ordinary vigilance on 
 the part of the purchaser; latent defects are such as 
 would not be revealed by any inquiry which a pur- 
 chaser is usually in a position to make before entering 
 into a contract for purchase. As regards patent de- 
 fects, the rule is caveat emptor; a purchaser should 
 make inspection and inquiry as to that which he is pro- 
 posing to buy.' If he omits this precaution, he buys 
 at his own risk, and cannot complain afterwards on dis- 
 covering defects of which he would have been aware if 
 he had taken ordinary steps to ascertain the physical 
 condition of the thing bought, and which are not incon- 
 sistent with the description by which the vendor con- 
 
 • Couturier v. Hastie (1856) 5 H.L.C. 673 : Strickland v. Turner 
 (1852) 7 Ex. 208; Cochrane v. Willis (1865) 1 Ch. 58; Cooperv. Phibbs 
 (1869) 2 H.L. 149; Jones v. Clifford 0876) 3 Ch. D. 779. 
 
 ■^ Barr v. Gibson (1838) 3 M. & W. 390; Kelly v. Rogers (1892) 1 
 OB. 910; Ridgxt-ay v. Sneyd (1854) Kay 627; Baxendale v. Scale 
 (1855) 19 Beav. 601. 
 
 •' See Wallis v. Russell (1902) 2 I.R. 585, per Fitzgibbon, L.]., at p. 
 615; and see Sale of Goods Act, 1893, sect. 14; Part II., Chapter I. 
 post p. 137 et scq. 
 
 * Edwards-Wood v. Majorihanks (1860) 7 H.L. Cas. 806; Cook v. 
 Waugh (1860) 2 Giff. 201.
 
 REALITY OF CONSENT. 67 
 
 tracted to sell.' A warrant of (jiiality is not an t-ssential 
 element of a sale; it is a collaterar rendition attached 
 to or omitted from the contract at the pleasure of the 
 parties.' 
 
 Rut any active concealment by the vendor of defects 
 which would otherwise be i:)atent. or anv conduct 
 calculated to mi.slead a purchaser or lull his suspicions 
 with respect to a defect known to the vendor, is treated 
 as fraudulent, and renders the contract voidable bv liie 
 purchaser,'' and the consequences are the .same whether 
 the vendor misrepresents the condition of the property, 
 or an agent employed by him to effect the sale does so, 
 even innocently.' 
 
 Thus a mistake on the part of one partv onlv, not 
 cau.sed or assi.sted by the act of the other party as to the 
 cjuality of the subject-matter, does not. as a rule, 
 invalidate the contract, even if the other partv knows 
 of the mistake, and that but for the mistake the contract 
 would not have been entered into.^ But where the pur- 
 chaser mistakenly believes the vendor to be in effect 
 ijiving a warranty as to quality, and enters into the con- 
 tract on this footing, the ^■endor, if he is aware of the 
 mistake, must correct it, and, if he fails to do so, the 
 contract is voidable at the option of the purchaser; but 
 if the vendor is not aware of the mistake, the purchaser 
 is bound." 
 
 The rule caveat emptor applies also to latent defects 
 of quality, and there is no implied wruTanty that land 
 agreed to be sold is of any particular (juality or suitable 
 for any particular purpose.' Where, however, the 
 latent defects are of such a nature that, if known to the 
 
 ' Bowles V. Round (1800) 5 Ves. 508; Hnyn'ood v. Cope {\ 858) 25 
 Beav. 140. 
 
 - Scott V. Littledale (185S) 8 E. & B. 815. 
 
 ■' Baglchole v. Walters (1811) 3 Camp. 154: Horsfull v. Tlionurs 
 i\852) 1 H. & C. 90; Denny v. Hancock (1870) 6 Cli. App. 1 ; Re 
 Arnold (1880) 14 Ch. D. 270. 
 
 ' Mullens v. Miller (1882) 22 Ch. D. 104 ; Wanton v. Cappard (1899) 
 1 Ch. 92. 
 
 ■'- Smith V. Hughes (1871) 6 Q.B. 597 ; Re Hare and OMore's Con- 
 tract (1901) 1 Ch. 93. 
 
 •'■ Ibid. 
 
 ' Spoor V. Green (1874) 9 Exch. 99; and as to g,oocls, see Sale of 
 Goods .\ct, sect. 14 ; Part II., Chapter 1., post, p. 137 et seq.
 
 68 VENDORS A ND PURCHASERS. 
 
 purchaser, they would to the vendor's knowledge pre- 
 vent him from entering into the contract, the vendor is, 
 it seems, bound to disclose them, and if he fails to do 
 so he cannot obtain specific performance of the contract,' 
 notwithstanding conditions of sale expressly providing 
 that errors and omissions shall not affect the validity of 
 the sale, or expresslv requiring facts to be assumed 
 which the vendor knows to be false." 
 
 (d) Quantity or Extent. — A material error as to the 
 quantity or extent of the property contracted for mav 
 make an agreement void if the mistake is mutual f' but 
 words qualifying a statement of the acreage, in the case 
 of land, as "by estimation," " more or less," or the 
 like, or as to number or weight in the case of goods, as 
 "about," " more or less," or the like, imposes on the 
 purchaser the risk of a slight deviation from the quantity 
 named, and precludes him to that extent from objecting 
 that he was mistaken in the quantity in the case of land, 
 or that the proper quantitv has not been delivered in the 
 case of goods/ 
 
 (e) Price. — Mistake as to price can rarely occur where 
 the price is expressly stated, and where it is expressly 
 stated a manifest error on the face of the instrument 
 will be rectified by the Court. Mistakes may occur 
 where various prices have been the subject of negotia- 
 tion, and the parties are only in apparent agreement, 
 whilst, in fact, entertaining different views. ^ Mistakes 
 may also arise owing to latent ambiguity of some term 
 on which the price is to depend.* In the absence of 
 evidence that one party to a contract is attempting to 
 take advantage of a manifest mistake, the other partv 
 
 ' Cook V. Watigh (1860) 2 Giff. 201 ; Lucas v. Jawes (1849) 7 Hare 
 410; Carlish v. Salt (1906) 1 Ch. 335 ; Shepherd v. Croft (1911) 1 Ch. 
 521 ; and see Sale of Goods Act, 1893, sects. 14. 61 (2). 
 
 "^Nottingham Brick Coy. v. Butler (1886) 15 Q.B.D. 778; Re 
 Banister (1878) 12 Ch. D. 131 ; Blaiberg v. Keeves (190G) 2 Ch. 175. 
 
 " Leslie v. Thompson (1851) 9 Hare 268; Stapylton v. Scott (1807) 
 13 Ves. 425 ; Jacobs v. Revell (1900) 2 Ch. 858. 
 
 * Winch V. Winchester (1812) 1 V. & B. 375; Portman v. Mill (1826) 
 2 Kuss. 570; and see Part II. Chapter III. post. p. 164; Part III., 
 Chapter l.post pp. 231-234. 
 
 '' Wilson V. Breadalbane (1859) 21 Dunlop 957 ; West v. De Wezele 
 (1865) 4 F & F. 596. 
 
 « Stuart V. Kennedy (1885) 23 Sc. L.R. 149.
 
 Kl:\l.l^^• of consiint. 00 
 
 cannoi a\"()itl ihv contract on the ineir ijfroiind ot inistaki" 
 as to tlie price stated therein ;' though in some ciises 
 specific performance may be refused, for example, where 
 a vendor inserts a wron^ figure in a letter written 1)\- 
 him and containing an offer to sell, and on becoming 
 aware of his error immediately gives notice of it." In 
 the case of a sale by public auction, a mistake as to price 
 is not a ground for relief, since bidding can only be 
 opened on the ground of fraud.'' 
 
 SiXTiON 2 — Misri:pri;sfxtati()\.' 
 
 DEFINITION. — A misrepresentation is a misstatement 
 of fact not know^n to be false, or a non-disclosure of fact 
 not intended to deceive. It is thus distinguished (a) 
 from mistake, which implies misapprehension or mis- 
 conception of some fact b\- both parties, or bv one onlv, 
 and which has not been induced bv an\- words or acts of 
 either party ; (b) from fraud, where knowledge of the 
 falsehood or a reckless disregard of whether the repre- 
 sentation be true or false is proved. "^ 
 
 Rfpresfntations in Gkxfral. — A repre.sentation is a 
 statement or assertion made by one party to the other, 
 before or at the time of the contract, of some matter or 
 circumstance relating to it. Representations are of two 
 kinds, those that are external to the contract, and those 
 that form part of it.*^ Even though contained in a 
 written instrument, a representation is not an integral 
 part of the contract ; and, consequentl)', the contract is 
 not broken though the representation proves to be un- 
 true; nor (except in certain cases) is such untruth any 
 cause of action, nor has it any efficacy whatever unless 
 the representation was made fraudulently, either by 
 reason of its being made with a knowledge of its un- 
 truth, or by reason of its being made dishonestly, with 
 
 ' lsliiii>ton Union v. Brcntnall and Chhnid (1907) 71 J. I'. 407. 
 
 •-' Webster V. Cecil (ISCl) 30 Heav. 62 ; see Wood v. Scartli (1S55) 2 
 K. & J. 33. 
 
 ' Griffiths v. Jones (1873) 15 Eq. 279. 
 
 ' See generally, Kerr on Fraud and Mistake. 
 
 ■'' See Section 3, infra, pp. 75-78, ct seq. 
 
 " See Belin v. Biirness (1863) 3 B. & S. 751, 753 ; Brit. Kqitit. Asscc, 
 Coy.v. Baily (1906) A.C. 35.
 
 70 VENDORS AND PURCHASERS. 
 
 a reckless ignorance whether it was true or untrue. The 
 insertion of a representation in a written instrument of 
 contract cannot alter its nature. The question, however, 
 may arise whether a statement in a written instrument 
 is a mere representation, or whether it is a substantive 
 part of the contract. This is a question of construc- 
 tion to be determined by the Court. If the Court de- 
 cides that such £1 statement by one party was intended 
 to be a substantive part of the contract and' not a mere 
 representation, the question may be raised whether this 
 part of the contract is a condition precedent, or only an 
 independent agreement. Breach of the latter will not 
 justifv a repudiation of the contract, but will only be a 
 cause of action for compensation in damages. The 
 true doctrine, established by principle as well as 
 authority, appears to be, generally speaking, that if a 
 st£itement in a contract descriptive of the subject-matter 
 thereof was intended to be a substantive part of the con- 
 tract, it is to be regarded as a condition, on the failure 
 or non-performance of which the other party may, if he 
 is so minded, repudiate the contract in toto, and so be 
 relieved from performing his part of it, provided it has 
 not been partially executed in his favour. If he haS' 
 received the whole or any part of the consideration for 
 the promise on his part, the statement becomes a 
 ivar runty, i.e., a stipulation by way of agreement, for 
 the breach of which a compensation must be sought in 
 damages.' 
 
 Effect of Misrhprkskntation. — At common law, a 
 representation forming part of the contract, where it was 
 a condition, was availalDle as a defence, and justified 
 repudiation of the contract on non-performance of the 
 condition ; where it was a warranty, it was a ground for 
 an action in damages only. Innocent misrepresenta- 
 tion external to the contract, however, did not of itself 
 give rise, as a general rule, to any right or liability, 
 unle.ss it misled the other party into error as to an essen- 
 tial matter, in which ca.se it invalidated his as.sent." 
 The rule in equity was that " a contract can be set aside 
 on proof that one party induced the other to enter into 
 
 ' See lichu v. Biintcss (1863) 3 B. & S. 751 /)er Williams, J, at p. 
 753 ; and see Part II,. Chapter I., post p. 131 ef seq. 
 
 * See Kctmcily v The Paiuniia Mail Coy. (1867) 2 Q.B 580.
 
 Ki:\I.I I V OF CONSKNT. t I 
 
 ii by misrcprcsent.iiions ol iiKilL'iial tacts.'" " It was 
 nut necessary to prove tliat the party obtaining it 
 knew at tlie time when the representation was made that 
 it was false." " l^ven assuming that moral fraud must 
 be shown in order to .set aside a contract, \ou have it 
 where a man, having obtained a beneficial contract by a 
 statenieni which he now knows to be false, insists upon 
 keeping that contract. To do so is a moral delin- 
 i(uency : no man ought to seek to take advantage of his 
 own fal.se statements."" By virtue of the Judicature 
 Acis,'' equitable principles with regard lo misrepresen- 
 tation are now, if they conflic t witli common law, to be 
 applied in all Courts. Thus, innocent misrepresenta- 
 tion, if it furnishes a material inducement, is ground for 
 resisting .specihc performance of the contract or for 
 asking to have it set aside. 
 
 ]\IiSRi:i'RESi:NTATic)N MusT KK Matickial. — In order 
 that a misrepresentation may support an action, it must 
 be the assertion of a fact on which the person entering 
 into the transaction relied, and in the absence of which it 
 is reasonable lo infer thai he would not ha\-e entered into 
 it £it all, Ol" at least not on the .same terms.' To be 
 material it must be one nece.s.sarily influencing and in- 
 ducing the transaction, and affecting and going to its 
 very essence and substance. Misrepresentations which 
 are of such a nature as, if true, to add substantially to 
 the value of property," or are calculated to increase sub- 
 stantiallv its apparent value," are material. 
 
 It is not. however, necessar\- that the representation 
 should have been the sole cause of the transiiction. It 
 is enough that it mav have constituted a material induce- 
 ment. If anv one of several .statements, all in their 
 
 ' Lagunas Nitrate Coy. v. Laginuis Syiulicitc (1899) 2 Ch. 392, 423. 
 - Redgrave v. Hiird (18S1) 20 Ch. D. 1, 12-13 : Ncithigging v. Adam 
 (1886) 34 Ch. I). 593 : Browulic v. Campbell (ISSO) 5 AC. 950. 
 
 " 36 & 37 Vict. c. 66, sect. 24. 
 
 ' Smith V. Chadicick (1884) 9 App. Cas. 187; Angus v. Clin'ord 
 (1891) 2 Ch. 449 ; Flight v. Booth (1S34) 1 P-ing. N.C. 370. 
 
 ■■ Torrance v. Bolton (1873) 8 Ch. 118 ; cf. Blaiherg v. Keeves (1906) 
 
 2 Ch. 175. 
 
 •^ Small V. Atticood (1832) You. 461 : Dimmoel; v. Uallett (1866) 2 
 Ch. 27; AV;;^ v. Freehold Land Cov. (1867) 4 I-:q 588; Lindsav 
 Petroleum Cov v. Hiird (1874) 5 P.C. 221.
 
 VENDORS AND PURCHASERS. 
 
 nature more or less capable of leading the party to 
 whom they are addressed to adopt a particular line of 
 conduct, be untrue, the whole transaction is considered 
 as having been fraudulently obtained, for it is im- 
 possible to say that the untrue statement may not have 
 been precisely that which turned the scale in the mind 
 of the party to whom it was addressed.' If the state- 
 ment would tend to induce him to enter into the contract, 
 or would be part of the inducement, the inference is that 
 he acted on the inducement, unless he knew the facts 
 or avowedly did not rel}' on the statement.' The test 
 of material inducement is not whether the plaintiff's 
 action would, but whether it might have been different, 
 if the misrepresentation had not been made. The 
 materiality of a misrepresentation depends on the cir- 
 cumstances of the case. 
 
 Reliance upon Misrepresentation. — A misrepre- 
 sentation, to be of any avail whatever, must enure to the 
 making- of the contract in question.'' If a man to whom 
 a representation has been made knows at the time, or 
 discovers before entering into a transaction, that the 
 representation is false, or resorts to other means of 
 knowledge open to him, and chooses to judge for him- 
 self in the matter, he cannot avail himself of the fact 
 that there has been misrepresentation, or say that he has 
 acted on the faith of the representation.* So that proof 
 that the party complaining was well aware and 
 cognisant of the real facts of the case, if such proof is 
 clear and conclusive, is an effectual defence.^ But 
 constructive notice of the actual facts is not sufficient for 
 that purpose. If a definite or particular statement be 
 made as to the contents of property, and the statement 
 be untrue, it is not enough that the party to whom the 
 representation was made may have been acquainted 
 with the property, or that he might have known the 
 
 • Smith V. Kay, 7 H.L.C. 750. 
 
 ■^ Arnison v. Smith (1889) 41 Ch. D. 369. 
 •' Irvine V. Kirkjyatrick, 7 Bell, Sc. Ap. 186. 
 
 * Smith V. Chadwick (1884) 9 App. Cas. 187; Aniison v. Smitli 
 (1889) 41 Ch. D. 369 ; Attwood v. Small (1832) You. 4C1. 
 
 '' Eaglesficld v. Londonderry (1875) 4 Ch. D. 702.
 
 KI-AMTY OF CONSKNT, 
 
 truth by proper enquiry.' Equal means of knowledge 
 is immaterial, where there is an express representation, 
 for the plaintiff is tiiereby put ofT his guard; and a 
 vendor of property cannot complain that the purchaser 
 has taken the value of the property to be such as he 
 represented it to be.'' 
 
 Statements of Opinion, i:tc. — A misrepresentation, 
 to be material, sliould be in respect of an ascertainable 
 fact, as distinguished from a mere matter of opinion." 
 But a statement of opinion may, like a statement of 
 intention, be a statement of fact. A representation 
 which merely amounts to a statement of opinion, judg- 
 ment, probability, or expectation, or is vague and 
 indefinite in its nature and terms, or is merely a loose, 
 conjectural, or exaggerated statement, goes for nothing, 
 thougii it may not be true, for a man is not justified in 
 placing reliance upon it." Mere general a.ssertions of 
 a vendor of property as to its value or the price whicii 
 he has been offered for it, or in regard to its condition, 
 qualities, and characteristics, are assumed to be so com- 
 monly made by persons having property for sale that a 
 purchaser cannot safely place confidence in them; such 
 assertions are merely " dealers' talk," and a man who 
 relies on them does so at his peril, and must take the 
 consequences. •'■ But a false statement by the vendor of 
 the price that he gave for the property would be a mis- 
 representation of a fact,* as would a false statement of 
 the rent at which the propertv had been let.^ 
 
 ' Jones V. Rinimcr (1880) 14 Ch. D. 590; Redgrave v. Hurd (1881) 
 20 Ch. D. 21; Abcraiuan Iron Works v. Wiclccns (1868) 4 Ch. 101 : 
 Hill V. Buckley 17 Ves. 394. 
 
 2 Redgrave v. Hiinl (1881) 20 Ch. D. 21 ; Dohcll v. Sfcvcus. 5 
 B. & C. 623 ; Perfect v. Lane, 3 De G. P. & J. 369. 
 
 * Jennings v. Broiii^hton, 5 De G, M. & G. 126 ; Bellairs v. Tucker, 
 13 Q.B. D. 562. 
 
 '' Haycraft v. Creasy, 2 East, 92. 
 
 " Ingram v. Thorf>, 7 Hare, 24 ; Hume v. Pocock (1866) 1 Ch. 385 : 
 Trower v. Nexvcoine, 3 Mar. 704 ; Colbv v. Gadsden, 34 Beav. 416 ; 
 Stephens v. Venables. 31 Beav. 124 ; Scott v. Hanson (1826) 1 Sim. 13 : 
 but see Smitli v. Land Corpn. (1882) 28 Ch. D. 7; De Lassallev. 
 Guildford (1901) 2 K.B. 215. 
 
 6 Kent V. Freehold Coy. (1867) 4 Eq. 588 ; Lindsav Petrol^Cow v. 
 Hurd (1874) 5 P.C. 221 : Mullens v. Miller (1882) 22 Ch. D. 194. 
 
 ' Dimmock v. Hallett (1866) 2 Ch. 21.
 
 74 VENDORS AND PURCHASERS. 
 
 Misrepresentation' of Intention. — " It is always 
 necessiiry to distinguish, when an alleged ground of 
 false representation is set up, between a representation 
 of an existing fact which is untrue, and a promise to do 
 something in future, and to consider what the bargain 
 is.'" A representation of an intention as to some future 
 act which is not performed, though it ma}' have induced 
 the agreement, is not, in general, a sufficient ground for 
 avoiding it. But a representation may be made of an 
 intention of a party at the time of contracting as of an 
 existing matter of fact, and as a material inducement to 
 the other party to make the contract ; and if such repre- 
 sentation is false, it mav be sufficient ground for avoid- 
 ing the contract.' Thus, where a vendor of property 
 induces a sale b}- representation of his intention to make 
 improvements, such as roads and buildings, affecting 
 the propertv and its value,* and produces plans show- 
 ing the improvements contemplated,* the Court will not 
 give him specific performance unless he makes good 
 his representation. 
 
 AX'OI DANCE OF CONTRACT ON GrOUND OF MISREPRE- 
 SENTATION. — A party who has been induced by the mis- 
 representation of the other to enter into a contract may, 
 imder the conditions stated, on discovering the truth, 
 elect whether to affirm or avoid the contract by express 
 words, or by some unequivocal act, under circumstances 
 which render such words or acts binding.^ He ma}' 
 also bring an action claiming to have the contract 
 rescinded and restitution ; or if the other party brings 
 an action for specific performance, he may set up such 
 misrepresentation as a defence in avoidance of the con- 
 tract, at the same time proving some act of avoidance 
 in support of it, as the return of goods sold, or such 
 other une(juivocal act as the case may require.'^ If, 
 
 ' Ex piirfc Huncll (1876) 1 Cli. D. 552 per ]\Iellish, L.J. 
 
 '-' E,l)iinf<ton v. Fitzmaiiricc (1885) 29 Ch. D. 483 ^c;- Bowen, L.J. 
 
 ■' Beaumont v. Dukes (1822) Jac. 422 ; Myers v. Wafsoii (1851) 1 Sim. 
 N.S. 523 ; Laiitarc v. Dixon (1873) 6 H.L. 414. 
 
 ' Randall v. Hall (1851) 4 De C. & S. 343 ; Re Cliifferiel (1888) 40 
 Ch. D. 45 
 
 ^' Stewnson v. Neunham (1853) 13 C.B. 285: Oalces v. Turquand 
 (1867) 2 H.L. 325; Clough v. /.. &N.\V.Ry. (1871) 7 Ex. 26. 
 
 Reese River Coy. v. Smith (1870) 4 H.L. 64; Clough v. L. & 
 N.W.Ry, supra : Daues v. Harness (1875) 10 C.P. 166.
 
 RIAI.nV OK CONSKNI. (•> 
 
 upon discoverinj;- the misiepreseniatitm, he ariirnis the 
 contract by some unequivocal act, he cannot afterwards 
 revoke his election; and delav in determining his elec- 
 tion may operate presumptivelv in aFrirmance, if it goes 
 beyond what is reasonable in tlie circumstances.' 
 
 Rkstiti Tiox. — Avoidance of the contract involves a 
 restitution of the parties to their original rights and pro- 
 perty ; unless this can be done /« toio the contract cannot 
 be avoided at all, but the party coniplaining of the non- 
 performance, or of misrepresentation, mav resort to an 
 action for damages.' ^\"here the contract has been 
 completel}' executed there cannot be rescission for 
 innocent misrepresentation.' The mere possession of 
 property taken under a contract of sale, however, does 
 not prevent the Court ordering a rescission of the sale, 
 and a reconveyance of the propert^' upf)n equitable 
 terms, if the situation of tiie parties has not been altered 
 in any substantial wa\'.' 
 
 Section 3 — Frai n. 
 
 DivFixmox. — Fraud is a false representation of fact, 
 made with a knowledge of its falsehood, or recklessly, 
 without belief in its truth, with the intention that it 
 .should be acted upon by the complaining party, and 
 actuallv inducing him to act upon it.'' What has been 
 said generalh' as to inducement, intention, representa- 
 tion, etc., generallv in relation to misrepresentation, 
 applies to fraud, and need not be repeated here. 
 
 I-Iffect of I-'rai'I). — b^-aud by itself renders all con- 
 tracts voidable ab initio, both at law and in equity; and 
 where the person deceived has suffered damage, he may 
 bring an action for deceit, whereas in the case of inno- 
 cent misrepresentation, this, is not po.ssible. " Fraud 
 
 1 Cloiigh V. /.. & N.W.Rly.. supra ; Vificrs v Pike (1842) 8 CI. & F. 
 562 ; Erlanger v. Ncxc Soiiihnro Phosp'iuttc Coy. (1878) 3 App. Cas. 
 1218. 
 
 - Chvnoux'th's Case {\?,m) 15 Ch. I). 20: Sliefticlil Nickel Coy. \. 
 L';ru'/u (1877) 2 Q.B.D. 214. 
 
 •' Seddon v. North Eastern Salt Coy (1903) 1 Ch. 326; Hindlev 
 Hroxeit, 98 L.T. 45. 
 
 ' Lindsay Petroleum Coy. v. iltird (1S74) 5 I'.C. 221 ; Ayle.\ford v. 
 Morris (1873) 8 Ch. 484. 
 
 •' See Anson : " Law of Contract," p. 187.
 
 76 VENDORS AXD PURCHASERS. 
 
 gives a cause of action if it leads to any sort of damage ; 
 it avoids contracts only where it is the ground of the 
 contract, and where, unless it had been employed, the 
 contract would never have been made.'" It must be 
 shown that the representation was fraudulent, that it 
 was made to the party complaining, either directly or 
 indirectlv, with the intention that he should act upon it ; 
 and that the party complaining did so act on the faith 
 of the misrepresentation, and suffered damage in con- 
 sequence.' It is immaterial that the person defrauded 
 had a full opportunitv of discovering the fraud, or that 
 the truth was known to his agent. ^ 
 
 Rescission of Contract.- — A contract induced, by 
 fraud is voidable at the option of the party defrauded. 
 He may, therefore, affirm the contract, and sue for such 
 damages as he sustains from the misrepresentation; or 
 he may, where the representation creates an estoppel, 
 affirm the contract, and insist on the representation 
 being made good where this is possible ; or he may 
 avoid the contract, either by taking active steps to get 
 it cancelled, or by resisting a suit for specific perform- 
 ance, or an action for damages brought in respect of it. 
 Restitution of the parties to their original rights and 
 property is a condition of rescission ; and this right may 
 be lost by delay, or by waiver of the right and affirmance 
 of the contract, or by taking a benefit under the contract 
 after full knowledge of the fraud ; or where third parties 
 have inten-ened and acquired bond fide, and for value, 
 rights in the property obtained bv the fraud.' 
 
 Xon-Disclosure of Material Facts. — Non-disclo- 
 sure of a material fact ma}- sometimes be equivalent to 
 active misrepresentation, for such non-disclosure may 
 make that which is stated absolutely false^ ; or the fact 
 not di.sclosed may be such that it is impliedlv repre- 
 
 ' Siiiith V. Kay (1859) 7 H.L.C.^t'i- Lord Wensleydale at p. 775. 
 
 •^ Andrews v. Mockford (1896) 1 Q.B. 372; Peck v. Giinicv (1S73) 6 
 H.L. 377 ; Maclcay v. Taif (1906) AC. 24. 
 
 ■' Rcdfiravc v. liiini (1881) 20 Ch. D. 1 ; WcHs v. Siiiif/i (19141 3 
 K.B. 722. 
 
 * See, generally, cases cited under Misirpirscntatioit. ante, pp. 74, 75. 
 •■■ Peck V. Gitrticy (1873) G H.L. 403 per Lord Cairns ; Swith y. Clurd- 
 u-ick (1882) 20 Cb. D. 58 per Jessel, M.R.
 
 RKALirV OF CONSENT 
 
 seined not to exist.' And when a party makes a state- 
 ment which he afterwards finds out to be untrue, it is a 
 fraudulent concealment for him to maintain silence and 
 thereby allow, or still more induce, the other party to 
 go on with the transaction in the belief that the state- 
 ment is true." 
 
 Mere non-disclosure, apart from circumstances im- 
 porting a duty of informing- the other party or render- 
 ing the fact material for him to know, is not sufficient 
 ground for avoiding a contract. But the non-disclosure 
 by the vendor of a material defect known to him in the 
 title or the subject of sale, or of any other material fact, 
 in the case of real property, will, in general, entitle 
 the purchaser to avoid the sale; notwithstanding condi- 
 tions of sale expressly providing that errors and omis- 
 sions shall not affect the validity of the sale ; or expresslv 
 recjuiring facts to be assumed which the vendor knows 
 to be false." 
 
 XoN-DiscLOSURi-: BY PiRCHASEi?. — A purchaser is not 
 bound to give the vendor information of facts which mav 
 influence his own conduct or judgment when bargaining 
 for his own interest, unless he undertakes or professes 
 to communicate them.' But where a purchaser, while 
 communicating facts affecting the value, misrepresents 
 or conceals facts of which he knows the vendor to be in 
 ignorance, the transaction may be set aside, or specific 
 performance refused.* 
 
 Contracts Uberrunae Fidei. — There are certain con- 
 tracts which, as regards disclosure by one party to the 
 other of facts within his knowledge, stand in a special 
 position. These contracts are such that from the nature 
 of the case one party has coinmand of means of know- 
 ledge impossible to the other, so that it becomes a inatter 
 of good faith that the informed party should communi- 
 
 1 Coaks V. Boswell (1886) 11 A.C. 236 per Lord Selborne. 
 
 - Broxvnlie v. Campbell (1880) 5 A.C. 950 per Lord Blackburn ; Red- 
 grave V. Hurd (1881) 20 Ch. D. 12-13 ^t-r Jessel, M.R. 
 
 •' Nottingham Brick Coy. v. Butler (1886) 16 Q.B. D. 778 ; Carlish v. 
 Salt (1906) 1 Ch. 335 ; Re Banister (1879) 12 Ch. D. 131 ; Blaiberg v. 
 h'ceves (1906) 2 Ch. 175. 
 
 ■ Coaks V. Bosicell (1886) 11 App. Cas. 232. 
 
 '■ Turner V. Harvey (1821) Jac. 169; Haygarth v. Wcarimi (1871) 12 
 Eq. 320 ; Phillips v. Horn/ray (1871) 6 Ch. 770.
 
 78 VEXDORS AND PURCHASERS. 
 
 cate his knowledge to the other. Such contracts are 
 known as contracts uberrimae fldei. They comprise 
 contracts of insurance, contracts for the sale of land/ 
 contracts for famil}- settlements and arrangements, con- 
 tracts for the allotment of shares in a company. 
 
 Puffers at Auctions. — Formerly, a sale by auction 
 ^\vas invalid at common law if a puffer was employed to 
 bid on behalf of the vendor, unless the right so to bid 
 iiad been expressly reserved. The rule in equity ap- 
 pears to iiave been that the employment of one puffer 
 might be justified to prevent a sale at an undervalue.^ 
 Now, however, by the Sale of Land by Auction Act, 
 1867,'^ the employment of a puffer will invalidate the sale, 
 unless the right to do so has been resei-ved in the parti- 
 culars or conditions of sale; but if the right is reserved, 
 the seller, or anv one person on his behalf, may lawfully 
 bid. But tlie right to bid must be expressly reserved — 
 it is not enough to state that the sale is subject to a 
 reserv''e price.* Similar provisions as to the sale of goods 
 by auction are contained in Section 58 of the Sale of 
 Goods Act, 1898. ' Any sale contravening this Section 
 niay be treated as fraudulent by the buyer. Similarly any 
 conduct of the successful bidder intended to " damp 
 the sale may be constructively fraudulent, so as to entitle 
 the vendor to refuse completion.*^ 
 
 Section 4 — Duress. 
 
 13efimtion. — Duress, as recognised in law, implies 
 actual violence to the person, or threats thereof. An 
 agreement apparently complete and sufificient to create a 
 contract may be vitiated by such duress, as the party 
 under duress is induced to consent onl}' by fear imposed 
 by the violence or threats of the other party. The fear 
 must (-()nc(M-n the personal safetv of the man, not his 
 
 ' See Part III., Chapter I., post, pp. 231-234. 
 
 '•^ Thonictt V. Haines (1846) 15 M. & W. 367 ; Green v. Biiversfock 
 (1863) 14 C.B. N.S. 204; Mortimer v. Bell (1865) 1 Ch. 10. 
 
 " 30 & 31 Vict. c. 48, ss. 4, 5 and 6 ; -see Part III., Chapter I., p'ost, 
 p. 218. 
 
 * Gilliat V. Gilliiit (1869) 9 Rq. 60. 
 
 ■'■ See Part II., Chapter I., post, p. 141 , c'^ seq. 
 
 '■' Fuller V. Abrahams (1821) 6 Moo. P.C. 316; Raxclings v. General 
 Trading Coy. (1921) 1 K.B. 635.
 
 ri:alitv of consf.nt. 79 
 
 houses or goods,' because he may recover these or 
 damages to their value; and the fear must be estimated 
 with regard to the age, sex, and condition of the person 
 threatened, so far as known to the party using the 
 violence or threats." 
 
 Gknhral Rule. — An agreement induced by duress is 
 not absolutely void, but voidable only at the option of 
 the party intimidated. If, after the duress is removed, 
 he voluntarily acts upon the agreement, he thereby 
 confirms it, and is afterwards precluded from avoiding 
 it.'' Prima facie, all contracts are valid, and the partx 
 seeking to avoid an agreement on the ground of duress 
 must prove the duress affirmatively, unless the parties 
 stand in a fiduciary position, in which case the onu.s' 
 is cast upon the defendant of jjroving there was no 
 duress.'' 
 
 The duress must be the act of the other contracting 
 party himself, or imposed with his know-ledge, and taken 
 advantage of by him, for the purpose of obtaining the 
 agreement." And, as a rule, the duress must be im- 
 posed on the party seeking to avoid the agreement, and 
 not on a third person, unless such third person is the 
 party's parent, or wife, or child." 
 
 Section 5 — Undue Influence. 
 
 General Rule. — Agreements between persons in 
 certain relative positions are treated in equity as pre- 
 sumptively made under an undue influence of one party 
 upon the w'ill of the other ; and when the relative posi- 
 tion of the parties is such as prima facie to raise this 
 presumption the transaction cannot stand, unless the 
 person claiming the benefit of it is able to repel the pre- 
 sumption by contrary evidence, proving it to have been 
 in point of fact fair, just and: reasonable.^ 
 
 1 Co. Litt. 253b; Poiccll v. Hylcuid (1851) 6 Ex. 67; Latter v. 
 Braddell (1881) 50 L.J. C.P. 448 ; Skcatc v. Bcale (1840) 1 1 A. & E. 983. 
 
 "^ Scott V. Sebright (1886) 12 P.D. 21 ; see Cooper v. Cnine (1891) 1'. 
 369. 
 
 3 Ormcs V. Bcadel (1860) 2 De G.F. & J. 533. 
 
 " Whclpdcxlc's Case (1605) 5 Co. 119a. '' 1 Kolle Abr. 688. 
 
 « Ibid. 687 ; see Williams v. Bayley (1866) 1 H.L. 200. 
 
 ' Aylesford v. Morris (1873) S Ch. 4S9, per Selborne L.C. ; and see 
 Allcard V. Skinner\\^Sl) 36 Ch. D. 145.
 
 so VENDORS AND PLTRCHASERS. 
 
 Sale of Reversion. — Upon the purchase of an estate 
 in possession, and where no fiduciary relation exists 
 between the parties, mere inadequacy of consideration, 
 unless shown to be the result of fraud, surprise, mis- 
 representation, or improper concealment on the part of 
 the purchaser, is no defence to a suit for specific per- 
 formance, unless the inadequacy of price is such as 
 shocks the conscience, and amounts in itself to conclu- 
 sive and decisive evidence of fraud in the transaction.' 
 In the case of contracts for the sale or charge of rever- 
 sionary interests, however, courts of equity imposed 
 upon the purchaser the burden of proving that he gave 
 full value, upon failure of which they held the property 
 to be redeemable by the reversioner upon repayment of 
 the consideration with interest.^ Where the sale was 
 made by auction the burden of proof was shifted, 
 because the price at a sale by auction was taken as priind 
 facie evidence of the full market value. ^ Now by the 
 Sales of Reversions Act, 1867, it is provided that " no 
 purchase, made bond fide, and without fraud or unfair 
 dealing-, of any reversionary interest in real or personal 
 estate shall hereafter be opened or set aside merely on 
 the ground of undervalue "; and " purchase" includes 
 every kind of contract, conveyance, or assignment under 
 or by which any beneficial interest in any kind of pro- 
 perty may be acquired.* 
 
 Trustees and Beneficiaries. — The general rule 
 stated above applies in all cases of persons dealing with 
 others to whom they stand in a recognised fiduciary 
 relation. A trustee for sale, i.e., a trustee who is 
 selling, is absolutely and entirely disabled from pur- 
 chasing the trust property, directly or indirectly, by 
 private contract or public auction, from himself, as the 
 
 ' Coles V. Trccothick (1804) 9 Ves. 246, per Lord Eldon ; Harrison v. 
 C.iicst (1860) 8 H.L.C. 481 ; Haygartli v. Wearing (1871) 12 Eq. 320. 
 
 ■^ Aldborough v. Trye (1840) 7 CI. & F. 436; Re Slater's Trust (1879) 
 11 Ch. D. 227. 
 
 ^ Shelley v. Nash (1818) 3 Madd. 232 ; Fox v. Wright (1821) 6 Madd. 
 111. 
 
 * 31 Vict. c. 4, Sects. 1,2; and see Tyler v. Yates (1871) 6 Ch. 669 ; 
 Jtidd V. Green (1875) 45 L.J. Ch. 108; O'Rorke v. Bolingbrobe (1877) 2 
 App. Cas. 814 ; Fry v. Latie (1888) 40 Ch. D. 312. •
 
 RKALITV OF CONSENT. 81 
 
 single trustee or with the sanction of his co-trustees.' 
 The situation of the trustee gives him an opportunity of 
 knowing- the value of the property, and as he acquires 
 that knowledg^e at the expense of the beneficiary, he is 
 bound to apply it for the beneficiarv's benefit.' 
 
 The rule is universal, that however fair the transac- 
 tion, the beneficiary is at liberty to set aside the sale 
 and take back the property.'' And as a trustee cannot 
 buy on his own account, he cannot buy as agent for a 
 third person.* The rule is, however, that the trustee 
 cannot buy from himself; there is no rule that a trustee, 
 whether for sale or otherwise, mav not purchase from 
 the beneficiary."' Therefore, while a purchase by a 
 trustee conducting the sale, either personally or by his 
 agent, cannot stand, a purchase by a trustee from a 
 beneficiary, of the interest of the latter in the trust, may 
 stand, if the trustee can show that the fullest information 
 and every advantage were given to the beneficiary.^ 
 Before any dealing with the beneficiary, the relation 
 between the trustee and the beneficiary must be actually 
 or virtually dissolved.^ 
 
 Executor axd Legatee. — The same principle applies 
 to an executor purchasing the assets of his testator or 
 the interest of a legatee.* 
 
 Solicitor and Client. — "There is no rule that a 
 solicitor may not purchase his client's property, even 
 while the relation subsists between them ; but the onus 
 is thrown upon the solicitor to show that everything is 
 perfectlv fair; and that the vendor knew what he was 
 doing, and that the full price was given, and that no 
 
 ' Fox V Mackreth (1788) 2 Bro. C.C. 400; Aberdeen Rly . Coy . v . 
 Blakie, 1 Macq. 472 ; Crowe v. Ballard. 2 Cox 253 ; Parker v. McKcnna 
 10 Ch. 96; ex parte Bennett. 10 Ves. 394 
 
 - Ex parte James, 8 Ves. 348 ; Liuldy's Trustee v. Peard, 33 Ch. D. 
 500. 
 
 •' Ex parte Laccy, 6 Ves. 625. 
 
 ^ Ex parte Bennett. 10 Ves. 381 ; Coles v. Trecothick, 9 Ves. 248. 
 
 ■'- Thomson v. Eastwood (1877) 2 App. Cas. 236 ; Coles v. Trecothick, 
 supra . Dougan v. McPherson (1902) A.C. 197. 
 
 6 Darton v. Donner, 23 Beav. 285 ; Luff x . Lord, 34 Beav, 220. 
 
 ^ Downes v. Grazebrook, 3 Mer. 208. 
 
 ^ Beningfield v. Baxter (1886) 12 App. Cas. 167; Re Worssam (1882) 
 51 L.J. Ch. 669. 
 
 6
 
 82 VENDORS AND PURCHASERS. 
 
 advantage was taken of the character of solicitor."* 
 The circumstance that the client was not advised by a 
 separate solicitor will not of itself avoid the sale ; but the 
 solicitor's proper course is to insist on his client taking 
 such separate advice.^ 
 
 Parent and Child and Guardian and Ward. — 
 Agreements between a child and parent or ward and 
 guardian are presumptively affected by undue influence 
 and therefore voidable ; and the burden is thrown upon 
 the parent or guardian of showing that the child or 
 ward acted freely and with independent advice. The 
 rule applies in the case of persons of full age, so long as 
 they are not free from parental control.^ 
 
 Other Cases. — The same general principle applies 
 to all the variety of relations in which it is shown that 
 dominion has been exercised by one person over 
 another;^ as where a transaction is entered, into with a 
 person who is illiterate and ignorant of business, and 
 who has no independent advice;^ or WMth a person who 
 is under such pecuniary necessity as not to be a free 
 hgent ;* and in any case of a confidential adviser taking 
 a benefit from the person dependent upon his advice.^ 
 
 ' Gibson v. Jeves (1801) 6 Yes. 271 ; Farrar v. Farrars, Ltd. (1888) 
 40 Ch. D. 395 ; Wright v. Carter (1903) 1 Ch. 27. 
 
 '^ Edwards v. Mcyrick. 2 Hare 60; Spencer \. Tophani, 22 Beav. 
 573 ; Re Haslam and Hier-Evans (1902) 1 Ch. 765. 770. 
 
 •■' Bawhriggc v. Broun (1881) 18 Ch. D. 188; Tucker v. Bennett 
 (1888) 38 Ch. D. 1. 
 
 * Dent V. Bennett (1838) 4 M. & Cr. 277. 
 
 * Evans v. Llewellyn (1787) 1 Cox 333 ; Fry v. Lane (1888) 40 Ch.D. 
 312. 
 
 * James v. Kerr (1889) 40 Ch. D. 449. 
 
 ^ Tate V. Williamson (1866) 2 Ch. 55 ; Moxon v. Payne (1873) 8 Ch. 
 «81.
 
 CHAPTER VI. 
 
 CONTRACTS OF AGENTS. 
 
 Section 1 — Introductory. 
 
 Definition. — An " agent " is a person having- 
 autiiority, express or implied, to act on behalf of 
 another person, called his " principal.'" He is a 
 medium by which his principal is brought into con- 
 tractual or other relations with third parties." 
 
 General and Special Agents. — Agents are distin- 
 guished in respect of authority as general and special 
 agents. General agents include brokers, factors, auc- 
 tioneers, solicitors, partners, and all persons employed in 
 a business or profession or tilling a position of a gener- 
 ally recognised character, and who have authority to act 
 for their principals in all matters, or in all matters 
 concerning a particular trade or business, or of a par- 
 ticular nature, or to do some act in the ordinary course 
 of their trade, business, or profession as agents. A 
 special agent is one who has authority only to do some 
 particular' act or to represent his principal in some 
 particular transaction, such act or transaction not being 
 in the ordinary course of his trade, profession or busi- 
 ness as an agent." 
 
 Factors. — A factor is a person to whom goods are 
 consigned for sale by a merchant residing at a distance 
 from the place of sale, and he usually sells in his own 
 name without disclosing that of his principal ; the 
 latter, with full knowledge of these circumstances, trusts 
 him with the actual possession of the goods, and gives 
 him authority to sell in his own name.' And he is not 
 less a factor because, as between him and his principal, 
 he is under restriction as to the price at which the goods 
 are to be sold, or is bound to sell in the principal's 
 name.^ 
 
 1 R. V. Kane (1901) 1 K.B. 472. 
 
 - Re Moline, ex parte Dyster (1816) 2 Rose, 349. 
 
 3 See further, Section 5, infra, pp. 88-94. 
 
 •" Baring v. Corrie (1818) 2 B. & Aid- 137. 
 
 •' Stevens v. Biller (1883) 23 Ch. D. 31.
 
 84 VENDORS AND PURCHASERS. 
 
 Brokers. — The character of a broker is materially 
 different from that of a factor; he is not intrusted with 
 the possession of goods, and ought not to sell them in 
 his own name/ He is to be considered as an agent of 
 the seller, or the buyer, or of both, bound honestly to 
 exercise his skill and fairly to communicate his opinion 
 on the subject of the purchase to those who, for that 
 purpose, have confidently employed him.^ 
 
 Auctioneers. — An auctioneer is a skilled agent, to 
 whom complete control of the operations at a sale is 
 intrusted, and he is in the position of an independent 
 contractor.^ He may or may not be intrusted with the 
 possession and control of the property to be sold. Until 
 the property is knocked down the auctioneer is the agent 
 of the vendor, but after the fall of the hammer he is 
 also the agent of the purchaser,^ and has implied 
 authority to sign a contract of sale or a memorandum 
 thereof on behalf of both vendor and purchaser, and his 
 signature is a sufficient compliance with the require- 
 ments of the Statute of Frauds, section 4, or of the 
 Sale of Goods Act, 1893, section 4, so as to make the 
 contract binding upon both vendor and purchaser.* 
 But his authority as agent extends to sale only.* An 
 auctioneer may at a sale by auction sell property of 
 which he is himself the owner ;^ in which case he cannot 
 sign the contract as agent of the purchaser.* 
 
 House and Estate Agents. — As a general rule, the 
 business of house and estate agents is to find offers 
 and submit them to their principals for acceptance. 
 Authority to enter into contracts on behalf of their 
 employer cannot be inferred from the relations existing 
 between them ;' and this is so, even though the price 
 
 ' Baring v. Corrie, supra. 
 
 - Re Moline, ex parte Dyster (1816) 2 Rose, 349. 
 
 ' Walker v. Crabb (1916) 33 T.L.R. 119. 
 
 ' Emvierson v. Heelis (1809) 2 Taunt. 38 ; White v. Proctor (1811> 
 4 Taunt. 209. 
 
 ' Ibid. 
 
 « Seton V. Slade (1802) 7 Ves. 265. 
 
 ■ Flint V. Woodin (;i852) 9 Hare 618. 
 
 " Bttckmaster v. Harrop (1802) 7 Ves. 341; (1807) 13 Ves. 456; 
 Wright V. Dannah (1809) 2 Camp. 203. 
 
 " Thuman v. Best (1907) 97 L.T. 239.
 
 CONTRACTS OF AGENTS. 85 
 
 at which tlie principal is prepared to sell his property 
 is named in the instructions.* 
 
 Del Credere Agents. — Del credere agents are mer- 
 cantile agents who, in consideration of an extra remu- 
 neration, called a del credere commission, guarantee to 
 their principals that third persons with whom they enter 
 into contracts on behalf of their principals shall duly 
 pay any sums becoming due under those contracts. 
 Such an agency may be implied from facts showing 
 that the agent was charging an additional commission 
 for risk. 
 
 Section 2 — How Agency Arises. 
 
 In General : The relation of agency arises, and can 
 only arise, by virtue of the mutual assent, express or 
 implied, of principal and agent,"^ except where the rela- 
 tion is imposed by operation of law in certain cases of 
 necessity.^ 
 
 Where the principal or some person authorised by 
 him appoints the agent by deed, by writing under hand, 
 or by parol, the relation of agency is expressly consti- 
 tuted." 
 
 The relation of agency is implied by law from the 
 conduct or situation, of the parties, or from the necessity 
 of the case.* 
 
 The relation may also be constituted w'here the prin- 
 cipal has ratified an act done by the agent professedly 
 on the principal's behalf." 
 
 Where it is alleged that the relation of agency exists 
 by virtue of an express agreement between the parties, 
 the question is to be determined upon the true con- 
 struction of the agreement and the intention of the 
 parties.' If it is contemplated by the agreement thnt 
 
 ' Hainerv. Sharp (1874) L.R. 19 Eq. lOS ; Chadburnv. Moore (1892) 
 61 L.J. Ch. 674 ; Prior v. Moore (1887) 3 T.L.R. 624. 
 
 '^ Markwick v. Hardingham (1880) 15 Ch. D. 339. 
 
 ■' See infra, p. 8G. 
 
 * Gosling V. Gaskell (1897) A.C. 575; Re Vimbos Ltd. (1900) 1 Cli. 
 470 ; Re Hale (1899) 2 Ch. 107. 
 
 = Trent V. Hunt (1853) 9 Exch. 14. 
 
 ^ See Infra, p. 86. 
 
 ' Markwick \. Hardingham (1880) 15 Ch.D. 339; Re Nevill,ex parte 
 White (1871) 6 Ch. App. 397.
 
 86 VENDORS AND PURCHASERS. 
 
 the alleged agent is to act on his own behalf and not 
 on behalf of the alleged principal, the relation of agency 
 does not exist.' 
 
 AoKXCV BY EsToiM'iJL. — "Where one has so acted as 
 from his conduct to lead another to believe that he has 
 appointed someone to act as his agent and knows that 
 that other person is about to act on that belief, then, 
 unless he interposes, he will in general be estopped 
 from disputing the agency, though in fact no agency 
 reallv existed." Thus, if a person sends goods to an 
 auction room or repository for sale, or to a factor or 
 broker whose business it is to sell such goods, he is 
 presumed to authorise a sale without anv limitation as 
 to price.' Agency may also be presumed from previous 
 dealings of the principal, as the buying or selling of 
 goods through a person professedlv acting as his agent. ^ 
 
 Agexcv from Xecessitv of Case. — In exceptional 
 cases authority is implied in law from the necessity of 
 the occasion to contract on behalf of the person whose 
 interest is concerned. A carrier of goods or master of 
 a ship may in certain circumstances, in the interest of 
 his employer, pledge his credit for the purpose of pro- 
 tecting his property. A married woman becomes an 
 agent of necessity to supply her ^\ants upon the credit 
 of her husband who has left her without means o^ 
 subsistence. 
 
 Section o — Capacity of Parties. 
 
 Of Principal. — \Miatever a person can do personally, 
 he can, with certain exceptions, do bv an agent. ^ Con- 
 versely, what a man may not do personally, he may 
 not do by an agent ; the powers of an agent are limited 
 by the limitation of the powers of the principal. Con- 
 tracts not binding on the principal, as being ultra vires, 
 
 ' Ibid : De Bussche v. Alt (1878) 8 Ch. D. 286. 
 
 * Pole V. Leask (1863) 33 L.J. Ch. 162. 
 
 •'' Pickering v. Bt4sk (1812) 15 East 43 ; Rainbow v. Howkitis (1904) 
 2 K.B. 322 ; and see Weiner v. Harris (1910) 1 K.B. 285. 
 
 * Pole V. Lcask, supra. 
 
 ■• Bevan v. Webb (1901) 2 Ch. 59.
 
 COXTKACTS OF AGEN'TS. 87 
 
 do not become binding- because they were entered into 
 through tlie mechum of an agent/ 
 
 The principles stated above are well-known common 
 law rules, and apply equally to the exercise of statutory 
 rights as to the exercise of other rights, in the absence 
 of limitations, express or implied, imposed by the par- 
 ticular statute in question.' It follows that where the 
 signature of a person is required by statute, signature 
 by his agent is sufficient unless the statute makes a 
 personal signature indispensable.'' 
 
 Of Agext. — To enable a person to act as agent on 
 behalY of another, it is not necessary that he should 
 "possess full contractual capacity.' Thus a married 
 woman, independently of the Married Women's Pro- 
 perty Acts, or an infant, may be an agent.* 
 
 SeCTIOX 4 — AppOINTMIiNT OF AgEXTS. 
 
 To Execute Deeds. — Where an agent is required to 
 execute an agreement which by law must be by deed, 
 it is essential that the agent's authority should be con- 
 ferred under seal. Such an authority is called a power 
 of attorney. 
 
 An exception to the above rule mav be made where 
 the principal is present at the execution of the deed on 
 his behalf, and the agent's authority may in such case 
 be given by word of mouth or by signs. "^ 
 
 The appointment of an agent by a corporation, in 
 accordance with the common law rule alread\' stated, 
 must be under seal.^ This rule, however, does not 
 apply to trading corporations* or companies incor- 
 porated under the Companies Acts." 
 
 ' Montreal Assurance Coy. v.M'Gillivray (1859) 13 Moo. P.C.C. 87. 
 
 ■^ Jackson & Co.v. Napper (18S6) 35 Ch. D. 162. 
 
 •' R. V. Kent J.J. (1873) L.R. 8 Q.B. 305; Re Whitley Partners 
 (1886) il Ch. D. 337. 
 
 ' Kirby v. Gt. W. Rly. Co. (1868) 18 L.T. 658. 
 
 ' Sinally v. Smally (1700) 1 Eq. Aft. 6. 
 
 « Rex V. Longnor (1833) 4 13. & Ad. 647. 
 
 ■ Kidderminster v. Hardwicke (1873) L.R. 9 E.x. 13. 
 
 " South of Ireland Colliery Coy. v. Waddle (1869) L.R. 4 C.P. 617. 
 
 '■* See, generally, Chapter IL, Sect. 2, on Capacity of Corporations 
 and Companies, ante, pp. 11-13.
 
 Vi:XD(^RS AND PURCHASERS. 
 
 OiHtK Cash:s. — As a general rule, where an agent is 
 appointed to perform certain acts on behalf of his prin- 
 cipal, the appointment need not be by deed or in writing, 
 unless by statute or by the terms of the power or 
 authority under which the appointment is made an 
 appointment by deed or in writing is required either 
 expressly or by necessary implication.^ Thus, though a 
 contract for the sale and purchase of land must be in 
 writing by the Statute of Frauds, an agent appointed 
 for the purpose of such sale or purchase may be 
 appointed by parol .^ The same rule applies to con- 
 tracts within section 4 of the Sale of Goods Act, 1893.^ 
 
 Section 5 — Authority of Agents. 
 
 Generally. — The nature and extent of an agent's 
 authority is defined either by the express terms in which 
 it is given, or b}^ the circumstances or conduct from 
 which it is implied. In no case can the agent's 
 authority exceed the power of the principal himself.* 
 As between the principal and his agent, the authority 
 may be limited by agreement or special instructions, 
 but as regards third parties the authority of the agent 
 is that which he is reasonably believed to have having 
 regard to the circumstances of the case, or the nature 
 of the agent's employment and duties.^ 
 
 An authority conferred in general terms is construed 
 as authority to act only in the usual way* and according 
 to the ordinary course of business^ or trade.® And 
 
 ' See Cooke v. Jackson (1850) 15 L.T. O.S. 523. 
 
 2 Waller v. Hendon & Cox (1723) 2 Eq. Gas. Abr. 50 ; Heard v. Pilley 
 (1869) 4 Gh. App. 548; James v. Smith (1891) 1 Ch. 384 ; Cavev. 
 Mackenzie (1877) 46 L.J. Ch. 564; Rochefoucauld v. Roiistead (1897) 
 1 Gh. 196. 
 
 ■'' See Graham v. ^]iisson (1839j 5 Bing. N.G. 603; decided under 
 Sect. 17 of the Statute of Frauds. 
 
 * See Pole v. Leash (1860) 28 Beav. 562 ; Montreal Assurance Coy. 
 V. M'Gillivray (1859) 13 Moo. P.G.G. 87. 
 
 •• Brady v. Todd (1861) 9 G.B. N.S. 592. 
 
 « Wiltshire v. Sims (1808) 1 Camp. 258. 
 
 ' Ireland v. Livingston (1866) L.R. 2 Q.B. 99. 
 
 " Sweeting v.Pearce (1861) 9G.B. N.S. 534 ; Pickering v. Busk (1812) 
 15 East. 38.
 
 CONTRACTS OF ACKNTS. 89 
 
 where an agent is authorised to transact business in a 
 market with the usai^^es of which the principal is 
 unacquainted, the principal is bound by the agent's 
 contract if the usages of the market relate onlv to the 
 mode of performing the contract and do not change its 
 intrinsic character.' 
 
 Where the authority of the agent is conferred in 
 ambiguous terms so as to be fairly and reasonably 
 capable of more than one construction, and the agent 
 bond fide acts upon it according to one construction, 
 the principal cannot repudiate the act as unauthorised 
 because he intended the authority to be acted upon 
 according to another construction/ 
 
 PcnvERS OF Attorney. — Powers of attornex are to be 
 construed strictly, and in all cases are to be examined 
 carefully in order to see whether the act done bv the 
 agent is expressly or by necessary implication within 
 the scope of the authority conferred.'^ An express 
 power includes all incidental powers necessary to be 
 exercised in order to accomplish the object of the 
 principal powers.^ The general object of the power is 
 described in the recitals, and the operative part of the 
 deed is controlled by these;* and words giving general 
 authority are taken as restricted to the special purposes 
 of the power.' 
 
 A power of attorne\- to deal with land gives authority 
 to sell the land, the conditions of sale depending on the 
 wording of the authority;^ but the portion included in 
 a voluntary settlement may not be sold.^ A power to 
 sell land belonging to the principal does not give 
 authority to exercise a power of sale vested in the 
 principal as mortgagee;^ nor does a general power to 
 
 ' Robinson v. Mollett (1875) L.K. 7 H.L. 802. 
 ^ Ireland v. Livingston (1872) L.R. 5 H.L. 395. 
 ■'* Attwood V. Munnings (1827) 7 B. & C. 278. 
 •* Howard v. Baillie (1796) 2 H.Bl. 618. 
 « Danby v. Coutts & Co. (1885) 29 Ch. D. 500. 
 
 ^ Esdaile v. La Naiize (1840) 4 L.J. Ex. Eq. 46; Harper v. 
 Godsell (1870) L.R. 5 Q.B. 422. 
 
 ' Hawkesley v. Outrani (1892) 3 Ch. 359. 
 
 " General Meat Supply Association v. Boufflcr (1879) 40 L.T. 126. 
 
 3 Re Dowson and Jenkins' Contract (1904) 2 Ch, 219.
 
 90 VENDORS AND PURCHASERS. 
 
 mortgag-e, sell or otherwise deal with an estate authorise 
 the attorney to execute a deed as a voluntary settle- 
 ment.' 
 
 Authority ix Writing. — Written authority is not 
 construed so strictly as authority under seal, and due 
 ree:ard is had to all the circumstances of the case." 
 
 Verbal Authority. — The construction and extent of 
 authority given verbally are questions of fact, depending 
 on the circumstances of the case and the usages of trade 
 or business. Authority given in general terms confers 
 power to act in the ordinary and usual way of business 
 or trade and to do all subordinate and reasonable acts 
 in relation to the business.^ 
 
 Implied Authority. — As a general rule, where 
 general authority is given to an agent, there is implied 
 a right to do all subordinate acts incident to, and neces- 
 sary for, execution of that authority, and if notice is 
 not given that the authority is specially limited, the 
 principal is bound by the agent's acts.^ Strangers can 
 only look to the acts of the parties and to the external 
 indicia of property and not to the private communica- 
 tions which may pass between a principal and his agent. 
 So if a person authorises another to assume the apparent 
 right of disposing of property in the ordinary course of 
 trade it must be presumed that the apparent authority 
 is the real authority.* In the case of a general agent. 
 the principal is bound bv all his acts; but it is other- 
 wise in the case of a special agent ; the principal in 
 that case can onlv be bound to the extent of the authority 
 given .^ 
 
 Factors. — A factor entrusted with goods for sale has 
 implied authority to sell the goods in his own name at 
 such times and for such prices as he thinks fit, on reason- 
 able credit, with a warranty if it is usual to warrant that 
 
 ' Re Bowles (1874) 31 L.T. 365. 
 
 - Pole V. Leask (1860) 28 Beav. 562 ; Parientc v. Lubbock (1855) 20 
 Beav 588. 
 
 ' Collen V. Gardner (1856) 21 Beav. 540. 
 
 ^ Pickering v. Busk (1812) 15 East 38. 
 
 •'' East India Coy. v. Hensley (1794) 1 Esp. Ill ; Brady v. Todd 
 (1861) 9 C.B. N.S. 592; Hicks v. Hankin (1802) 4 Esp. 114.
 
 CON"! R ACTS OK AGIINTS. 91 
 
 class of goods, and to rcceixc paxmcnt of the pr'wv where 
 he sells in his own name.' I^ut he lias no implied 
 authority, as such, to delegate his autiiority, whether 
 acting- on a del credere commission or not; or to barter 
 or pledge goods or the bill of lading for goods entrusted 
 to him for sale." Private instructions restrictive of the 
 apparent authority due to the character of factors do not 
 affect tile contracts made by him in the course of his 
 business imless communicated to the other part}'. 
 
 J3roki:ks. — A broker is an agent employed to buy 
 and sell goods, differing from a factor in not being 
 intrusted with the possession of the goods, and in not 
 having authority to contract in his own name or to 
 receive payment."' In the first place, he is an agent for 
 the person who originally employs him, but when the 
 contract is made he is an agent to $ign for both seller 
 and buyer.' An entry in his book, signed by him, is 
 a sufficient memorandum within the Sale of Goods Act, 
 1898, Section 4.'' The broker generall}- makes two 
 copies of this entry, sending one (the " bought note ") 
 to the buyer, and the other (the " sold note ") to the 
 seller. These notes, if they agree, also constitute a 
 sufficient memorandum to satisfy the statute.*^ 
 
 A broker, signing himself in bought and sold notes 
 as broker for a principal, whether the principal is named 
 or not, is presumptively not a contracting party, and 
 cannot sue or be sued personally on the contract.' But 
 he may be made a party by the express terms of the 
 contract, although he is known to be and is described 
 
 1 Baring v. Corrie, (1818) 2 B. & Aid. 143; Smart v. Sanders (1846) 
 17 L.J. C.P. 258; Houghton v. Matthcu-s (1803) 3 B. & P. 485: 
 Dingle v. Hare (1859) 7 C.B. N.S. 145 ; Drinkwater v. Goodicin (1775) 
 Cowp. 251. 
 
 - Cochran v. Irlam (1813) 2 M. & S. 301 ; Gnerreiro v. Peile 
 (1820) 3 B. & A. 616 ; Martini v. Coles (1813) 1 M. & S. 140 ; Neu-som 
 V. Thornton (1805) 6 East 17. 
 
 •' Baring v. Corrie (1868) 2 B. & A. 137 ; Stevens v. Biller (1883) 25 
 Ch. D. 31. 
 
 * Thompson v. Gardiner (1876) 1 C.P.D. 777; Re Moline. ex parte 
 Dyster (1816) 1 Mer. 155. 
 
 •■• Hinde v. Whitehotise (1806) 7 East 558. 
 
 •^ Rucker v. Cammeyer (1794) 1 Esp. 105 ; Chapman v Partridge 
 (1805) 5 Esp. 256. 
 
 ' Fawkes v. Lamb (1861) 31 L.J. Q.B. 98.
 
 92 VENDORS AND PURCHASERS. 
 
 in the contract as a broker;^ and by the express terms 
 of his employment or by the usages of trade he may be 
 personally liable to his principal for the validity and 
 performance of the contracts made by him.^ 
 
 A broker employed in a particular trade or market is 
 impliedly authorised to contract according to the usages 
 of the trade or place, so far as they are not inconsistent 
 Avith his employment as broker ; and he is impliedly 
 authorised " to make contracts upon the footing of such 
 usages, provided they are such as regulate the mode of 
 performing the contracts and do not change their 
 intrinsic character";^ it is immaterial whether the 
 employer is acquainted with the particular usages.^ 
 
 Auctioneers. — An auctioneer has a possession, 
 coupled with an interest, in goods which he is employed 
 to sell f accordingly he has a general authority to sell 
 the goods in his own name and prima facie may sue and 
 be sued upon the contract so made.^ An auctioneer 
 has an implied authority to sell without reserve, and if 
 he does so the vendor cannot set up against the buyer a 
 limitation of that authority not known to the buyer/ 
 He has no general authority to warrant the goods sold 
 beyond the description given by the owner for the pur- 
 pose of sale.^ An auctioneer has implied authority at 
 a sale by auction to sign a contract or memorandum 
 thereof on behalf of both vendor and purchaser, and 
 his signature is a sufficient compliance with the require- 
 ments of the Statute of Frauds and the Sale of Goods 
 Act, 1898.® His implied authority does not extend to 
 
 ' Sharman v. Brandt (1871) L.R. 6 Q.B. 720. 
 
 '' Fleet V. Murton (1871) L.R. 7 Q.B. 126. 
 
 '■' Robinson v. Mollett (1875) L.R. 7 H.L. 836; Blackburn v. Mason 
 (1893) 68 L.T.510. 
 
 ' Sutton V. Tatham (1839) 10 A. & E. 27 ; Bayliffe v. Butterworth 
 (1847) 1 Ex. 425. 
 
 •' V/tlliams v. Millington (1788) 1 H. BI. 81 ; Consol. Co. v. Curtis 
 (1892) 1 Q.B. 495. 
 
 « Woolfe V. Home (1877) 2 Q.B.D. 355. 
 
 ''Rainbow v. Howkins (1904) 2 K.B. 322; Rinnncr v. Webster 
 (1902) 2 Ch. 163. 
 
 *' Payne v. Leconfield (1882) 51 L.J. Q.B. 642. 
 
 " Emmcrson v. Heelis (1809) 2 Taunt. 38; White v. Proc/or (1811) 
 4 Taunt. 209 ; Wallace v. Roe (1903) 1 Ir.R. 32 ; Bell v. Balls (1897) 
 1 Ch. 663.
 
 CONTRACTS OF AGENTS. 93 
 
 dealing, after sale, with the terms (tn which a title to 
 the property sold shall be made; he is an agent tor 
 sale only,' and for sale bv public auction only; he has 
 no implied authority to sell by private contract even if 
 the public sale proves aborti\e and he is offered more 
 than the reserve price. ^ 
 
 House and Estate Agents. — Estate agents, as a 
 rule, have no general authority to enter into contracts 
 on behalf of their principals unless expresslv authorised 
 to do so, their duty being merely to submit to their 
 principals any offers which may be made to them. If 
 any authority to enter into contracts is given it must be 
 proved and cannot be inferred from the relations exist- 
 ing between the parties.' The employment of an 
 estate agent with instructions to procure a purchaser, 
 merely stating particulars and price of the property, 
 gives no authority to the agent to sign a contract of 
 sale.* But instructions given by an owner of real estate 
 to an agent to sell the property for him, and an agree- 
 ment to pay a commission on the purchase price 
 accepted, are an authority to the agent to make a binding 
 contract and to sign an agreement for sale f but the 
 authority, in the absence of express instructions to the 
 contrary, is limited to signing an open contract and 
 does not authorise the agent to sign a contract with 
 special conditions, e.g., as to title, which it is no part of 
 an estate agent's duty to deal with.'' But an authority 
 to act " in and about " the purchase of a property is 
 not an authority to purchase.^ 
 
 Commission Agents. — A commission agent is a 
 person who establishes no privity of contract between 
 his principal and other parties, but is employed to buy 
 or sell goods for him on the best possible terms, receiv- 
 
 ' Seton V. Sladee(l802) 7 Ves. 265. 
 
 2 Daniel v. Adams (1764) Ambl. 495 ; Marsh v. J elf (\S62) 3 F. & F. 
 234. 
 
 ^ Thuman v. Best (1907) 97 LT. 239. 
 
 ^ Hatiier v. Sharp (1874) L.R. 19 F.q. 108 ; Chadburn v. Moore (1892) 
 61 L.J. Ch. 674. 
 
 5 Ibid. ; Rosenbautn v. Belson (1900; 2 Ch. 267 : Wilde v. Watson, 
 1 L.R. Ir. 403 ; Keen v. Mear (1920) 2 Ch. 574. 
 
 ^ Keen v. Mcar, supra. 
 
 • Vale of Neath Colly. Coy. v. Furness (1876) 45 L.J. Ch. 276.
 
 94 VENDORS AND PURCHASERS. 
 
 ing botli the price of the goods and a commission for 
 his services.' Therefore an agent who has bought upon 
 commission cannot charge his principal for goods sold 
 and delivered as upon a contract of sale,^ nor can the 
 principal claim damages against the commission agent 
 upon that basis, but for negligence in the execution of 
 his commission.^ 
 
 Section 6 — Delegation of Authority. 
 
 General Rule. — The maxim is delegatus non potest 
 delegare. This imports that " an agent cannot, with- 
 out authority from his principal, devolve upon another 
 obligations to the principal which he has undertaken 
 to fulfil personally, and as confidence in the particular 
 person employed is at the root of the contract of agency,* 
 such authority cannot be implied as an ordinary 
 incident in the contract." 
 
 Where a principal appoints an agent, e.g., a broker, 
 from the opinion he entertains of his personal skill and 
 integrity, the agent has no right without notice to his 
 principal to delegate the performance of his duties,^ 
 however general they mav be. 
 
 Implied Authority. — Where the exigencies of busi- 
 ness render necessary the carrying out of the principal's 
 instructions by a person other than the agent originally 
 instructed, the rule must be relaxed so as to enable the 
 agent to appoint a sub-agent and to constitute, in the 
 interests and for the protection of the principal, a direct 
 privity of contract between him and such substitute. 
 An authority to delegate will, therefore, be implied 
 where, from the conduct of the parties to the original 
 contract of agency, the usage of trade, or the nature of 
 the particular business which is the subject of agency, 
 it may rejisonably be presumed that the parties to the 
 contract of agency originally intended such authority 
 .should exist, or where, in the course of the employment, 
 
 ' Ireland v. Livingston (1872) L.R. 5 H.L. 407. 
 ■^ Seymour v. Pychlan (1817) 1 B. & Aid. 14. 
 •'' Salvcscn v. R.A.N. (1905) AC. 302. 
 * See De Bussche v. Alt (1878) 8 Ch. D. 286. 
 •^ Cochran v. Irlam (1814) 2 M. & S. 301.
 
 CONTRACTS OF AGENTS. 95 
 
 unforeseen emerg^encies arise which im]D()se upon the 
 af^^ent the necessity of employing a substitute.' 
 
 PosiTRW OF Sub-Ac;knt. — As a jii^eneral rule, there 
 is no privity of contract between a principal and sub- 
 aijent, and the sub-ai^ent is liable only to his immediate 
 principal, the a^jent," and where the sub-air«"nt is em- 
 ployed without the authorit}', express or implied, of the 
 principal, the principal is not bound by his acts.' Hut 
 where the principal is a party to the appointment of 
 the sub-agent or has subsecjuently adopted his acts, and 
 it was the intention of the parties that privitv of con- 
 tract should be established between them, the sub-agent 
 is liable to the principal, and his acts bind the principal.' 
 
 Section 7 — Exixi'tion of Authority. 
 
 Generally. — It is the duty of an agent to exercise his 
 authority exactly in the terms in which it is given," and 
 this applies particularly to the exercise of powers of 
 attorney."^ An agent may deviate from his instructions 
 in his endeavours to do the best he can for his principal, 
 but he takes upon himself the risk whether his principal 
 will approve of his conduct.' An agent who under- 
 takes a duty for remuneration is bound to perform his 
 undertaking;^ but there is no liability attached to the 
 performance of a gratuitous undertaking.^ 
 
 Professional Accents. — Public profession of an art 
 is a representation and undertaking to all the world that 
 the professor possesses requisite care and skill.'" And a 
 
 1 De Bussche v. Alt (1878) 8 Ch.^D. 286. 
 
 ^ Schmaling v. Tomlinson (1815) 6 Taunt. 147. Hannaford v. Situs 
 (1898) 79 L.T. 30. 
 •■* Wray v. Kemp (1883) 26 Ch. D. 163. 
 
 ^ De Bussche v. Alt (1878) 8 Ch. D. 286; Poxcell v. Jones (1905) 
 1 K.B. 11. 
 
 •' Holophane Ltd. v. Hcsscltine (1896) 13 T.L.R. 7. 
 ^ Attwood V. Mannings (1827) 7 B. & C. 278. 
 
 ' Prince v. Clarke (1823) 1 B. & C. 186 ; Pent Republic v. Peruvian 
 Guano Coy. (1887) 36 Ch. D. 489. 
 
 ** Turpin V. Bilton (1843) 5 M. & G. 455 ; Pariente v. Lubbock (1856) 
 8 De G. M. & G. 5. 
 » Coggs V. Bernard, 2 Raym. 909 ; Balfe v. West (1853) 13 C.B. 466. 
 " Harmer v. Cornelius (1858) 5 C.B. N.S. 236.
 
 96 VENDORS AND PURCHASERS. 
 
 man who is employed to act for another as his agent is 
 bound to exercise all the skill and knowledge he has of 
 a particular business, all the diligence, zeal and energy- 
 he is capable of, and any interests he may have himself 
 he is bound to exercise to the fullest extent for the sole 
 and exclusive benefit of the person for whom he is 
 acting/ 
 
 What is the usual or necessary, or a reasonable 
 degree of skill, care or diligence, is a question of fact 
 depending upon the nature of the agency and the cir- 
 cumstances of the particular case." 
 
 Section 8 — Ratification by Principal. 
 
 Ratification implies the absence of original authority.' 
 It is a general rule of common law that the person in 
 whose name an act has been done may, if he thinks 
 fit, aftenvards ratify and adopt it.* To constitute a 
 binding adoption or ratification of acts done without 
 previous authority, the acts must have been done for 
 and in the name of the supposed principal ; full know- 
 ledge of them and unequivocal adoption after knowledge 
 must be proved ; or else the circumstances must warrant 
 the clear inference that the principal was adopting the 
 acts of his supposed agent whatever their nature.^ 
 
 Ratification may be either a specific ratification of a 
 particular act or a general ratification of everything 
 done by the agent on behalf of his principal f but a 
 contract cannot be ratified in part and repudiated in 
 part; if ratified, the whole contract must be ratified." 
 
 A contract can only be ratified by the principal con- 
 templated at the time Avhen it was made. He need not 
 be named. ^ He must be a person ascertained at the 
 
 * Price V. Metrop. House Invest. Agency Coy. (1907) 23 T.L.R. 630 
 per Cozens-Hardy, M.R. 
 
 2 Moneypenny v. Hartland (1S24) 1 C. & P. 352 ; Hurrell v. Bullard 
 (1863) 3 F. & F. 445. 
 
 ■' Richardson v. Oxford (1861) 2 F. & F. 449 ; Foster v. Bates (1843> 
 12 M. & \V. 
 
 ^ Phillips V. Eyre (1820) L.R. 6 Q.B. 1. 
 
 ' Marsh v, Joseph (1897) 1 Ch. 213. 
 
 ^ Fitzmanrice v. Bayley (i860) 9 H.L. Gas. 78. 
 
 • Hovil V. Pack (1805) 7 East 164. 
 
 *• Watson V. Swann (1862) 11 C.B. N.S. 756.
 
 CONTRACTS OF AGENTS. 97 
 
 time of the act and in existence either actually or in 
 contemplation of law;' and his ratification must be 
 made with full knowledije of the nature of the contract 
 and the circumstances of the case.^ 
 
 Section- 9 — Agent's Liability to Principal. 
 
 Obedience to Instructions. — The duty of the agent 
 to carry out his principal's instructions has already 
 been discussed. If the agent carries out his instructions 
 he is not liable to his principal for the consequences.' 
 Where no definite instructions are given, or where the 
 exercise of discretion is allowed, the agent must exercise 
 his own judgment with the utmost good faith and in 
 the interests of his principal.^ For any loss occasioned 
 to the principal by the agent's want of proper care, skill 
 or diligence in the performance of his duties, the agent 
 is liable, even though the principal himself has been 
 negligent.* In negotiating contracts the agent must 
 take all reasonable precautions that may be requisite for 
 the protection of his principal, and such contracts must 
 be in accordance with his instructions, or in accordance 
 with the usages of the trade, and capable of being 
 enforced by the principal.^ 
 
 To Account. — It is one of the first duties of an agent 
 to keep an account and to communicate the contents of 
 it to his principal." The principal of a general agent 
 has no means of knowing, except through the agent's 
 accounts, what the agent has received on his behalf, and 
 if such an agent omits to keep proper accounts the 
 Court will charge him with all moneys he might in the 
 discharge of his duty have received for his principal.^ 
 
 1 Kelnerv. Baxter (1866) L.R.C.P. 174. 
 
 2 De Bussche v. Alt (1878) 8 Ch. D. 286. 
 
 •• Overend, Giirney & Co., v. Gibb (1872) L.R. 5 H.L. 480. 
 
 * Cullerne v. London & Suburban General Permanent Building 
 Socy. (1890) 25 Q.B.D. 485. 
 
 '' Beat V. South Devon Rail. Coy. (1864) 3 H. & C. 341 ; Becker v. 
 Medd (1897) 13 T.L.R. 313. 
 
 6 Rainbow y.Howkins (1904) 2 K.B. 322 ; McManus v. Fortescue 
 (1907) 2 K.B. 1 : Stumor v. Breen (1886) 12 App. Cas. 698. 
 
 ' Chedworth v. Edwards (1802) 8 Ves. 46 ; Dadswell v. Jacobs (1887 
 34 Ch. D. 278. 
 
 ** Re Lee, ex parte Neville (1868) 4 Ch. App. 43. 
 
 7
 
 98 VENDORS AND PURCHASERS. 
 
 It is further the duty of such agents as factors, brokers, 
 auctioneers, to keep the property (including moneys 
 received) of their principals unmixed with their own 
 or the property of another.^ 
 
 Where an agent is employed to sell property on his 
 principal's behalf, he must not compromise his princi- 
 pal's rights or part with his property until he has 
 received payment in cash, unless authorised by his 
 instructions or by usage of trade to do so." All moneys 
 so received by him must be paid over or accounted for 
 to the principal f and if he fail to pay over or to 
 account for such moneys the principal may bring an 
 action against him for money had and received or may 
 claim an account/ 
 
 Purchases from or Sales to Principal. — As a 
 general rule, an agent may not enter into any transaction 
 in which his dutv to his principal conflicts with his own 
 interest, unless he has first made to his principal the 
 fullest disclosure of the exact nature of his interest, and 
 his principal has assented.* Thus, an agent employed 
 to purchase, cannot buy his own property for his prin- 
 cipal, neither can an agent employed to sell, purchase 
 for himself his principal's property. Principals may 
 either repudiate such transactions altogether or adopt 
 and take the benefit of them.'^ 
 
 Equity treats all transactions between an agent and 
 his principal in matters in which it is the agent's duty 
 to advise his principal as voidable unless and until the 
 principal, with full knowledge of the material facts and 
 in circumstances which rebut any presumption of 
 undue influence, ratifies and confirms the same. In 
 
 1 Gray v. Haig (1854) 20 Beav. 218. 
 
 2 Pape V. Westacott (1894) 1 Q.B. 272 ; Kidd v. Home (1885) 2 T.L. 
 R. 141 ; Wiltshire v. Sims (1808) 1 Camp. 258 ; Ferrers v. Robins (1835) 
 2 Cr. M. & R. 152 ; Farrar v. Lacy (1885) 31 Ch. D. 42. 
 
 ^ Harsant v. Blaine (1887) 56 L.J. Q.B. 511. 
 
 * Vide above cases generally. 
 
 '•' Parker v. McKenna (1874) 10 Ch. App. 96 ; Gluckstein v. Barnes 
 (1900) A.C. 240 ; Dunne v. English (1874) L.R. 18 Eq. 524; Rothschild 
 V. Brookman (1831) 2 Dow. & CL 188 ; Nutt v. Easton (1900) 1 Ch. 29 ; 
 Robinson v. Mollett (1874) L.R., 7 H.L. 802. 
 
 <5 Bentley v. Craven (1853) 18 Beav. 75 ; Lees v. Nuttall (1835) 2 
 My. & K. 819 ; Cave v. Mackenzie (1877) 46 L.J. Ch. 564 ; King v. 
 Howell (1910) 27 T.L.R. 114.
 
 CONTRACTS OF AGENTS. 
 
 such cases the interest of the agent is in conflict with 
 his duty, and there can be no real bargain at all. If 
 the transaction be one of sale by the agent to the prin- 
 cipal, the latter must, in order to avoid it, be able to 
 restore the agent to his original condition. If he has 
 resold the property or cannot restore it to its original 
 condition, the right to avoid the transaction will, as a 
 general rule, have been lost. But even so, he may be 
 able to recover damages from the agent for negligence 
 in the performance of his duties. Thus, an agent whose 
 duty it is to acquire property on behalf of his principal 
 cannot, without the consent of his principal, acquire 
 it on his own behalf and subsequently resell it to his 
 principal at an enhanced price. In such a case the 
 principal can treat the property as originally acquired 
 for him and the sale as nugatory, and may recover from 
 the agent the money paid on such resale, less the 
 original price and the expenses incurred by the agent 
 in acquiring the property. This only applies where 
 the relationship of principal and agent existed at the 
 time w^hen the agent acquired the property. If it did 
 not then exist, the property acquired was, at the outset, 
 the agent's own property for all purposes, and the 
 subsequent constitution of the relationship of principal 
 and agent cannot deprive him of property already his 
 own.^ 
 
 Section 10 — Agent's Rights against Principal. 
 
 Remuneration. — In order to found a legal claim for 
 commission on a sale, there must not only be a causal, 
 but also a contractual, relation between the introduction 
 of the purchaser and the ultimate transaction. It is 
 impossible to affirm in general terms that A is entitled 
 to commission if he can prove that he introduced to B 
 the person who afterwards became the cause of the sale. 
 If A had no employment to sell, express or implied, he 
 could have no claim to be remunerated. "" 
 
 In the absence of an express contract for remunera- 
 tion, such a contract may be implied from the circum- 
 
 1 Marler Estates Ltd. v. Marlcr (1913) 85 L.J. P.C. 167, per Lord 
 Parker. 
 
 2 Toulmin v. Millar (1887) 58 L.T. 96.
 
 100 VENDORS AND PURCHASERS. 
 
 Stances of the case.' The employment of a professional 
 agent, such as an auctioneer, raises the presumption of 
 a contract to remunerate him, the amount of the 
 remuneration and the conditions of its paynient being 
 ascertainable from the usages of his profession.^ The 
 right to remuneration arises when the agent has actually 
 or substantially carried out his duties and fulfilled the 
 conditions of his contract of agency.^ And his right is 
 not lost by the fact that the transaction is not beneficial 
 to his principal, or that it has subsequently fallen 
 through, unless the agent was himself the cause of his 
 services being abortive.* 
 
 As a rule, no remuneration is payable upon transac- 
 tions between the principal and third parties introduced 
 to him by the agent arising after the termination of the 
 agencv,'' unless they are in fact part of a larger transac- 
 tion in which the agent was employed.*^ or there was an 
 express contract to that effect." x-^nd an agent who is 
 prevented from earning his remuneration by some 
 wrongful act or default on the part of the principal is 
 entitled to recover from the latter as damages the 
 actual loss sustained by him.^ 
 
 The contract of agency implies that the principal will 
 reimburse the agent in respect of all expenses and indem- 
 nify him against all liabilities incurred in the reasonable 
 performance of his duties, in the absence of express 
 terms to the contrary .'* 
 
 LiEX. — Every agent has a lien on the property of his 
 principal in his possession in respect of all just claims 
 
 1 Bryant v. Flight (1839) 5 M. & W. 114. 
 
 '^ Broad v. Thames (1830) 7 Bing. 99 ; Turner v. Reeve (1901) 17 
 T.L.R. 592. 
 
 •• Chapman v. Winson (1904) 91 L.T. 17 : KirL- v. Evans (1889) 6 
 T.L.R. 9. 
 
 * Moir V. Marten (1891) 7 T.L.R. 330 ; Harris v. Petherick (1878) 39 
 L.T. 543 ; Fuller v. Barnes (1892) 8 T.L.R. 278. 
 
 ■'' Tribe v. Taylor (1876) 1 C.P.D. 505. 
 
 6 Wilkinson v. Martin (1837) 8 C. & P. 1. 
 
 • Salomon v. Brownfield (1896) 12 T.L.R. 239 ; Rohey v. Arnold 
 (1897) 14 T.L.R. 39. 
 
 "" Prickett V. Badger (1856) 1 C.B. N.S. 296. 
 
 9 Adamson v. Jarvis (1827) 4 Bing. 66 ; Morris v. Cleashy (1816) 4 
 M. & S. 566.
 
 CONTRACTS OF .UiKNTS. lOl 
 
 he may liave as agent against his principal, either for 
 remuneration earned, or advances made, or losses or 
 liabilities incurred in the course of the agency, provided 
 that the possession of the property was lawfully obtained 
 by him in the course of the agency and in his capacity 
 as agent and that the lien is not excluded by the 
 contract of agency, and that the property did not come 
 into his possession by any means inconsistent with the 
 right of Hen.* The lien is a particular one only, that 
 is to say, the right is confined to debts and obligations 
 incurred in respect of the property subject to the right, ^ 
 except where it is agreed, expressly or by implication, 
 that it shall be a general lien, in which case the right 
 extends in respect of debts and obligations incurred 
 independently of the property subject to the right." 
 
 A sub-agent appointed with the authority, express 
 or implied, of the principal, has the same right of lien 
 against the principal as he would have had if the agent 
 had been the owner of the property;' otherwise, as a 
 general rule, he has no such right of lien.'' 
 
 The lien is extinguished or lost when the agent enters 
 into any agreement or acts in any capacity which is 
 incompatible or inconsistent with the continuance of 
 the lien, or by waiver, express or implied/ 
 
 Agent's Right to an Account. — The rights of prin- 
 cipal and agent to an account are not necessarily 
 correlative. The right of the principal rests upon the 
 trust and confidence reposed in the agent, but the agent 
 reposes no such trust or confidence in the principal. It 
 is often impossible for the principal to discover, except 
 by the oath of the agent, the extent and value of the 
 agent's transactions. An agent, on the other hand, 
 has usually all the knowledge requisite to support his 
 
 ' Houghton V. Matthews (1S03) 3 B. & P. 485; Baring v. Corrie 
 (1814) 2 B. & Aid. 137 ; Hammonds v. Barclay (1802) 2 East 227 : Re 
 Bowes (1886) 33 Ch. D. 586 ; Fisher v. Smith (1878) 4 App. Gas. 1. 
 
 ■^ Bock V. Gorrisscn (1861) 30 L.J. Ch. 39. 
 •^ See above cases. 
 
 ■• Taylor v. Kymer (1832) 3 B. & Ad. 320. 
 « Solly V. Raihbone (1814) 2 M. & S. 298. 
 
 ^ Sweet V. Pym (1800) ] East 4; N.W. Bank v. Poyntcr (1S95) AC. 
 56 ; Weeks v. Gooilc (1859) 6 C.B. N.S. 367.
 
 102 VENDORS AND PURCHASERS. 
 
 rights and requires no discovery.' Where, however, 
 the accounts between the principal and his agent are 
 of so complicated a nature that they cannot be satis- 
 factorilv disposed of in an action at law, the agent has 
 a right to have an account taken in a Court of Equity." 
 
 Section" 11 — Principals and Third Parties. 
 
 Acts of Agexts. — The principal is bound, as regards 
 third parties, by every act done by his agent where such 
 act is expressly authorised or is necessary for the proper 
 execution of the express authority,' or is incidental to 
 the ordinary course of the business conducted by the 
 agent on his principal's behalf, or falls within the 
 apparent scope of his authority ;* and he is likewise 
 bound where he has by words or conduct held out 
 another person or enabled such other person to hold 
 himself out as having authority to act on his behalf.^ 
 It is immaterial that the agent in doing such an act 
 was acting fraudulently in his own interests and not 
 in the interest of his principal.* But if an agent, in 
 the course of his employment, does an act which is 
 within the apparent scope of his authority, but is in 
 fact outside his real authority, the principal is not bound 
 by such an act if the third party has notice, actual or 
 constructive, that the asfent is exceeding his authority.^ 
 
 Dispositions of Property by Agents. — Dispositions 
 by an agent of property intrusted to him are not bind- 
 ing on the principal as a general rule if made without 
 his authority, and in case of such disposition the prin- 
 cipal is entitled to follow the property into the hands 
 
 > Padwick V. Hurst (1854) 18 Beav. 575 ; Padwick v. Stanley (1852) 
 9 Hare 627. 
 
 '^ Ibid. ; Harrington v. Churchward (1860) 29 L.J. Ch. 521. 
 
 •' Hamhro wBurnand (1904) 2 K.B. 10; Montaignac v. Shi fta {1890), 
 15 App. Gas. 357; Jacobs v. Morris (1902) 1 Ch. 816. 
 
 ■' Watteau v. Fcnwick (1893) 1 Q.B. 346 ; Howard v. Sheward (1866) 
 2 C.P. 148. 
 
 5 Re Bentley & Co. (1893)69L.T. 204; Levita's Case (1870) 5 Ch. 
 App. 489. 
 
 8 Hambro v. Burnand, supra. 
 
 ' Limpus V. G. O. Coy. (1862) 1 H. & C. 526; Nat. Bol. Nav. 
 Coy. V. Wilson (1880) 5 App. Gas. 176; Evans v. Kymer (1830) 1 
 B. & Ad. 528.
 
 CONTRACTS OF AGFNTS. 103 
 
 of third persons and recover the property or its value.' 
 If the principal has by his conduct allowed or enabled 
 his agent to appear as owner of the principal's pro- 
 perty, he is bound by any disposition of the property 
 by the agent as regards all persons acquiring such 
 property in good faith and for valuable consideration, 
 provided they had no notice of the principal's title and 
 believed the agent to be the owner." 
 
 DiSPOSITIOXS UNDER THE FACTORS ACT, 18S9. — At 
 
 common law, a person in possession of goods could not 
 in general give to another, by sale or pledge, a better 
 title to the goods than he himself had (nemo dat quod 
 non habet) ; and though a factor had a general 
 authority to sell, he had no such authority to pledge 
 goods, even for the amount of his lien.^ Now, by the 
 Factors Act, 1889, it is enacted that *' Where a mer- 
 cantile agent is, with the consent of the owner, in pos- 
 session of goods or of the documents of title to goods, 
 any sale, pledge or other disposition of the goods made 
 by him when acting in the ordinary course of business 
 of a mercantile agent, shall, subject to the provisions 
 of this Act, be as valid as if he were expressly authorised 
 by the owner of the goods to make the same, provided 
 that the person taking under the disposition acts in good 
 faith, and has not at the time of the disposition notice 
 that the person making the disposition has not authority 
 to make the same " ;' and " where a mercantile agent 
 has, with the consent of the owner, been in possession 
 of goods or of the documents of title to goods, any sale, 
 pledge or other disposition which would have been valid 
 if the consent had continued, shall be valid notwith- 
 standing the determination of the consent : provided 
 that the person taking under the disposition has not 
 at the time thereof notice that the consent has been 
 
 1 Farquharson Bros. & Co. v. King & Co. (1902) A.C. 325 ; 
 Pickering v. Busk (1812) 15 East 38 ; and see Sale of Goods Act, 
 1893, sects. 21, 22 and Part II., Chapter II., post, p, 149 et seq. 
 
 2 Callow V. Kelson (1862) 10 W.R. 193; Cooke v. Es/ieZfty (1SS7) 
 12 App. Cas. 271 ; Scholfield v. Londesboroiigh (1896) A.C. 514. 
 
 8 M'Couibie v. Davies (1805) 7 East 5. 
 
 ^ Sect. 2 (1).
 
 104 VENDORS AND PURCHASERS. 
 
 determined " ;' and " die consent of the owner shall be 
 presumed in the absence of evidence to the contrary."^ 
 Where A, the owner of goods, has given possession of 
 the goods to B for the purpose of consignment or sale, 
 or has shipped goods in B's name, and C, the consignee 
 of the goods, has not had notice that B is not the owner 
 of the goods, then C, in respect of advances made to A 
 for the use of B, has the same lien on the goods as if 
 B were the owner, and may transfer any such lien to 
 any other person.^ But this does not limit or affect 
 the validity of any sale, pledge or disposition by a mer- 
 cantile agent.' 
 
 Contracts of Agents. — Where an agent contracts 
 on behalf of a disclosed principal, the presumption is 
 that the principal and not the agent is the contracting 
 party.* But an agent may make a contract by which 
 he may become personally liable, w^hile he still makes 
 it on behalf of his principal, so that the other party has 
 a choice to go against either the one or the other ; that 
 is to say, the contract may be such as to make the 
 principal as well as the agent himself a party to the 
 contract.'^ In such a case, the third party mav elect 
 which to sue. If he proceeds against the agent, he 
 may not, if he proceeds to judgment, afterwards proceed 
 against the principal.^ An agent contracting on behalf 
 of a foreign principal is alone liable;^ and the right to 
 sue and be sued are correlative, so that a foreign prin- 
 cipal may not sue upon a contract made in this country 
 by an agent in his behalf.^ 
 
 If A sells goods to B, supposing B to be the principal, 
 but discovering afterwards that B is agent for C, he 
 
 ' Sect. 2 (2). 
 
 ''■ Sect. 2 (4) ; and see Wcincr v. Harris (1910) 1 K.B. 285 : Oppcn- 
 hcimcr v. Fraser (1907) 2 K.B. 50; Oppcnhcimcr v. Attcnborough 
 (1908) 1 K.B. 221. 
 
 •'' The Factor's Act, 1889, sect. 7 (1). ^ Ibid, sect. 7 (2). 
 
 ■'■' Thomson v. Davenport (1829) 9 B. & C. 78. 
 
 « Elbiuger Gesellschaft v. Clayc (1873) 8 Q.B. 318. 
 
 " Curtis V. Williaiiison (1S74) 10 Q.B. 59; Priestley v.Fernie (1865) 
 3 H. & C. 977. 
 
 " Thomson v. Davenport, supra ; Htitton v. Bullock (1874) 9 Q.B. 
 572. 
 
 ° Elbinger Gcssellschaft v. Clayc, supra.
 
 CONTRACTS OF AGENTS . 105 
 
 may recover the amount from C, though he may have 
 already debited B with the amount; subject to this 
 quaHlication, that the state of account between C and B 
 is not altered to the prejudice of C/ It is also a well- 
 established rule of law that where a contract not under 
 seal is made with an agent in his own name for an 
 undisclosed principal, either the agent or the principal 
 may sue upon it, the defendant in that case being 
 entitled to be placed in the same situation, at the time 
 of the disclosure of the real principal, as if the agent 
 had been the contracting party. This rule is most fre- 
 quently acted upon in sales by factors, agents or 
 partners, in which cases either the nominal or real 
 contractor may sue.^ In all cases the principal must 
 adopt the contract as made by his agent, though it 
 differ in terms from the authority given. ^ 
 
 Broker's Bought and Sold Notes. — Where a 
 broker contracts on behalf of the buyer and seller, an 
 entry of the transaction in his book, signed by him, 
 constitutes a memorandum of the contract so as to 
 satisfy the fourth section of the Sale of Goods Act, 
 1893,^ and a mistake in the bought and sold notes does 
 not affect the validity of such a contract.* And where 
 there is no signed entry, signed bought and sold notes 
 constitute a sufficient memorandum so as to satisfy the 
 statute,^ but not if there is a material variance between 
 them.'' 
 
 Effect of Particular Customs and Usages. — A 
 contract made in a particular market is deemed to be 
 made subject to the rules and regulations and the 
 customs and usages of that market so far as they are 
 not inconsistent with the express terms of the contract.^ 
 
 ^ Thomson v. Davenport (1829) 9B. & C. 86 ; Armstrong v. Stokes 
 (1872) 7 Q.B. 603. 
 
 - Sims V. Bond (1833) 5 B. & Ad. 393. 
 
 « Smethurst v. Taylor (1844) 15 M. & W. 545. 
 
 ' Thompson v. Gardiner (1876) 1 C.P.D. 777. 
 
 •"^ Siveivright v. -Archibald (1851) 20 L.J. Q.B. 529. 
 
 « Ibid ; Kempson v. Boyle (1865) 3 H. & C. 763. 
 
 ' Grant V. Fletcher (1826) 5 B. & C. 436; Thornton v. Kcmpstcr 
 (1814) 5 Taunt. 786 ; Gregson v. Ruck (1843) 4 Q.B. 737. 
 
 "* Hodgkinson v. Kelly (1868) L.R. 6 Eq. 496; Hayton v. Irxiin 
 {1879) 5 C.P.D. 130.
 
 106 VENDORS AND PURCHASERS. 
 
 But the principal is not bound by any unreasonable 
 rule or usage unless he had notice thereof and agreed 
 to be bound thereby when he authorised his agent to 
 make the contract/ 
 
 Effect of Misrepresentation or Fraud of Agent. 
 — A contract obtained for a principal by an agent by 
 means of fraud or misrepresentation is voidable against 
 the principal as if he had obtained it himself by the 
 same means, although the agent, to this extent, was 
 acting in the matter without the authority or knowledge 
 of the principal f and an action in damages will lie 
 against the principal in such a case.^ But the principal 
 is not liable for representations of his agent made 
 without authority and outside the scope of his employ- 
 ment.* And whether the agent is acting for and by the 
 authority of his principal or not, the agent is personally 
 liable for his own fraud.'' 
 
 Liability for Wrongs of Agent. — As a general 
 rule, the principal is answerable for every such wrong 
 of the agent as is committed in the course of his employ- 
 ment and within the scope of his authority, and whether 
 for the principal's benefit or not, though no express 
 command or privity of the principal is proved.® Where 
 the act is outside the scope of the agent's authority or 
 is committed by the agent for his own private ends, the 
 principal is not liable.'' 
 
 Section 12 — Agents and Third Parties. 
 
 Liability on Contracts. — The agent's liability, in 
 general, on contracts entered into by him has already 
 
 ^ Sweeting v. Pearce (1859) 7 C.B. N.S. 449; Pearson v. Scott (1878) 
 9 Ch. D. 198. 
 
 - Murray v. Mann (1848) 2 Ex. 540; Mullens v. Miller (1882) 22 Ch. 
 D. 194. 
 
 '■'■ Baruick v. English Joint Stock Bank- (1867) 2 Ex. 259. 
 
 ^ Coleman y. Riches (1885) 16 C.B. 104: Thome v. Heard (1895) 
 A.C. 495. 
 
 ■' Arnot \'. Briscoe (1748) 1 Ves. Sen. 95: Ciillen v. Thompsons 
 Trustees (1862) 4 Macq. H.L. 424. 
 
 '^ Baruick v. English Joint Stock Bank (1867) 2 Ex. 259 ; Smith v. 
 Keal (1882) 9 Q.B.D. 340; Lloyd v. Grace, Smith & Co. (1912) AC. 
 716. 
 
 ■^ Forsyth v. Manchester Corpn. (1912) 107 L.T. 600; N.E.Rlv v. 
 Reg. (1889) 6T.L.R. 15.
 
 I
 
 CONTRACTS OF AGENTS. 107 
 
 been discussed in connection with the principal's 
 liabiHty, and it is only necessary to add a few special 
 remarks here. 
 
 In contracts under seal, the parties liable are deter- 
 mined exclusively by the form of the instrument; it is 
 immaterial that an agent named therein as a party and 
 executing the document is described to be and acts as 
 agent for another who is named as his principal.' And 
 a simple contract in writing is subject to the same con- 
 struction, though it is not, like a deed, exclusive of the 
 rights and liabilities of the principal not named in the 
 contract.' Words merely describing a person as 
 " agent," " broker," or the like are not alone sufficient 
 to exempt him from personal liability ; it must appear 
 that he contracts "for" or ''on account of" a 
 principal and not on his own account.^ 
 
 Where goods are bought by a broker, charging him- 
 self as buyer in the bought and sold notes, both broker 
 and principal are presumptively liable, so that the seller 
 mav charge either.* And by usage of the trade, where 
 the contract purports to bind the principal only, as in 
 the case of broker's notes expressed in the terms bought 
 or sold '' for " or " on account of " a principal, the 
 broker may also be liable.^ Evidence of usage, how- 
 ever, is not admissible so as to discharge an agent from 
 personal liability where the agent has contracted in 
 writing so as to make himself personally liiible.*^ Where 
 the agent enters into a verbal contract which is not 
 reduced to writing, the question whether he contracted 
 personally or merely as agent is a question of fact ;' and 
 if he professes to act as agent, whether the contract is 
 merely verbal or is in writing, and it is shown that he 
 is in fact the principal, he is personally liable.* 
 
 1 Appleton V. Binks (1804) 3 East, 148. 
 
 ■^ Beckham v. Drake (1841) 9 M. & W. 79 : 11 M. & W. 315. 
 
 » Hutchinson \ . Eaton (1884) 13 Q.B.D. 861; Southwell v. Bozcditch 
 (1876) 1 C.P.D. 374 ; Gadd v. Houghton (1876) 1 Ex. D. 357 ; Pihe v. 
 Ongley (1887) 18 Q.B.D. 708 ; and see Lovcsey v. Palmer (191G) 2 Ch. 
 242. 
 
 * Mortimer v. McCallan (1840) 6 M. & W. 58. 
 
 5 Fleet V. Murton (1871) 7 Q.B. 126 ; Hutchinson v. Tatham (1873) 
 8 C.P. 482. 
 
 ^ Magee v. Atkinson (1837) 2 M. & W. 440. 
 
 ^ Lakeman v. Mountstephen (1874) 7 H.L. 17. 
 
 8 Carr v. Jackson (1852) 7 Ex. 382 : Adams v. Hall (1877) 37 L.T. 70.
 
 KIS \ ICNDUKS AND IHRCHA-SliRS. 
 
 Section 13 — Deter.mination of Agency. 
 
 By Agreement. — The relation of principal and agent 
 is founded on the mutual consent of the parties and 
 mav be determined b}' the same manner as that in which 
 it originated. 
 
 By Completion of the Transaction. — Where the 
 authority was given only for the purpose of a particular 
 transaction, the agency is determined on the completion 
 of that transaction. Thus, a broker's or auctioneer's 
 duties end with sale; they have no power afterwards 
 to alter the terms of the contract, except with the express 
 authority of their principals.' 
 
 By Expiration of Period. — It is obvious that if the 
 agencv was expressly fixed for a given period, it is 
 determined when that period elapses. 
 
 By Destruction of Subject-matter of Agency. — 
 Where two parties mutually agree, for a fixed period, 
 the one to employ the other as his sole agent in a 
 certain business, at a certain place, the other that he 
 will act in that business for no other principal at that 
 place, there is no implied condition that the business 
 itself shall continue to be carried on during the period 
 named. Thus, where A w-as, for a period of seven years, 
 to act as agent at a town L for the sale of coals on 
 behalf of a colliery owner B, and at the end of four 
 years B sold his colliery, A could not maintain an 
 action for damages against B. The agreement did not 
 bind B to keep his colliery.^ 
 
 By Certain Events.— It is sometimes agreed between 
 the parties that the happening of certain events shall 
 determine the agency. Apart from such agreement, it 
 may sometimes happen that an event occurs which 
 renders the continuance of the agency unlawful.^ 
 
 By Death, Lunacy, Bankruptcy of Principal or 
 Agent. — Subject to what is stated below as to irrevo- 
 cable authority, the authority of every agent, whether 
 by deed or not, is determined by the death, lunacy, 
 
 ' Blackburn v. Scholes (1810) 2 Camp. 343 ; Seton v. Slade (1802) 7 
 Ves. 265 ; Bell v. Balls (1897) 1 Ch. 663. 
 
 ■•= Rhodes V. Foruood (1876) 1 A.C. 256. 
 
 '■' Stevenson v. Aktiengcsellschaft f. C-I (1917) 1 K. B. 842.
 
 coxTUArrs of acma'ts. 1(IJ> 
 
 unsoundness of mind or bankruptcy of the principal or 
 agent, or by the dissolution of the corporation or com- 
 pany where such corporation or company is the prin- 
 cipal.' 
 
 By RiiX ocatiox. — As a general rule, the authority of 
 an agent, whether conferred by deed or not, is deter- 
 mined by the principal giving to the agent notice of 
 revocation at any time during the subsistence of the 
 agency, or by the agent giving to the principal notice 
 of renunciation.^ The right of either party to bring the 
 relation to an end by notice given to the other is a 
 term in the original contract of employment. The 
 principal's right to revoke is, however, affected by the 
 interests of third parties and of the agent. He may 
 not, for instance, privately limit or revoke an authority 
 which he has allowed his agent publicly to assume;' 
 third parties are entitled to treat the agency in such a 
 case as still subsisting. As affecting the agent, the 
 right of revocation may be expressly or impliedly 
 limited bv the liability of the principal to indemnify the 
 agent from loss occurring in consequence of the 
 employment. The rule that " an authority coupled 
 with an interest is irrevocable " means that where an 
 agreement is entered into on sufficient consideration, 
 wherebv an authority is given for the purpose of con- 
 ferring some benefit on the agent, such an authority is 
 irrevocable.* 
 
 ' See Minett v. Forester (1811) 4 Taunt. 541 ; Charnley v. Winstattley. 
 5 East. 266 ; Yongc v. Toyubcc (1910) 1 K. B. 215 : Salton v. New 
 Beeston Cycle Coy. (1900) 1 Cli. 43. 
 
 2 Freeman v. Faii-ltc (1838) 8 L.J. Cli. 44; Bovine v. Dent (1904) 
 21 T. L. R. 82; Alexander v. Davis (1885) 2 T. L. R. 142; Henry v. 
 Lowson, ibid, 199. 
 
 •' Debenham v. Mellon (1880) 5 Q. B. D. 394 ; 6 A. C. 24. 
 
 * Smart v. Sanders (1846) 5 C. B. 917; Carmichaels Case (1896) 
 2 Ch. 648 ; Read v. Anderson (1884) 13 Q. B. D. 779.
 
 CHAPTER VII. 
 
 THE ASSIGNMENT OF CONTRACTS. 
 
 Section 1 — In General. 
 
 As a general rule, as has already been stated/ a contract 
 cannot affect any but the parties to it. But, under 
 certain circumstances, the liabilities imposed or rights 
 acquired under a contract may be transferred to persons 
 other than the contracting parties, either by the volun- 
 tary act of the parties themselves, or of one of them, 
 or by the operation of rules of law. 
 
 Section 2 — Assignment by Act of Parties. 
 
 Assignment of Liabilities. — As a general rule, a 
 party to a contract cannot assign his liability thereunder 
 without the other partv's consent; the one party has a 
 right to object to the contract being performed by any 
 person other than the other he contracts with,' and a 
 right to the benefit he contemplates from the character, 
 credit, and substance of that other party .^ This rule 
 applies both at law and in equity,^ and is unaffected 
 by statute.* But there are certain limitations to it, as 
 where the liability assigned is not concerned with the 
 skill, character, credit, or other personal qualifications 
 of the assignor,* or where liabilities attaching to the 
 enjoyment of land or of an interest in land pass with the 
 land.^ And even in these excepted cases, the assign- 
 ment of the liability without the consent of the other 
 contracting party does not discharge the assignor from 
 performance, but gives the other an option to look to 
 
 ' See ante p. 9. 
 
 2 Rohson V. Drummond (1831) 2 B. & Ad. 303, 307. 
 
 •* Humble v. Hunter (1848) 12 Q.B. 310, 317 ; and see Johnson v. 
 Raylton (1881) 7 Q.B.D. 438. 
 
 ■• Tolhurst V. Assoc. Portland Cement Manufacturers (1902) 2 KB. 
 660, 668, 677; (1903) A.C. 414. 
 
 5 Sec post, pp. 111-114. 
 
 « British Wagon Coy. v. Lea (1880) 5 Q.B.D. 149. 
 
 ' S&epost, p. 117.
 
 THE ASSIGNMENT OF CONTRACTS. Ill 
 
 either the assignor or assignee for performance of the 
 contract.' A transfer of liability with the other party's 
 consent is in effect the rescission of one contract and 
 the substitution of a new one, in which the same acts 
 are to be performed by different parties, and is thus, 
 strictly speaking, not an assignment at all. 
 
 Assignment of Rights at Common Law. — At 
 common law, apart from the customs of the law mer- 
 chant, the benefit of a contract, or of rights of acti(jn 
 arising from contract, cannot be assigned so as to enable 
 the assignee to sue upon it in his own name, except 
 with the consent of the other contracting party." 
 
 Assignment of Rights in Equity. — In equity an 
 assignment of rights under a contract was regarded as 
 implying authority to the assignee to use the assignor's 
 name for the enforcement of those rights, and the Court 
 would compel the assignor to allow his name to be used 
 for that purpose upon receiving an indemnity against 
 costs,^ and would restrain him from suing for his own 
 benefit.* 
 
 Effect of Judicature Act, 1873. — By Section 25 (6) 
 of the Judicature Act, 1873, " any absolute assignment 
 by writing under the hand of the assignor (not purport- 
 ing to be by w^ay of charge only) of any debt or other 
 legal chose in action {i.e., a right which can only be 
 claimed or enforced by action and not by taking physical 
 possession*) of which express notice in writing" shall 
 have been given to the debtor, trustee, or other person 
 from whom the assignor would have been entitled to 
 receive or claim such debt or chose in action, shall be 
 
 ' British Wagon Coy. v. Lea, supra. 
 
 - See Jones v. Carter (1845) 8 Q.B. 134; Boiilton v. Jones (1857). 
 H. & N. 564; Schiiialing v. Thomlinson (1815) G Taunt. 147: 
 Master v. Miller (1791) 4 Term Rep. 320. 
 
 •■^ SeeTorkington v. Magee (1902) 2 K.B. 427. 432 ; (1903) 1 K.B. 644; 
 Crouch V. Credit Fonder (1873) 8 Q.B. 374 ; De Pothonicr v. De Mattos 
 (1858) E.B. & E. 467; Hammond v. Messenger {1818) 9 Sim. 327: 
 Hoskins V. Holland (1875) 44 L.J. Ch. 273 ; Roxburghe v. Cox (1881) 
 17 Ch. D. 520. 
 
 ^ Jeffs V. Day (1866) 1 Q.B. 372 ; and see, generally, Row v. Dawson 
 (1749) 1 Ves. Sen. 331 ; Addison v. Cox (1872) 8 Ch. 76. 
 
 * See Torkington v. Magee (1902) 2 K.B. 430. 
 
 6 See Denny v. Conklin (1913) 3 KB. 177.
 
 II'.? \-KNT>ORS AN'P PIRCHASERS. 
 
 and be dceaied to have been effectual in law ysabject 
 to all equities which would have been entitled to priority 
 over the right of the assignee it this Act had not been 
 passed) to pav and transfer the legal right to such debt 
 or chose in action from the date of such notice, and all 
 legal and other remedies for the same and the power 
 to give a good discharge for the s^me without the con- 
 currence of the assignor. 
 
 A legal assignment may thus be made of any legal 
 chose in action, and the assignee may sue in his own 
 name to recover it if the prop>er requisites are fulfilled. 
 These are : (a) the assignment must be absolute and not 
 bv wav of charge only.^ i.e., it must not be subject to 
 any condition,* and it must be an assignment of a 
 sum due or about to become due. not of an amount to 
 be determined by the state of accounts between the 
 assignor and assignee:^ (b) the assignment must be in 
 writing signed by the assignor ; it need not be by deed ; 
 (c) express notice in writing must be given to the 
 debtor, and the title of the assignee dates from such 
 notice. 
 
 Choses in* Action Within the Judicatl"re Act. 
 1873. — It is only legal choses in action which come 
 within the Act; equitable choses in action are assign- 
 able as before. The expression has been held to include 
 a debt, which must be a definite sum.* but may be a 
 specified sum not yet payable, e.g., instalments of 
 purchase-money of furniture^' or of a ship ;* a claim 
 under Section 68 of the Lands Clauses Consolidation 
 Act. 184-5. to compensation in respect of lands injuri- 
 ously afiected by a railway company acting under its 
 stattitor}- powers ;* the benefit of a contract to supply 
 goods of a particular kindr the benefit of a contract 
 
 ' Tancred v. Delagoa Bay Coy. (1539) 13, Q.B.D. 255 
 
 - Durham Bros. v. Robertson (139SI I Q.B. 765 ; and see Hughes v. 
 Pump Hous< Hotel Coy. (1902) 2 K.B. 195. 
 
 ' Durham Bros. v. Robertson, supra. 
 
 ' Jones V. Humphries (1902) 1 K.B. 10. 
 
 ' Ibid . Re Davis & Co. (1838) 22 Q.B.D. 193. 
 
 8 Brice v. Bannister (1378) 3 Q.B.D. 569. 
 
 ' Daarson v. Gt Northern and City Rly. Coy. (1905) 1 KB. 260. 
 
 * Tolhurst V. Assoc. Portland Cement Mfrs. (1903) AC. 414; but 
 see Kemp v. Baerselman (1906) 2 K.B. 604.
 
 THi: ASSIGNMENT OF CONTRACTS. 113 
 
 for the purchase of a reversionary interest. ' But the 
 expression does not include the ri<^ht to sue for damages 
 for a breach of contract already coniniittedr coniracis 
 involving special personal qualifications on the part of 
 the person claiming performance.^ 
 
 An assignment which does not comply with the 
 requirements of the Act is not necessarily ineffectual, 
 for it may operate as an equitable assignment. But it 
 is important to note that whereas if the assignment 
 complies with the Act the assignee can maintain an 
 action in his own name without joining the assignor 
 as a party thereto, if the assignment is equitable only, 
 the assignor must be joined as a party, either as plain- 
 titt if he consents, or as defendant if he does not consent. 
 
 Form of Assignment. — To constitute a legal assign- 
 ment within the Act, no particular form is required;'' 
 a direction^ or order*^ in writing under the hand of the 
 assignor to the debtor to pay the assignee is sufficient, 
 and it must be stamped as a conveyance. In the case 
 of equitable assignments, the mode or form is imma- 
 terial provided the intention of the parties is clear. ^ It 
 may be verbaF unless, in the particular case, writing 
 is required by law, as where interests in land are 
 assigned.^ It may be addressed either to the debtor 
 or to the assignee,^" and where in writing it should be 
 stamped as a conveyance or mortgage, as the case may 
 be, even if it is in form an order for the payment of 
 money." 
 
 ^ Torkington v. Magee (1902) 2 K.B. 427 ; and see Ogdens, Ltd. v. 
 Weinberg (1906) 95 L.t. 567. 
 
 - May V. Lane (1894) 64 L.J. Q.B. 236; cf. Ogdens v. Weinberg, 
 supra. 
 
 •' Tolhurst V. Assoc. Portland Cement Mfrs., supra ; Kemp v. 
 Baerselman, supra. 
 
 "• Except where a special form is required by statute in certain cases. 
 
 5 Harding v. Harding (1886) 17 Q.B.D. 442. 
 
 6 Brice v. Bannister (1878) 3 Q.B.D. 569. 
 
 ' Tailby v. Official Receiver (1888) 13 App. Cas. 523. 
 « Riccard v. Pritchard (1855) 1 K. & J. 277; Brown, Shipley & Co. 
 V. Kough (1885) 29 Ch. D. 848. 
 
 9 Re Whitting (1878) 10 Ch. D. 615. 
 
 10 Brandt's Sons & Co. v. Dunlop Rubber Coy. (1905) A.C. 454. 
 
 " Diplock V. Hammond (1854) 5 De G. M. & G. 320 ; Buck v. Robson 
 (1878) 3 Q.B.D. 686.
 
 114 XENDORS AND PURCHASERS. ^ 
 
 Notice of Assignment. — In order that the assignee 
 may obtain the benefit of Section 25 (6) of the Judica- 
 ture Act, 1873, express notice in writing of the assign- 
 ment must be given to the debtor, trustee, or other 
 person from whom the assignor would have been 
 entitled to receive or claim the debt or chose in action ; 
 and the assignment only operates in such a case from 
 the date of such notice. No limit of time is prescribed 
 within which the notice must be given,' so that a notice 
 given after the death of the assignor or assignee is 
 effectual.^ Notice by the person in whom the equitable 
 right is for the time being vested is sufficient.'' In the 
 case of equitable assignments, whether voluntary or for 
 value, no notice to the debtor is necessary,* for notice 
 does not make the title perfect;" but in order to make 
 the assignee's title effective against the debtor and 
 third parties, notice of the assignment must be given 
 to the debtor.* An informal notice is sufficient, pro- 
 vided the fact of the assignment is definitely brought 
 to the mind of the debtor.^ 
 
 Priority of Notice. — Where A assigns his rights to 
 B, C and D respectively at different dates and in the 
 order given, the rule is that B, C and D are entitled 
 to be paid in the order in which they give notice to the 
 debtor, except that if, for instance, C or D had actual 
 or constructive notice of the previous assignment to B, 
 he cannot gain priority over B by being the first to 
 give notice.** This is called the rule in Dearie v. Hall,^ 
 and is an absolute rule, independent of the conduct of 
 
 1 See Bateman v. Hunt (1904) 2 K.B. 530. 
 
 •^ Ibid ; Walker v. Bradford Old Bank (1884) 12 Q.B.D. 511 ; Dibh 
 V. Walker (1893) 2 Ch. 429. 
 
 •^ Ibid. 
 
 ■* Burn V. Carvalho (1839) 4 My. & Cr. 702 ; Brandt's Sons & Co. v. 
 Dunlop Rubber Coy. (1905) A.C. 454. 
 
 « Ward V. Buncombe (1893) A.C. 369. 
 
 « Ryall V. Rowlcs (1749) 1 Ves. Sen. 348 ; Dearie v. Hall (1823) 3 
 Russ. 1 ; cf. Webb v. Smith (1885) 30 Ch. D. 192 ; Kelly v. Selwyn 
 (1905) 2 Ch. 117. 
 
 ' Lloyd V. Bankes (1868) 3 Ch. App. 488 ; Nezviuan v. Neivman 
 (1885) 28 Ch. D. 674. 
 
 '' See Re Holmes (1885) 29 Ch. D. 786 ; Spencer v. Clarke (1878) 9 Ch. 
 D. 137 ; Re Ind, Coope & Co. (1911) 2 Ch. 223. 
 
 9 (1823) 3 Russ. ] .
 
 THE ASSIGNMENT OF CONTRACTS. 115 
 
 a prior assignee. Bui this principle does not apply to 
 equitable interests in land/ but it does apply to such 
 interests in land as can only reach the assignor in the 
 shape of money, e.g., proceeds of sale of real estate." 
 
 Title.—" The general rule, both at law and in 
 equity, is that no person can acquire title to a chose 
 in action or any other property from one who has him- 
 self no title to it." In other words, the assignee takes 
 the chose in action subject to all the equities affecting 
 it in the hands of the assignor/ and this rule has been 
 embodied in Section 25 (6) of the Judicature Act, 1873.* 
 If, then, the contract under which the debt arose is 
 voidable by reason of the assignor's fraud, the debtor 
 may set up the fraud in answer to an action brought 
 by the assignee, even though the assignee gave value 
 tor the assignment/ but if the debtor for any reason 
 is not in a position to avoid the contract, he cannot, 
 when sued by the assignee, set up in answer a claim 
 for damage caused by the assignor's fraud.* Upon the 
 same principle the debtor has the same rights of set-off 
 against the assignee as against the assignor.^ But 
 " after notice of assignment of a chose in action, the 
 debtor cannot, by payment or otherwise, do anything 
 to take away or diminish the rights of the assignee as 
 they stood at the time of the notice."* 
 
 Section 3 — Assignment by Operation of Law. 
 
 In General. — The • rights and liabilities of either 
 contracting party may, under certain circumstances, be 
 assigned by operation of law when such party dies, or 
 
 ' Hopkins V. Hcmsworth (1898) 2 Ch. 347; Re Richards (1890) 45 
 Ch. D. 589 ; Ward v. Diincombe (1893) A.C. 369. 
 
 -' Llovd's Bank v. Pearson (1901)' 1 Ch. 865; White v. Ellis (1892) 
 1 Ch. 188; Greshani Assoc. Coy. v. Crowther (1914) 2 Ch. 219; (1914) 
 W.N. 448. 
 
 •' Roxburghc v. Cox (1881) 17 Ch. D. 520; Crouch v. Credit Fonder 
 (1873) 8 Q.B. 380; Mangles v. Dixon (1852) 3 H.L.C. 735. 
 
 ' See ante p. 111. 
 
 "' Turton v. Benson (1718) 1 I'. Wmr. 496; Graham v. Johnson 
 (1869) 8 Eq. 36. 
 " Stoddart v. Union Trust, Ltd. (1912) 1 K.B. 181. 
 ' Re Knapman (1881) 18 Ch. D.*300 ; Re Jones (1897) 2 Ch. 190. 
 '^ Roxhiirghe v. Cox, supra.
 
 116 VENDORS AND PURCHASERS. 
 
 becomes bankrupt, or (in the case of a woman) marries. 
 In the case of contracts relating to land, certain rights 
 and liabilities are also in certain cases assigned by 
 operation of law upon the transfer of land or of the 
 reversion thereof. 
 
 Effect of Death. — If in any case the contract is one 
 which has relation to the personal conduct, skill, or 
 qualifications of a contracting party, as in the case of a 
 principal and agent, then the death of that party puts 
 an end to the contract, and no rights or liabilities there- 
 under in respect of future performance pass to his 
 representatives.' But these representatives are entitled 
 to sue for any money actually earned by the deceased 
 under the. contract and accrued due during his lifetime," 
 or even for remuneration accruing due after his death 
 if it appears to have been the intention of the parties 
 that remuneration should continue payable after the 
 termination of the contract.^ If the contract is not of a 
 personal nature, and is executory, the personal repre- 
 sentative may complete it and demand the price,* or, 
 conversely, mav be sued on the contract.^ And where 
 a party assigns his rights in equity during his life, his 
 personal representatives continue to represent him for 
 the purpose of joining or being joined with the assignee 
 in suing the debtor. * 
 
 Effect of Bankruptcy. — In the case of a personal 
 contract, the rights and liabilities of a bankrupt con- 
 tracting party do not in general pass to his trustee in 
 bankruptcy, though in certain cases the trustee may 
 recover damages for breach of such a contract. In other 
 cases the bankrupt's rights and liabilities devolve on 
 his trustee, subject to the latter's right to disclaim 
 onerous contracts.^ 
 
 ' Phillips V. Alhambra Palace Coy. (1901) 1 K.B. 63; Farrow v. 
 Wilson (1869) 4 C.P. 744 ; Tasker v. Shepherd (1861) 6 H. & N. 575 ; 
 Robson V. Drummond (1831) 2 B. & Ad. 303- 
 
 2 Stubhs V. Holywell Rly. Coy. (1867) 2 Exch. 311. 
 
 2 Wilson V, Harper (1908) 2 Ch. 373. 
 
 ^ Marshall v. Broadhurst (1831) 1 Cr. & J. 403. 
 
 5 Wentworth v. Cock (1839) 10 A. & E. 42 ; Cooper v. Jarman (1866) 
 3 Eq. 98. 
 
 ^ Brandt v. Heafig (1818) 2 Moo. C.P. 184. 
 
 ' See Bankruptcy Act, 1914, Sects. 51, 54.
 
 THE ASSIGNMENT OF CONTRACTS. 117 
 
 Covenants which Run with the Land. — On an 
 assignment of land or of an interest in land, the burden 
 or benefit of certain covenants passes by operation of 
 law to the assignee. The conditions under which the 
 benefit or burden passes are discussed in a later part of 
 this book.' 
 
 See Part IH.. Chapter IV., pp. 329-331, post.
 
 PART II. 
 THE SALE OF GOODS ACT, 1893. 
 
 (56 & 57 Vict. c. 71.) 
 
 CHAPTER I. 
 FORMATION OF THE COXTRACT. 
 
 Section 1 — Introductory. 
 
 The Act in General. — The Act is called " .Vn Act tor 
 codifying the law reUiting to the sale of goods." It 
 deals, however, only with those rules of law peculiar to 
 the law of sale, so that the rules of the common law, 
 including the law merchant, save in so far as they are 
 inconsistent with the express provisions of the Act, and 
 in particular the rules relating to the law of principal 
 and agent, and the effect of fraud, misrepresentation, 
 duress or coercion, mistake or other invalidating cause, 
 continue to apply to contracts for the sale of goods.' 
 Moreover, the Act relates onh- to contracts for the sale 
 of goods as therein defined," and has no application to 
 any transaction which is intended to operate by way of 
 mortgage, pledge, charge, or other security." 
 
 Contract oe Sale. — The Act defines a contract of 
 sale as " a contract whereby the seller transfers or 
 agrees to transfer the property in goods to the buyer 
 for a money con.sideration, called the price."* It may 
 
 ' See Sect. 61 and Part I. ante generally. 
 
 - See Part L, Chapter IV., Sect. 1. ante. p. 42. and infra. 
 
 ■■ Ibid., Chapter L, Sect- 2, ante, pp. 4-8. 
 
 ^ See the Act, Sect. 1 (1). Appendix B, iv. post. "Sale" includes a 
 bargain and sale as well as a sale and delivery; "Seller" means a 
 person who sells or agrees to sell goods; "Buyer" means a person 
 who buys or agrees to buy goods; "Property" means the general 
 property in goods, and not merely a special property (see Part I., 
 Chapter I., Sect. 1 ante, p 3) ; see the Act, sect. 62 (l). Appendix 
 B, i\-., post.
 
 120 VENDORS AND PUKCH.ASERS. 
 
 be a contract between one part owner and another/ as 
 where the purchaser is a partner in the vendor's firm;" 
 and may be absolute or conditional/ 
 
 Sale and Agreement to Sell. — Where under the 
 contract of 5ale the property is transferred from the 
 seller to the buyer, the contract is called a " sale," but 
 where the transfer of the property in the goods is to 
 take place at a future time or subject to some condition 
 thereafter to be fulfilled, the contract is called an 
 " agreement to sell."* An agreement to sell becomes 
 a sale when the time elapses, or the conditions are ful- 
 filled, subject to which the property in the goods is to 
 be transferred.* 
 
 Capacity of Parties. — Capacity to buy and sell is 
 regulated by the general law concerning capacity to 
 contract and to transfer and acquire property. Pro- 
 vided that where necessaries are sold and delivered to 
 an infant or a minor, or to a person who by reason of 
 mental incapacity or drunkenness is incompetent to 
 contract, he must pay a reasonable price therefor. 
 Necessaries in this section means goods suitable to the 
 condition of life of such infant or minor or other person 
 and to his actual requirements at the time of the sale 
 and delivery.* 
 
 Section 2 — Formalities of the Contract. 
 
 General Rule. — Subject to the provisions of the 
 Act,' and of any statute in that behalf,^ a contract of 
 sale may be made in writing (either with or without 
 seal), or by word of mouth, or partly in writing and 
 partly by word of mouth, or may be implied from the 
 
 ' Sect. 1 (1) ; Bead v. Blandford (1828) 2 Y. & J. 278 ; Nicol v. 
 Hennessey (1896) 1 Cora. Cas. 410. 
 
 - Ex parte Cooper (1879) 11 Ch. D. 68. 
 
 ^ Sect. 1 (2) ; and see pp. 131-1 39 ^os^ 
 
 •• Sect. 1 (3) ; and see the effect of this distinction, Part I.. Chapter I., 
 Sect. 1 ante, p. 1 . 
 
 * Sect. 1 (4) ; and see pp. 143-147 /)0s^. 
 
 ® Sect. 2 ; and see, generally, Part I., Chapter II., ante, pp. 10-21. 
 
 ■^ See the Act, Sects. 4 and 61 (3). 
 
 " Seec.4<. the Merchant Shipping Act. 1894, Sects. 24, 26, 65.
 
 J'OR.AIATION OF THK CONTRACT. 121 
 
 conduct of the parties.' Thus, a wrhlen offer to sell 
 goods may be accepted verbally, or a verbal offer may 
 be accepted in writing;^ a written order may be accepted 
 by supplying the goods without furtiier communica- 
 tion f a written offer with subsequent verbal alterations 
 may be accepted by supplying the goods accordingly.* 
 A contract may be implied where a person takes up a 
 book from a bookstall and pays for it or otherwise 
 appropriates it with the owner's consent ;* or where two 
 parties act upon an unsigned agreement for sale accord- 
 ing to its terms;® or where a person retains goods differ- 
 ing in quantity for the quantity ordered.^ 
 
 QuASi-CoNTRACTs OF Sale. — The Sale of Goods Act, 
 1893, deals only with contracts of sale, properly so- 
 called. But it is necessary to note transiictions to 
 which, independently of any expression of the will or 
 intention of the parties, the law annexes consequences 
 similar to those which result from a sale. Such transac- 
 tions are usually termed " quasi-conircWis of sale." 
 Thus, where the purchaser is sued for the price of goods 
 and he consents to judgment, the transaction amounts 
 to a sale of the goods as from the time of the judgment.* 
 And where A is induced by C to sell goods to an insol- 
 vent purchaser B, and then C obtains the goods for his 
 own benefit from B, A has been held entitled to recover 
 against C Again, where goods have been wrongfully 
 taken, converted or detained, and the owner has brought 
 an action for trespass, trover, conversion, or detinue, 
 upon his recovering damages, the property in the goods 
 passes in certain cases by operation of law to the defen- 
 dant, the question whether the property does or does 
 
 ' Sect. 3 ; the law affecting corporations is expressly excepted from the 
 operation of this section. 
 
 - See Waikins v. Rymill (188;,) 10 Q.B.D. 178, 188. 
 
 ■^ Taylor V. Jones (1875) 1 C.P.D. 87. 
 
 •• Hoadly V. M'Laine (1834) 10 Bing. 482. 
 
 ■' See Blackstone: Comm. Bk. 2, c. 30. 
 
 « Brogdcn v. Metrop. Rly. Coy. (1877) 2 App. Cas. 666. 
 
 • Hart V. Mills (1846) 15 M. & W. 85 ; Oxendalc v. Wcthcrcll (1829) 
 9 B. & C. 386; Richardson v. Dunn (1841) 2 Q.B. 222. 
 
 ^^ Bradley & Cohn v. Ramsay (1912) 106 L.T. 771. 
 " Hill V. Perrott (ISIO) 3 Taunt. 274 ; Biddle v. Levy (1815) 1 Stark 
 20.
 
 122 VENDORS AND PURCHASERS. 
 
 not pass depending- upon the nature of the damages 
 recovered/ 
 
 In'terpri:tatio.\ of CoxNTracts. — Where the contract 
 has been reduced into writing, it must be construed and 
 given effect to Hke any other written contract.^ In all 
 contracts within the Act, whether verbal or written, 
 where any rig'ht, duty, or liability would arise under the 
 contract by implication of law, it may be negatived or 
 varied by express jigreement or by the course of dealing 
 between the parties, or by usage, if the usage be such 
 as to bind both parties to the contract/ 
 
 Contracts of Sale for £10 and Upwards. — A con- 
 tract for the sale of anv goods of the value of ten pounds 
 or upwards is not enforceable by action* unless the 
 buyer (a) accepts-part of the goods so sold and actually 
 receives the same, or (b) gives something in earnest to 
 Bind the contract, or in part payment, or (c) unless 
 some note or memorandum" in writing of the contract is 
 made and signed by the party to be charged or his 
 agent in that behalf/ This provision applies to every 
 such contract, notwithstanding that the goods may be 
 intended to be delivered at some future time, or may 
 not at the time of the contract be actually made, pro- 
 cured, or provided or fit or be ready for delivery, or 
 that some act may be requisite for the making or com- 
 pleting the goods, or rendering them fit or readv for 
 delivery.' 
 
 A contract within the meaning of the above provision 
 includes :* (a) an entire contract (e.g., where the price 
 
 ' Adams v. Broiigliton (1737) Andr. 18; Cooper v. Shepherd (1846) 
 3 C.B. 266; Marston v. Phillips (1863) 9 L.T. 289; Brinsviead v. 
 Harrison (1871) 6 C.P. 584 ; Ex parte Drake (1877) 5 Ch. D. 866. 
 
 - Sev; Coddington v. Paleolngo (1867) 2 Exch. 193. 
 
 ■' Sae the Act. Sect. 55. 
 
 * " Action " includes counterclaim and set-off: Sect. 62 (1) ; see North 
 V. Loonies (1919) 1 Ch. 378. 
 
 •'' See Part I., Chapter IV., ante, pp. 44-56. 
 
 ^ Sect. 4 (1) ; as to the distinction between a contract of sale within 
 this section and cognate transactions, see Part I., Chapter I. ante, pp. 
 4-8; and as to what are "goods" within this section, see Part I., 
 Chapter IV. ante, pp. 42-44 
 
 " Sect. 4 (2). 
 
 *" See Law Quarterly Review, vol I., p. 11, article by Stephen, J., 
 and Professor Pollock.
 
 for.mahon of THI-; C()NTi<\(T. i2»'5 
 
 is a lump sum or wlicic^ the iliin_<;s arc conlractcd tor 
 at tlie same time, or arc itKiuded in one ^iccount) for 
 the sale of g'oods, and for other objects, where the 
 goods are of the viUue of £10 or upwards;' (/>) an entire 
 contract for the sale of <^oods of imascertained xalue at 
 the date of the contract, which are afterwards ascer- 
 tained to be of the value of £10 or upwards;" (c) an 
 entire contract for the Siile of a t^uantity of goods, 
 whether all are in existence or not, each being under 
 the value of i'lO. but collectively of the value of £10 
 or upwards." 
 
 AcCKPTAXCF. — Tiiere is an acceptance of goods within 
 the meaning of the aijove provision, when the i)U}er 
 does anv act in relation to the goods which recognises 
 a pre-existing contract of sale, whether there be an 
 acceptance in performance oi the contract or not.' 
 Thus, it is necessary to distinguish between " accept- 
 ance " as here defined, which is merel)' a recognition 
 of the existence of the contract, and a final acceptance 
 in performance of the contract. A provisional accept- 
 ance of this kind, together with actual receipt of the 
 goods, operates merely as a waiver of written evidence 
 of the contract, allowing the contract to be established 
 bv parol evidence." It must be an acceptance which 
 could not have been made except as an admission of 
 the existence of a contract, and that the goods were 
 sent in performance of that contract.* It must be clear 
 and unequivocal, and may precede or be contempora- 
 neous with actual receipt.' Whether the acts done in 
 relation to the goods constitute an acceptance or an 
 actual receipt is a question of fact." 
 
 ' See Asfey v. Emery (1813) 4 M. & S 262 ; Huniuin \. Rccvc (1856) 
 18 C.B. 587 ; Head v. Baldrcy (1837) 6 A. & i:. 459. 
 
 ■' Watts V. Friend (1830) 10 B. & C. 446. 
 
 ' Baldey v. Parker {\S2Z) 2 B. & C. 37; Elliott %■. Thomas (1838) 
 3 M. & W. 170 ; Scott v. Eastern Counties Rty. Coy. (1843) 12 M. & W. 
 33 ; Bigg V. Whisking (1853) 14 C.B. 195. 
 
 ' Sect. 4 (3). 
 
 • Morton v. Tihbetf (1850) 15 Q.13. 428, 433. 
 
 " Page V. Morgan (1885) 15 Q.B.D. 22S. per Brett MR 
 
 ^ Ciisack V. Robinson (1861) 1 B. & S. 299. 
 
 " Edan V. Diidfield (1841) 1 Q.B. 302.
 
 124 \ KNDORS AND PURCHASERS, 
 
 Thus, an acceptance takes place : where the buyer 
 examines the goods/ or takes a sample thereof in cir- 
 cumstances showing that he is doing so to see whether 
 the goods are in accordance with a contract of sale to 
 him;' or where goods are sent with a delivery note 
 which the buyer receives and keeps, though he rejects 
 the goods/ or where the buyer deals with the goods 
 as owner, as where he resells or attempts to resell the 
 whole or part of the goods whether before or after 
 actual receipt by him / or where the buyer of a horse 
 takes a third person to the seller's stable and offers to 
 resell the horse to the third person f or where the buyer 
 of a carriage having ordered certain alterations to be 
 made sends for the carriage and takes a drive / or 
 where the buyer does some act with the hill of lading, 
 which represents the goods/ or where the buyer 
 marks the goods as being goods to be delivered under 
 a contract of sale/ or where the goods being at the 
 time of the contract in the buyer's possession as the 
 seller's bailee, the buyer acts in relation thereto in a 
 manner inconsistent with the continuance of his pos- 
 session as bailee so as to show that he has taken the 
 goods as owner.** A mere rejection of goods is not 
 inconsistent with other acts by the buyer in admission 
 of a contract of sale, constituting an acceptance." 
 
 Actual Receipt. — There is an actual receipt of the 
 goods when the buyer, with the consent of the seller, 
 assumes, by himself or his agent, control of the goods. 
 Thus, there is an actual receipt : where the buyer agrees 
 
 J Abbott V. Wolscy (1895) 2 Q.B. 97. 
 
 2 Ibid. 
 
 ■^ Taylor v. The Gt. Eastern Rly. (1901) 1 K.B. 774; Parker v. 
 Wallis (1855) 5 E. & B. 21 ; Chaplin v. Rogers (1801) 1 East 192 ; 
 Marshall V. Green (1875) 1 C.P.D. 35; Morton w'Tibbctt (1850) 15 
 Q.B. 428. 
 
 ■• Blenkinsop v. Clayton (1817) 7 Taunt. 597. 
 
 '' Beaumont v. Brengeri (1847) 5 C.B. 301. 
 
 '• Currie v. Anderson (i860) 29 L.J. Q.B. 87. 
 
 ''Billv.Bament (1841) 9 M. & W. 36; Baldey v. Parker (1823) 2 
 B. & C. 37. 
 
 " Edan V. Diidficld (1841) 1 Q.B. 302 ; Lillywhite v. Deverenx (1846) 
 15 M. &. W. 285. 
 
 *■' Kibble V. Goitgh (1878) 38 L.T. 204.
 
 FOmiATIOX OF IHl-; CONTRACT. 12-5 
 
 to bii\' and afterwards sells goods he j^reviously held 
 as the seller's a^ei'ent;' or where goods are at the time 
 of sale in the possession of a third person, c.}^., an 
 agent, a warehouseman, a wharfinger, or carrier, and 
 the seller, the buyer, and the third person agree together 
 that the third person shall cease to hold the goods for 
 the seller and shall hold them for the buyer ;" or where 
 a bill of lading, as being in the truest sense a symbol 
 of the goods, is transferred from the seller to the buN-er;"* 
 or where the buyer of timiber, growing on land in the 
 possession of the seller's tenant, cuts down some of 
 the trees and agrees to sell the tops and stumps to a 
 third person ;^ or where goods are delivered by the 
 seller to a common carrier or to one specially designated 
 bv the buyer for conveyance to him or to a place named 
 bv him f or where the seller agrees that he shall cease 
 to hold the goods as owner and shall hold them as 
 agent or bailee of the buyer ;'^ or where the seller does 
 some act in relation to the goods sold, though they 
 remain in his possession, which is, in fact, an abandon- 
 ment of his lien ;'' or even where the goods are in the 
 custody of the sheriff on the seller's premises.* 
 
 Earnest and Part Payment. — The terms " earnest " 
 and " part payment " are sometimes treated as synony- 
 mous ; but whereas earnest is something given to bind 
 
 ' Edan V. Diidfield (1841) 1 Q.B. 302 ; Taylor v. Wakefield (1856) 
 6 E. & B. 765; and see Lillvwhitc v. Devercitx (1846) 15 M. & W. 
 285. 
 
 - See Blackburn on Sale, 28 ; Farina v. Home (1846) 16 M. & W. 
 119 ; Bentall v. Burn (1824) 3 B. & C. 423. 
 
 •' Sanders v. MacLean (1883) 11 Q.B.D. 341 ; and see Godts v. Rose 
 (1855) 17 C.B. 229. 
 
 ' Marshall v. Green (1875) 1 C.P.D. 35 ; Tanslcy v. Turner (1835) 2 
 Bing. N.C. 151 ; Cooper v. Bill (1865) 3 H. & C. 722. 
 
 ^ Dawes v. Peck (1799) 8 T.R. 330; Wait v. Baker (1848) 2 Ex. 1 ; 
 Diinlop V. Lambert (1838) 6 Ch. & F. 600 ; Johnson v. Dodt^son (1837) 
 2 M. & W. 653. The carrier, in such cases, is, in contemplation of law. 
 the bailee of the person to whom, not /;v whom, the goods are sent, and 
 he only represents the buyer for the purpose of receivinti. not acceptini<. 
 the goods: see Hanson v. Armitage (1822) 5 B. & Aid. 557 ; Hunt v. 
 Hecht (1853) 8 Ex. 814 ; Meredith v. Mey (1853) 2 E. & B. 364 ; Hart 
 V. Bush (1858) E. B. & E. 494 ; Smith v. Hudson (1865) 6 B. & S. 431. 
 
 6 Chaplin V. Rogers (1800) 1 East. 192; NichoUs v. White (1911). 
 103 L.T. 800 ; and cases there cited. 
 
 ' But see sect. 41 (2) of the Act, and post pp. 179-182. 
 
 ■^ Union Bank of London v. Lenanton (1878) 47 L.T. C.B. 409.
 
 126 VENDORS AND PURCHASERS. 
 
 the bargain, there can be no part payment till after the 
 bargain is made. Earnest may be money or some 
 gift given by the buyer to the seller and accepted by 
 the latter to mark the assent of both parties to the 
 bargain.' and it does not lose its character because the 
 thing given may also avail as part payment." It must 
 be given, so that where the buyer drew a shilling across 
 the seller's hand and which the witness called " striking 
 the bargain," and the buyer then returned the coin to 
 his pocket, it was held insufficient.' And as it must 
 be intended to bind the contract, a delivery of something 
 in execution of the contract, as where bags are sent by 
 the buyer to be filled, is not the giving of an earnest.' 
 The part payment required by the Act must be inde- 
 pendent of the contract,^ and must be made in circum- 
 stances showing a recognition by the seller of the 
 existence of the contract.* It may be made in anv way 
 which constitutes payment. Thus, it was held there 
 was no part payment where it was agreed as part of 
 the contract that the amount of a debt previously due 
 by the seller to the buyer should be deducted by the 
 seller from the price of goods to be paid op a sale -/ or 
 where the contract was that an over-payment on a pre- 
 vious bargain should go in part payment.* But the 
 receipt of payment coupled with a refusal to carry out 
 the contract would be part payment.^ 
 
 Note or Memorandum in Writing. — The require- 
 ments of the Act as to a note or memorandum in writing 
 have been fullv discussed in an earlier part of this boolc, 
 and do not need further discussion here.'" 
 
 ' See Houc v, Smith (1884) 27 Ch. D. 101-2, per Fry L.J. 
 
 •^ See Bach v. Ozvcn (1793) 5 T.R. 409 ; Goodall v. Skelton (1794) 
 2 H. Bl. 316; Hall v. Btirncll (1911) 2 Ch. 551 ; Sopcr v. Arnold 
 (1889) 14 App. Cas. 429. 
 
 •' Blenkinsop v. Clayton (1817) 7 Taunt. 597. 
 
 ■* Sumner v. John Brown & Co., (1909) 25 T.L.R. 745. 
 
 •■' Walker v. Nussey (1847) 16 M. & W. 302. 
 
 " See Parker v. Crisp & Co. (1919) 1 K.B. 481. 
 
 ' Walker v. Nussey, supra. 
 
 " Norton v. Davison (1899) 1 Q.B. 401. 
 
 •' Parker y. Crisp & Co., supra; cf. Davis v. Phillips, Mills & Co. 
 -(1907) 24 T.L.R. 4. 
 
 '" See Part I., Chapter IV. ante, pp. 44-56.
 
 FORMATION OF THE CONTRACT. 127 
 
 Section ;] — Sl"bji:ct-.m \Tri;i^ ok tiii: Comkact. 
 
 iixiSTiXG OR FiTURE GooDS. — IJy Section A ot tliL* 
 Act : (1) The goods which form the sul)ject-matter of 
 a contract of sale may be either existing goods, owned 
 or possessed' by the seller, or future goods, i.e., goods 
 to be manufactured or acquired bv the seller after the 
 making of the contract of sale. (2) There may be a 
 contract for the Siile of goods the accjuisition of which 
 by the seller depends upon a contingency which mav 
 or may not happen .■ Qi) Where by a contract of sale 
 the seller purports to effect a present sale of future 
 goods, the contract operates as an agreement to sell 
 the goods. 
 
 " A person cannot . . . assign that w hich is not 
 in him.'" Therefore, though a seller may purport to 
 make a present sale of goods which he does not own 
 or possess, he cannot effect an actual sale of them, but 
 such a contract will take effect as an agreement to sell.'* 
 The property in the goods does not, therefore, pass 
 immediately, but will pass subsecjiiently, if the seller, 
 by some act done after his acquisition of the goods, 
 clearly shoAvs his intention of giving effect to the agree- 
 ment,^ or if the buyer obtains possession under 
 authority to seize them.* And if the goods be identified 
 sufficiently, the equitable interest in them passes to the 
 buyer as soon as they are acquired, no new intervening 
 act by either party being necessar\- to complete that 
 title.' It is, however, only the equitable title which 
 passes to the buyer by the contract. " A man cannot 
 in equity, any more than at law, dssij^n what has no 
 existence. A man can contract to assis^n property 
 
 ' E.g. sales by agents, factors, etc. 
 - See infra. 
 
 ■' SeeBeldiiig v. Reaii (1865) 3 H. & C. 955, per Pollock, C.H.. at 
 p. 961. 
 
 * See Vickcrs v. Hertz (1871) 9 Alacph. 05, per Lord Westbury ; and 
 Sect. 5 (3) supra. 
 
 * Langton v. Higgins (1859) 28 L.J. Ex. 252. 
 
 ^ Congreve v. Eveft.'; (1854) 10 Ex. 298 ; Hot>e v. Hayhy (1856) 
 5 E. & B. 830. 
 
 ^ Holroyd v. Marshall (1862) 10 H.L.C. 191 ; Collyer v, Isaacs (1881) 
 19 Ch.D. 342 ; Joseph v. Lyons (1884) 15 Q.B.D. 280; Tailby v. The 
 Official Receiver (1888) 13 App. Gas. 523.
 
 128 VENDORS AND PURCHASERS. 
 
 wliich is to come into existence in the future; and when 
 it has come into existence, equity, treating as done 
 that which ought to be done, fastens upon that property, 
 and the contract to assign thus becomes a complete 
 assignment (i.e., a complete assignment in equity, bv 
 which the assignee acquires an equitable title only)."^ 
 This equitable interest is liable to be defeated if before 
 the buyer gets the legal property in the goods the seller 
 disposes of them to a second purchaser without notice 
 of the equitable title, who thus obtains the legal estate.* 
 
 Goods Which Have Perished. — Where there is a 
 contract for the sale of specific goods (i.e., goods iden- 
 tified and agreed upon at the time of the contract), 
 and the goods without the knowledge of the seller have 
 perished at the time when the contract is made, the 
 contract is void.^ Thus, where a sale was made of an 
 annuity dependent on a life, and the life had already 
 expired, the sale was held void, and the purchaser was 
 allowed to recover back the price paid;* and where a 
 cargo of corn, loaded on a vessel not yet arrived, was 
 sold, and it was afterwards discovered that the corn 
 having become heated had been discharged at an inter- 
 mediate port and sold by the master of the ship in the 
 preceding month, the purchaser was held rightly 
 entitled to repudiate the contract.^ 
 
 These cases are sometimes treated as dependent on 
 an implied warranty by the seller as to the existence 
 of the thing sold ; and sometimes on the ground thar 
 there has been no contract at all in fact, the assent of 
 the parties being founded on a mutual mistake of fact 
 as to the existence of the subject-matter ;^ and sometimes 
 on the ground of impossibility of performance. 
 
 ' Collyer v. Isaacs, supra, per Jessel, M.R. at p. 351 ; and see 
 Joseph V. Lyons, supra, per Brett, M.R. at pp. 284-5. 
 
 2 Joseph V. Lyons, supra ; Hallas v. Robinson (1884) 15 Q.B.D. 
 288. 
 
 =* Sect. 6. 
 
 * Strickland v. Turner (1852) 7 E.\. 208 ; and see Cochrane v. Willis 
 (1865) 1 Ch. 58; Smith v. Myers (1870) 5 p.B. 429 ; Scott v. Coulson 
 (1903) 2 Ch. 249. 
 
 •' Hastie v. Couturier (1853) 9 Ex. 102 ; 5 H.L.C. 673 ; and see Barr 
 V. Gibson (1838) 3 M. & W. 390. 
 
 ® See Part I., Chapter V. ante, pp. 65, 66; and Huddersfield Bank 
 V. Lister (1895) 2 Ch. 281.
 
 FORMATION OF THE CO NTRACT. 129 
 
 The above provision applies only to specific goods; 
 generic goods, i.e., goods defined by description, come 
 within the maxim genus niimquam peril; the vendor 
 is still bound to supply goods answering to the descrip- 
 tion. It would appear that " perished goods " would 
 include goods which have ceased to have any commer- 
 cial value as such, as where A contracts to sell a par- 
 ticular ship to B, and the ship is found incapable of 
 carrying a cargo;' or where a particular wagon-load 
 of cement contracted to be sold has lost its distinctive 
 character as cement." 
 
 The rule of the Roman Civil Law that in case of 
 partial loss the buyer may rescind the contract or have 
 the price reduced is not recognised in English law. 
 But it is conceivable that in the case of an entire con- 
 tract for the sale of several things, if one or more of 
 them have perished, the contract is void as to the 
 remainder; or in the case of a single thing, it may 
 be so far destroyed as no longer to answer to the 
 description of it given by the contract.' 
 
 Goods Perishing Before Sale, but After Agree- 
 ment TO Sell. — Where there is an agreement to sell 
 specific goods, and subsequently the goods, without 
 any fault on the part of the seller or buyer, perish 
 before the risk passes to the buyer, the agreement is 
 thereby avoided.* 
 
 The perishing of goods after the making of the con- 
 tract affects its performance, not its formation. In the 
 absence of any condition express or implied, to the 
 contrary, impossibility of performance is no excuse to 
 the party obliged to perform ; but a condition subsequent 
 excusing performance will be implied where the parties 
 intend that performance shall depend on the continued 
 existence of the thing sold or a given state of circum- 
 
 1 Nickoll V. Ashton [(1901) 2 K.B. 133 ; Barr v. Gibson (1838) 
 3 M. & W. 400. 
 
 2 See Duthic v, Hilton (1868) 4 C.P. 138; Montreal, &c.. Coy., v. 
 Sedgwick (1910) A.C. 598. 
 
 « See Barr v. Gibson (1838) 3 M. & W. 390 ; Chalmers on the Sale of 
 Goods Act : Benjamin on Sale, p. 162. 
 
 ^ Sect. 7 ; and see Sects. 20 and 27 of the Act, d^ndpost, pp. 148. 157. 
 
 9
 
 130 VENDORS AND PURCHASERS. 
 
 Stances.' Thus, under the above provision (a) if the 
 destruction of the goods is caused by either party, then 
 that party is liable for non-delivery of the goods or 
 payment of the price, as the case may be;^ (b) if it is 
 caused by neither party,' then the agreement is avoided 
 if the risk has not passed to the buyer, and the seller 
 must bear the loss; but if the risk has passed to the 
 buyer, then the buyer must pay for the goods, though 
 undelivered. 
 
 Section 4 — The Price. 
 
 Ascertainment of Price. — The price in a contract of 
 sale may be fixed by the contract, or may be left to be 
 fixed in manner thereby agreed, or may be determined 
 by the course of dealing between the parties. Other- 
 wise the buyer must pay a reasonable price for the 
 goods ; what is a reasonable price is a question of fact 
 dependent on the circumstances of the case.^ 
 
 A reasonable price within the meaning of the above 
 provision may or may not agree with the current price 
 of the goods at the place where and at the time 
 when the bargain is made, for the current price may 
 be highly unreasonable from accidental circumstances, 
 as where the vendor has kept back the goods ; or it 
 may be unreasonable with reference to the price at other 
 places in the immediate vicinity.* In the absence of 
 evidence of price or value, the Court will presume that 
 goods of the lowest value of the kind have been sent." 
 
 Agreement to Sell at Valuation. — Where there is 
 an agreement to sell goods on the terms that the price 
 is to be fixed by the valuation of a third party, and 
 such third party cannot or does not make such valuation, 
 the agreement is avoided; provided that, if the goods or 
 any part thereof have been delivered to and appropri- 
 
 ' See Taylor v. Ccddwcll (1863) 3 B. & S. 826 ; Howell v. Coiipland 
 (1874) 1 Q.B.D, 258 ; Appicbv v. Myers (1867) 2 C.P. 651 ; c/. Hayward 
 Bros. V. Daniel (1904) 91 L.t. 319. 
 
 2 See the Act. Sects. 20 and 27 ; and pp. 148, 151 post. 
 
 ^ See Sect. 8 ; and see Part I., Chapter IV., pp. 51-54 ante. 
 
 * See Acebal v. Levy (1834) 10 Bing. 376; Hoadly v. McLainc 
 (1834) 10 Bing. 482 ; Laing v. Fidgeon (1815) 6 Taunt. 108 ; Valpy v. 
 Gibson (1847) 4 C.B. 837. 
 
 * Clunncs v. Pczzy (1807) 1 Camp. 8.
 
 FORMATION OF THE CONTRACT. \'M 
 
 ated by the buyer, he must pay a reasonable price there- 
 for. Where such third party is prevented from makincj 
 the valuation by the fault of the seller or the buver, the 
 party not in fault may maintain an action in damages 
 against the party in fault.' 
 
 Section 5 — Conditions and Warranties. 
 
 In General. — It has been shown* that a mere repre- 
 sentation, as a rule, is not an integral part of the 
 contract. But it is sometimes a question of construc- 
 tion^ whether a statement is a mere representation, or 
 whether it is a substantive part of the contract. In the 
 latter case the question arises as to whether it is a 
 condition, a breach of which justifies a repudiation of 
 the contract, or is an independent or collateral agree- 
 ment, i.e., a warranty, a breach of which will only be a 
 cause of action for compensation in damages. The 
 answer to this question depends upon the intention of 
 the parties, a question of fact depending upon the terms 
 of the contract and the circumstances in each particular 
 case." The same statement may, under certain circum- 
 stances, be merely a description or representation, and 
 under others the most substantial stipulation in the 
 contract.* Thus, where A contracted to sell goods to B 
 with an affirmation that they were free from sulphur, 
 and the absence of sulphur was a vital term of the 
 contract, B was held entitled to avoid the Siile and 
 reject the goods upon failure or non-performance of the 
 condition by A.^ But if B had received and accepted 
 a part of the goods, the condition would then have 
 become, for purposes of remedy at law, a ivarranty, and 
 B would no longer be entitled to avoid the sale, but 
 
 ' Sect. 9 ; and see generally Part I., Chapter IV. ante, p. 54. 
 
 •^ See Part I., Chapter V. ante, p. 69. 
 
 ■■' SeeBcntsenv. Taylor (1893) 2 Q.B. 280; Etncry v. Wells (1906) 
 A.C. 515. 
 
 ^ Cave V. Coleman (1828) 3 Man. & R. 2 ; Power v. Barliam (1836) 
 4 A. & E. 473 ; Hopkins v. Tanqiieray (1854) 15 C.B. 130 ; Stiicley v. 
 Bailey (1862) 1 H. & C. 405 ; Bcntsen v. Taylor, supra. 
 
 ■' Behn v. Burness (1863) 3 B. & S. 751 ; Oppenheim v. Fraser 
 (1876) 34 L.T. N.S. 524. 
 
 6 See Bannerman v. White (1861) 10 C.B. N.S. 844.
 
 132 VENDORS AND PURCHASERS. 
 
 might only brincr an action for compensation in 
 damages/ 
 
 Apart from the case where one part}' has accepted a 
 portion of the benefit of the contract and has thus 
 ex post facto changed his remedy, the rule is uniform 
 that a condition must be fully and strictly performed 
 before the party liable to perform it can call on the 
 other to fulfil his part of the contract.^ But the per- 
 formance of the condition may be waived by the party 
 in whose favour it is stipulated ; and waiver is implied 
 in all cases in which the party entitled to exact per- 
 formance of the condition either hinders or impedes the 
 other in fulfilling- the condition, or incapacitates himself 
 from performing his own part, or absolutely refuses 
 performance of his own part.^ But where a condition is 
 divisible, e.g., where goods are deliverable in instal- 
 ments from time to time, a waiver of the condition by 
 acceptance of the first instalment where the instalment 
 does not comply with the condition can be recalled, and 
 performance of the condition can be insisted on in 
 respect of future instalments.* 
 
 An implied condition, or implied warranty, as dis- 
 tinguished from an express condition or warranty, is in 
 all cases founded on the presumed intention of the 
 parties. " The implication which the law draws from 
 what must obviously have been the intention of the 
 parties, the law draws with the object of giving efficacy 
 to the transaction and preventing such a failure of con- 
 sideration as cannot have been within the contemplation 
 of either side. . . In business transactions . 
 what the law desires to effect by the implication is to 
 give such business efficacy to the transaction as must 
 have been intended at all events by both parties, who 
 are business men; not to impose on one side all the 
 
 ' See the Act. Sect. 11 (1) (c) ; Wallis v. Praff (1911) A.C. 394; 
 Ellen V. Topp (1851) 6 Ex. 424; Behn v. Burncss, supra. 
 
 •■^ See Mackay v. Dick (1881) 6 A.C. 251 ; Sharp v. Christmas (1892) 
 8 T.L.R. 687. 
 
 ■' See Bcntscn v. Taylor (1893) 2 Q.B. 274 ; Hotham v. East India 
 Coy. (1787) 1 T.R. 645; Thornhill v. Meats (I860) 8 C.B. N.S. 831; 
 Braithwaitc v. Foreign Hardwood Coy. (1905) 2 K.B. 543 ; Measures 
 Bros. V. Measures (1910) 2 Ch. D. 248 ; Jureidini v. Nat. Brit. Insu. 
 Coy. (1915) A.C. 499. 
 
 * Panoutsos v. Raymond Hadley Corp. (1917) 2 K.B. 473.
 
 FORMATION OK THK CONTRACT. 133 
 
 perils of tJie tninsacliun, or to emancipate one side from 
 all the chances of failure.'" 
 
 The Act draws a distinction between a condition and 
 a warranty, defining the latter (as regards England and 
 Ireland) as ** an agreement with reference to goods 
 which are the subject of a contract of sale, but colla- 
 teral to the main purpose of such contract, the breach 
 of which gives rise to a claim for damages, but not a 
 right to reject the goods and treat the contract as repu- 
 diated. "= 
 
 Stipulations as to Time.— Inless a different inten- 
 tion appears from the terms of the contract, stipulations 
 as to time of payment are not deemed to be of the 
 essence of a contract of sale. Whether any other stipu- 
 lation as to time is <jf the essence of the contract or not 
 depends on the terms of the contract.' Thus, if on a 
 fair consideration of the terms of the contract and the 
 circumstances, it appears that stipulations in regard to 
 time are of the essence of the contract, they will be held 
 conditions precedent."* The Judicature Act, 1873, pro- 
 vides that : " Stipulations in contracts, as to land or 
 otherwise, which would not before the passing of this 
 Act have been deemed to be or to have become of the 
 essence of such contracts in a Court of lu|uity, shall 
 receive in all courts the same construction and eftect 
 as they would have heretofore received in equity.'" 
 But the effect of this Act is not to extend to a sale of 
 goods the rule of equity which provides that in a con- 
 tract for the sale of land, unless a contrary intention 
 appears, time is not presumied to be an essential condi- 
 tion." 
 
 1 See TItc Moorcock (1889) 14 P.D. 6-i, per Bowen, L.J. at p. 68; 
 Haiiilvn V. Wood (1891) 2 Q.B. 488, 481 ; Oriental S.S. Coy. v. Tylor 
 (1893)'2 g.B. 518, 527 ; Lyttclton Times Coy. v. Warners (1907) A.C. 
 476. 
 
 ■■^ See Sect. 62. 
 
 ^ Sect. 10 (1) ; " Month " means prima facie calendar month ; see 
 Sect. 10 (2) ; and see Ebbw Vale, f-c, Coy. v. lilaina Iron, &c.. Coy. 
 (1901) 6 Com. Cas. 33 : Briiner v. Moore (1904) 1 Ch. 305 ; Bissell v. 
 Beard (1873) 28 L.T. 740. 
 
 ^ See Sanders v. MacLcan (1883) 11 Q.H.D. 336-337, per Brett, M. R. 
 
 '^ Judic. Act. 1873, Sect. 25 (7). 
 
 ^ See Renter v. Sala (1879) 4 C.P.D. 249; per Cotton, L.J. ; 
 Compton V. Bagley (1892) 1 Ch. 313.
 
 134 vendors and purcha sers. 
 
 \\'hen Condition to be Treated as Warranty. — 
 (1) In England or Ireland: (a) Where a contract of 
 sale is subject to any condition to be fulfilled by the 
 seller, the buyer may waive the condition, or may elect 
 to treat the breach of such condition as a breach of 
 warranty and not as a ground for treating the contract 
 as repudiated; (b) Whether a stipulation in a contract 
 of sale is a condition the breach of which may give 
 rise to a right to treat the contract as repudiated, or a 
 warranty, the breach of which may give rise to a claim 
 for damages, but not to a right to reject the goods and 
 treat the contract as repudiated, depends in each case 
 on the construction of the contract. A stipulation may 
 be a condition, though called a warranty in the con- 
 tract ; (c) Where a contract of sale is not severable^ 
 and the buyer has accepted the goods, or part thereof, 
 or where the contract is for specific goods, the property 
 in which has passed to the buyer, the breach of any 
 condition to be fulfilled by the seller can only be treated 
 as a breach of warranty and not as a ground for reject- 
 ing the goods and treating the contract as repudiated 
 unless there be a term of the contract, express or im- 
 plied, to that effect. (2) In Scotland, failure by the 
 seller to perform any material part of a contract of sale 
 is a breach of contract which entitles the buyer either 
 within a reasonable time after delivery to reject the 
 goods and treat the contract as repudiated, or to retain 
 the goods and treat the failure to perform such material 
 part as a breach which may give rise to a claim for 
 compensation or damages. (3) Nothing in this section 
 affects the case of any condition or warranty, fulfilment 
 of which is excused bv law by reason of impossibility 
 or otherwise.' 
 
 Thus, on a contract of sale subject to a condition to 
 be fulfilled by the seller, the buyer may, on non-fulfil- 
 ment of the condition (a) treat the contract as repudi- 
 ated, and reject the goods; or (b) waive the condition 
 by voluntarily accepting the goods; or (c) elect to treat 
 the breach of condition as a breach of warranty, in 
 which case he cannot avoid the sale, but may claim for 
 compensation in damages. Again, though the parties 
 may call the stipulation a "warranty, it is a matter of 
 
 ' Sect. n.
 
 FORMATION OF THE C ONTRACT. 135 
 
 construction of the contract w hcther in fact tlu- stipula- 
 tion may not be a condition ; for the parties may in 
 terms have provided that upon a breacli of warranty the 
 sale may be rescinded and the g-oods and money re- 
 turned/ If specific g-oods are sold with a warranty that 
 they are equal to sample the buyer cannot avoid the 
 contract merely on the ground that the goods are not 
 equal to sample, unless there is a term of the contract, 
 express or implied, to that effect." A clause in a con- 
 tract of sale of g-oods " guaranteed equal to sample," 
 or other warranty of description to the like effect, varies 
 in operation accordingly as the contract is for specific- 
 goods, or for the delivery of any goods answering the 
 description. When the contract is as to any goods, 
 such a clause is a condition going to the essence of the 
 contract ; but when the contract is as to soecific goods, 
 the clause is only collateral to the contract, and is the 
 subject of a cross-action or a matter in reduction of 
 damages."^ 
 
 Implied Undertaking as to Title. — In a contract of 
 sale, unless the circumstances of the contract are such 
 as to show a different intention, there is (1) An implied 
 condition on the part of the seller that in the case of a 
 sale he has a right to sell the goods, and that in the 
 case of an agreement to sell he will have a right to 
 sell the goods at the time when the property is to pass ; 
 (2) An implied warranty that the buyer shall have and 
 enjoy quiet possession of the goods; (3) An implied 
 warranty that the goods shall be free from any charge 
 or encumbrance in favour of any third party, not 
 declared or known to the buyer before or at the time 
 when the contract is made.* As in other cases of con- 
 ditions and warranties, on a breach of the implied 
 condition in clause (1), the buyer may reject the goods 
 and treat the contract as repudiated or may waive the 
 condition, or may treat the breach as a breach of 
 warranty. In the last case, as in case of breach of the 
 
 • Adams V. Richards (1795) 2 H.BL 573. 
 
 - Dawson v. Collis (1850) 10 C.H. 523 : Hcyu-orth \ Hutcltinson 
 (1867) 2 Q.B. 447. 
 
 •' Hcywortli v. Hutchinson, supra, per lilackburn, J., at p. 451. 
 ^ Sect. 12.
 
 136 VENDORS AND PURCHASERS. 
 
 implied warranties in clauses (2) and (3), the bu3'er's 
 only remedy is in damages. 
 
 Sale by Description. — Where there is a contract for 
 the sale of goods by description, there is an implied 
 condition that the goods shall correspond with the 
 description ; and if the sale be by sample, as well as by 
 description, it is not sufficient that the bulk of the 
 goods corresponds with the sample if the goods do not 
 also correspond with the description.^ This rule applies 
 whether the goods sold are specific or unascertained; 
 the tender of goods answering the description is a con- 
 dition precedent to the buyer's liability to pay the price. 
 A descriptive statement, so far as it is a mere represen- 
 tation or warranty, is no part of the description f but 
 there can be no contract for the sale of future goods 
 except by some description. The question sometimes 
 arises whether a statement of quality {e.g., " extra 
 special ") applied to a particular subject-matter of sale 
 forms part of the description. If it does, the buyer 
 may reject the goods if they do not correspond with 
 that description ; if not, the buyer would then have to 
 rely on the provisions of Section 14 of the Act.^ The 
 implied condition that goods bought under a specified 
 commercial description should conform therewith is not 
 excluded by the fact that the sale is by sample,^ or that 
 the bulk has been inspected (though inspection of the 
 bulk may negative a sale by description) ;* for in some 
 cases a sample is given not as an expression of quality, 
 but as the only description.* Moreover, the implied 
 condition that the goods shall answer to the description 
 under which they are sold is not excluded by an express 
 but not inconsistent warranty or condition in the con- 
 tract;' or by a stipulation absolving the seller from 
 
 ' Sect. 13. 
 
 •^ See Taylor v. Bitllcn (1850) 5 Ex. 779. 
 
 ^ See infra ; Re North Western Rubber Coy. (1908) 2 K.B. 907 ; and 
 see Sect. 62 (1) ; " State or condition " is included in the definition of 
 " quality." 
 
 * Sect. 13, supra. 
 
 ' See Attwater v. Kinnes (1906), Scotsman, May 29th. 
 
 ^ Mody V. Grcg.'ion (1868) 4 Ex. 49. 
 
 ' See Sect. 14 (4).
 
 FORMATION OF THE CONTRACT. 137 
 
 responsibility;' or by a stipulation that intVriorilv in 
 quality shall be allowed for;' or bv a stipulation that 
 the buyer's right of rejection shall be exclucied ; or 
 that any dispute shall be referred to arbitration;"^ 
 though such stipulations may in certain cases be con- 
 strued as showing that the goods were not in fact sold 
 under any particular description/ 
 
 Implied Conditions as to yuALiTv and Fitness. — 
 Subject to the provisions of the Act and of any other 
 statute in that behalf, there is no implied warranty or 
 condition as to the quality or fitness for any particular 
 purpose of goods supplied under a contract of sale, 
 except as follows: — (1) Where the buyer, expressly or 
 by implication, makes known to the seller the particular 
 purpose for which the goods are required, so as to show 
 that the buyer relies on the seller's skill or judgment, 
 and the goods are of a description which it is in the 
 course of the seller's business to supply (whether he be 
 a manufacturer or not), there is an implied condition 
 that the goods shall be reasonably fit for such purpose, 
 provided that in the case of a contract for the sale of 
 a specified article under its patent or other trade name, 
 there is no implied condition as to its fitness for any 
 particular purpose ; (2) where goods are bought by 
 description from a seller who deals in goods of that 
 description (whether he be the manufacturer or not), 
 there is an implied condition that the goods shall be of 
 merchantable quality, provided that if the buyer has 
 examined the goods, there shall be no implied condition 
 as regards defects which such examination ought to 
 have revealed ; {■\) an iinplied warranty or condition as 
 to qualitv or fitness for a particular purpose inay be 
 annexed by the usage of trade ; (4) an express war- 
 rantv or condition does not negative a warranty or 
 condition implied bv the Act unless inconsistent there- 
 with.'^ 
 
 ' Howcroft V. Liiycock (1898) 14 T L R. 460 ; Wullis v Pratt (1911) 
 AC. 394. 
 
 ••' Azeiiiiirv. Casella (1S66) 2 C.P. 431 ; Gorton v. ^]clniosl^ (1883) 
 W.N. 103. 
 
 ■' Vigers v. Sanderson (1901) 1 K.B. 608. 
 
 ^ Carter v. Crick (1859) 28 L.J. Ex. 238 ; Houcroft v. Perkins (1900) 
 16 T.L.R. 217. 
 
 5 Sect. 14.
 
 138 VENDORS AND PURCHASERS. 
 
 The maxim caveat emptor is the general rule applic- 
 able to sales so far as quality is concerned.' The 
 buver, in the absence of fraud, purchases at his own 
 risk, unless the seller has given an express warranty 
 or unless a condition or warranty be implied from the 
 nature and circumstances of the sale; and a condition 
 or warranty as to fitness or quality is implied only so 
 far as a buyer does not buy on his own judgment. He 
 buys on his own judgment if he selects or defines the 
 specific goods he requires; he buys on the seller's 
 judgment if the seller agreed to " supply " goods, 
 and there is no genuine opportunity of inspecting 
 them." If the buyer's purpose be communicated to 
 the seller, the seller's obligation is to supply goods fiit 
 for that purpose ; if the goods are bought under a 
 commercial description, his duty is to supply merchant- 
 able goods. Where the goods are bought by sample 
 the buyer trusts to his own judgment (having inspected 
 or been able to inspect the sample) as regards any 
 merchantable or other quality of the bulk which the 
 sample would reveal on a reasonable examination, but 
 on the seller's judgment as regards the bulk correspond- 
 ing with the sample.^ Such was the position at 
 common law, and now the Act has adopted the three 
 implied conditions as to fitness, merchantable quality, 
 and correspondence with sample. These implied con- 
 ditions, however, may be negatived or varied by express 
 agreement, or by the course of dealing between the 
 parties, or by usage, if the usage is such as to bind 
 both parties.* 
 
 By " particular purpose " is meant the purpose 
 expressly or impliedly communicated to the seller, for 
 which the buyer buys the goods;* but where an article 
 is capable of being applied to a varietv of purposes the 
 
 ' See Part I., Chapter V. ante, p. 66; Parkinson v. Lee (1802) 
 2 East. 314. 
 
 '^ See Jones v. Just (1868) 3 Q.B. 197. 
 
 •■' See Mody V. Gregson (1868) 4 Ex. 49; Drummond v. Van Ingcn 
 (1887) 12 A.C. 284. 
 
 * See the Act, Sect. 55 ; Re Walkers & Shaw (1904) 2 K.B. 152. 
 •' See Wallis v. Russell (1902) 2 Ir.R. K.B. 585; Preist v. Last 
 (1903) 2 K.B. 148 ; Drumwond v. Van Ingen (1887) 12 A.C. 284.
 
 FORMATION OF THi: CONTRACT. 13f) 
 
 buyer must sj3ecifN- tin- ijiirposr he Uiis in view.' It 
 ma\' be gathered from the course pursued by the parties 
 and from their conduct and acts and w ritings anteicdent 
 but leading up to tlie contract itself." 
 
 Under the Act, instead of a presumption that a 
 buyer, who might have inspected the goods, bought on 
 his judgment, it is now a question of fact whether he 
 so bought or not, and an actual examination or oppor- 
 tunity of examination is immaterial, whether the g(jods 
 l)ought are specific or unascertained goods. '^ Hiu the 
 buyer buys on his own judgment if the seller does not 
 deal in the class of goods sold.' The seller's liability 
 to supply goods " reasonabl}' lit " for the buyer's 
 purpose is absolute, and the existence of latent defects 
 is therefore immaterial.^ 
 
 Goods are of merchantable quality if they are of such 
 qualitv and in such condition that a reasonable man, 
 acting reasonably, would, after a full examination, 
 accept them under the circumstances of the case in 
 performance of his offer to buy them, whether he buys 
 for his own use or to sell again." To exclude the condi- 
 tion of merchantable quality where the goods have been 
 inspected, the inspection must be a real one,'' so that 
 if the defects are latent the examination is unreal and 
 the condition is so far not excluded. 
 
 Skctiox G — Sam: by Samimj:. 
 
 Sale by Sample. — A contract of sale is a contract for 
 sale bv sample where there is a term in the contract, 
 express or implied, to that effect; and in such case (a) 
 there is an implied condition that the bulk shall corre- 
 spond with the sample in quality; (b) there is an 
 
 ' Preist V. Last, supra, 153 ; Dnimniond v. Vmt Ingcit, supra. 
 293 ; Jones v. Padgett (1890) 24 Q.B.D. C50. 
 
 '^Gillespie v. Cheney (1896) 2 Q.T.. 63; Jacobs v. Heott (1S99) 
 2 Eraser 70, 76. 
 
 ^ See Wallis v. Russell, supra. 
 
 * Turner V. Mucklow (1862) 8 Jur. (N.S.) 870. 
 
 •' See Frost v. Aylesbury Dairy Coy. (1905) 1 K.U. 608 
 
 ^ Bristol Tramxi-ays,&c.. Coy .\-. Fiat Motors (1910) 2 K ll. 831, 
 841. 
 
 " Mociy V. Gregson (1868) 4 l':.\ 53; Drunniiouil v. Van Ingcn (1887) 
 12 A.C. 294.
 
 140 VENDORS AND PURCHASERS. 
 
 implied condition that the buyer shall have a reasonable 
 opportunitv of comparing the bulk with the sample; 
 (c) there is an implied condition that the goods shall 
 be free from any defect, rendering them unmerchant- 
 able, which would not be apparent on reasonable 
 examination of the sample.' 
 
 It has already been seen that the bulk, if sold by 
 description, must correspond with the description." By 
 the above provision the bulk must also correspond with 
 the sample in quality, where the contract is one for 
 sale by sample. At common law on a sale by sample 
 no condition as to merchantable or as to any particular 
 quality is ordinarily implied,^ and clause (c) of the 
 above provision excludes a condition of merchantable 
 qualitv as regards discoverable defects, and the seller 
 in such a case will fulfil his contract under clause (a) 
 if the goods are according to sample, though unmer- 
 chantable.* 
 
 The law under Sections 14 and 15 of the Act. applic- 
 able to cases where the goods are defective, and the 
 buyer has examined them or the sample, may be thus 
 stated :' (1) If the defect be discoverable, its existence 
 is not a breach of the condition of merchantable quality, 
 but the goods, if sold by sample, must conform thereto ; 
 (2) If the defect be latent, a condition of merchantable 
 quality is implied, and the goods, if sold by sample, 
 must also conform thereto; (3) The buyer's examina- 
 tion of the goods will not exclude a condition as to 
 fitness for the buyer's particular and communicated pur- 
 pose, unless by such examination he intended in fact 
 to rely upon his own judgment; but the condition will 
 be excluded only as regards discoverable defects. 
 
 Section 7 — Sales by Auction. 
 
 An advertisement of a sale by auction is not an offer 
 binding the auctioneer to put up the lots for sale.* 
 
 ' Sect. 15. 
 
 '^ See ante, p. 136. 
 
 ■^ See Mody v. Grcgson (1868) 4 Ex. 49, 53. 
 
 * See also Sect. 14 (2) ante, p. 137. 
 
 ■" See Benjamin on Sale, pp. 745, 746. 
 
 '■ Harris v. Nickerson (1873) 8 Q.B. 286.
 
 FORMATION OF THE CONTRACT. 141 
 
 When the lots are put up for sale there is an otTer which, 
 so soon as the hio-hest bid is made, becomes a binding 
 contract between the auctioneer and the hif^hest bidder.' 
 provided that, where the sale is subject to a reserve, 
 both the offer b\- the highest bidder and its acceptance 
 by the auctioneer are conditional upon the reserve price 
 having- been reached." If the lot is knocked down bv 
 mistake for less than the reserve price there is no sale!" 
 Where goods are put up for sale by auction in lots, each 
 lot is prima facie deemed to be the subject of a separate 
 contract of sale.' 
 
 A sale by auction is complete when the auctioneer 
 announces its completion by the fall f)f the hammer, 
 or in other customary manner. Until such announce- 
 ment is made any bidder may retract his bid;' or the 
 seller may withdraw^ the goods. ^ If the sale is subject 
 to a reserve, however, the sale is not complete if the 
 reserve price has not been reached when the hammer 
 falls.* A sale by auction mav be notified to be subject 
 to a reserved or upset price." 
 
 A right to bid may be reserved expressh' bv or on 
 behalf of the seller.' Where this right is expressly 
 reser\'ed the seller, or any person on his behalf, may 
 bid at the auction.* Where a sale by auction is not 
 notified to be subject to a right to bid on behalf of the 
 seller, the seller may not himself bid nor emplov any 
 person to bid at such sale, nor may the auctioneer know- 
 ingly take anv bid from the seller or any such person ; 
 any sale contravening this rule may be treated as fraudu- 
 lent by the buver.' At common law a sale was invalid 
 
 ' WaHou- V. Harrison, 1 E. & E. 295 ; Thornett v. Haines (1846) 
 15 M. & W. 367 ; Johnston v. Boycs (1899) 2 Ch. 75. 
 
 - McManus v. Fortcscue (1907) 2 K.B. 1. 
 
 ■' Sect. 58 (1). 
 
 * Sect. 58 (2) ; Payne v. Cave (1789) 3 T.K. 148. 
 
 * Fenwick v. Macdonald (1904) 6 F. 850. 
 
 « McManus v. Fortcscue (1907) 2 K.B. I. 
 
 ' Sect. 58 (4). 
 
 " Sect. 58 ; see Thornett v. Haines (1846) 15 M. & W. 367 ; R. v. 
 Marsh (1829) 3 Y. & J. 331 ; Parfitt v. Jepson (1877) 46 L.J. Q.B. 529. 
 
 ^ Sect. 58 (3) ; see Bcnwell v, Christie (1776) Cowp. 395 ; Howard \. 
 Castle (1796) 6 T.R. 642; Croicdcr v. Austin (1826) 3 Hing. 368; 
 Wheeh-r v. Collier (1827) Mood. & M. 123 ; R. v. Marsh (1829) 3 Y & J. 
 331 ; (1831) 1 Cr. & J. 306 ; and cases cited supra and infra
 
 142 VENDORS AND PURCHASERS. 
 
 if a puffer was employed to bid on behalf of the seller, 
 unless the right so to bid had been expressly reser\'ed. 
 The rule in equity appears to have been that the employ- 
 ment of one puffer might be justified to prevent a sale 
 at an under-value.' Under the rules stated above, the 
 employment of a puffer will invalidate the sale unless the 
 right to bid has been reserved expressly in the particu- 
 lars or conditions of sale ; it is not enough to state that 
 the sale is subject to a reserve price." 
 
 * Thornett v. Haines, supra; Green v. Baverstock (1863) 14 C.B. 
 N.S. 204; Mortimer \. Bell (1865) 1 Ch. 10. 
 - Gilliat V. Gilliat (1869) 9 Eq. 60.
 
 CHAPTER II. 
 
 EFFhXTS OF TIIH COXTRACT. 
 Section 1 — Transfer of Propfrtv. 
 
 Gfnfrally. — It has been shown' that in a sale, the 
 subject-matter of the contract becomes the property of 
 the buyer the moment the contract is concluded, whether 
 the goods remain in the possession of the seller or are 
 delivered to the buyer; whereas in an agreement to 
 sell, the property is to pass at a future time or subject 
 to the fulfilment of a condition. In the one case all the 
 risks and advantages incident to the property in the 
 goods are the buyer's; in the other case they are the 
 seller's. But this general rule is subject in all cases to 
 the intention of the parties; the property passes when 
 they intend it shall pass; and this question of intention 
 is a matter of construction. Where the intention of the 
 parties is not clearly manifest from the terms of the 
 contract and the circumstances of the case, the presump- 
 tion is that the contract is an actual sale if specific goods 
 be agreed upon and if they are ready for immediate 
 deliver\'; but when the goods are unascertained, or if, 
 w^hen ascertained, something remains to be done to 
 them by the seller, the presumption is that the contract 
 is executory, i.e., an agreement to sell. Where the 
 intention of the parties is clear it may, however, appear 
 that the property even in specific goods is not to pass 
 until certain conditions are fulfilled or until the expira- 
 tion of a certain period of time. 
 
 Unascertained Goods. — Where there is a contract 
 for the sale of unascertained goods no property in the 
 goods is transferred to the buyer unless and until the 
 goods are ascertained.* Thus, the ascertainment of *he 
 goods is one of the conditions^ on which the transfer of 
 the property depends. 
 
 Property Passes When Intended to Pass. — 
 (1) Where there is a contract for the sale of specific or 
 ascertained goods the property in them is transferred 
 to the buyer at such time as the parties to the contract 
 
 ^ See Part I., Chapter I. ante, p. 1. '^ Sect. 16. 
 
 =^ See Sect. 1 (3) and (4).
 
 144 VENDORS AND PURCHASERS, 
 
 intend it to be transferred. (2) For the purpose of 
 ascertaining the intention of the parties rec^ard shall 
 be had to the terms of the contract, the conduct of 
 the parties, and the circumstances of the case.' 
 
 Rules for Ascertaixing Intextion. — Unless a 
 different intention appears, the following are rules for 
 ascertaining the intention of the parties as to the time 
 at which the property is to pass to the buver. 
 
 Rule 1. — Where there is an unconditional contract 
 for the sale of specific goods, in a deliverable state, 
 the propertA' in the goods passes to the buyer when the 
 contract is made, and it is immaterial whether the time 
 of payment or the time of delivery, or both, be post- 
 poned. Thus, B agreed to sell to T a certain stack 
 of hay for £145, payable on the following 4th Febru- 
 ary, the stack to remain on the premises until 1st May. 
 Held to be an immediate sale, the goods being specific 
 and in a delivera-ble state, although there was a stipula- 
 tion that the hay was not to be cut till paid for." 
 
 Rule 2. — Where there is a contract for the sale of 
 specific goods and the seller is bound to do something 
 to the goods, for the purpose of putting them into a 
 deliverable state, the propert}^ does not pass until such 
 thing be done, and the buyer has notice thereof.^ 
 
 Rule 3. — Where there is a contract for the sale of 
 specific goods in a deliverable state, but the seller is 
 bound to weigh, measure, test or do some other act 
 or thing with reference to the goods for the purpose 
 of ascertaining the price, the property does not pass 
 until such act or thing be done, and the buyer has 
 notice thereof.' 
 
 ^ Sect. L7. 
 
 2 Tarling v. Baxter (1827) 6 B. & C. 360 ; see Martindalc v. Smith 
 (1841) 1 Q.B. 389 ; Heilbutt v. Hickson (1872) 7 C.P. 449 ; Sweeting v. 
 Turner (1872) 7 Q.B. 313. 
 
 ■^ See Sect. 18 ; Hanson v. Meyer (1805) 6 East. 614 (sale of starch to 
 be weighed) ; Rugg v. Minett (1809) 11 East. 210 (turpentine to be filled 
 up in casks and measured) ; Zagury v. Furnell (1809) 2 Camp. 240 
 (bales of skins to be counted over) ; Simmons v. Swift (1826) 5 B. & C. 
 857 (bark to be weighed) ; Swanwick v. Sothern (1839) 9 A. -& E. 895 
 (oats to be weighed and delivered) ; Logan v. Le Mesurier (1847) 6 Moo. 
 P.C. 116 (timber to be delivered and measured) ; Gilmour v. Sufflc 
 (1858) 11 Moo. P.C. 551 (timber raft, measured and delivered); 
 Acraman v. Morrice (1849) 8 C.B. 449 (trunks of trees, rejected parts to 
 be severed, and the rest to be delivered at purchaser's wharf) ; Tansley 
 V. Turner (1835) 2 Scott. 238 (adding up of items of measurements not 
 a thing to be done by seller).
 
 i:kfl:ct .s ok thk contract. 145 
 
 It is to be remembered that tlie above rules contained 
 in the Act will yield to any contrary intention of the 
 parties as expressed by the" terms ol the contract and 
 having regard to the circumstances of the case.' And 
 where the acts to be done to mal<e the goods deliverable, 
 or to ascertain the price (as by weighing, measuring, 
 counting, etc.), are to be done by the buyer, the rules 
 stated do not apply, and the passing of the property 
 will not as a rule be postponed until these acts are 
 done.' 
 
 Rule 4. — When goods are delivered to the buyer on 
 approval or " on sale or return " or other similar 
 terms the property therein pa.sses to the buyer : (a) 
 When he signifies his approval or acceptance to the 
 seller or does anv act adopting the transaction; (/>) If 
 he does not signify his approval or acx^ejitance to the 
 seller, but retains the goods without giving notice of 
 rejection, then, if a time has been fixed for the return 
 of the goods, on the expiration of such time, and, if 
 no time has been fixed, on the expiration of a reason- 
 able time. What is a reasonable time is a cjuestion of 
 fact. 
 
 To bring a case under this rule the circumstances 
 must show that the buyer has an option to become the 
 owner of the goods in the events mentioned. If the 
 contract specifies any other event as essential to the 
 passing of the property, the rule does not apply, for a 
 different intention appears. And a sale subject to a 
 right of the buyer to rescind it, if the goods are not 
 approved, is equally outside the rule;' so also is the 
 case where the option of treating the transaction as a 
 sale if the groods are not returned is with the seller."^ 
 
 ^ See Logan v. Le Mesurier, supra ; The Calcutta Coy. v. DeMattos 
 (1863) 32 L.J. Q.B. 335; The Badischc, &c., Fabrik v. The Basle 
 Chemical Works (ia98) A.C. 207; Sanders v. Sadler (1907) 95 L.T. 
 872. 
 
 2 See Turley v. Bates (1863) 2 H. & C. 200; Rugg v. Minett (1809) 
 11 East. 210. 
 
 •' See Weiner v. Gill (1906) 2 K.B. 574 ; Eduards v. Vaughan (1910) 
 26 T.L.R. 545 ; Freeman v. Attenborough (1910) ibid. 
 
 " Head V. Tattersall (1871) 7 Ex. 7 : Cranston v. Mallow (1912) Sess. 
 Cas. 112. 
 
 " Manders v. Williams (1849) 4 Ex. 339; and see generally I'ari I.. 
 Chapter I. ante, p. 2. 
 
 10
 
 146 VENDOR S AND PURCHASERS. 
 
 Rule 5. — (1) Where there is a contract for the sale 
 of unascertained or future goods by description, and 
 goods of that description and in a deliverable state are 
 unconditionally appropriated to the contract, either by 
 the seller with the assent of the buyer, or by the buyer 
 with the assent of the seller, the property in the goods 
 thereupon passes to the buyer. Such assent may be 
 express or implied, and may be given either before or 
 after the appropriation is made. (2) Where in pursu- 
 ance of the contract the seller delivers the goods to the 
 buyer or to a carrier or other bailee or custodier (whether 
 named by the buyer or not) for the purpose of trans- 
 mission to the buyer, and does not reserve the right of 
 disposal, he is deemed to have unconditionally appro- 
 priated the goods to the contract. 
 
 Thus (1), A bought twenty hogsheads of sugar cut 
 of a lot of sugar in bulk belonging to B. Four hogs- 
 heads were filled and delivered, sixteen others were 
 filled and appropriated {i.e., set aside, marked or 
 labelled) by B, who gave notice to A to remove them. 
 A promised to do so. Held, this was an implied 
 subsequent assent to the appropriation by the seller of 
 the sixteen hogsheads; that the contract was thereby 
 converted into a sale and the property passed.' 
 
 (2) A contracted with B for two hundred firkins of 
 butter at so much per cwt., f.o.b., payment by bill at 
 two months from date of landing, to be shipped the 
 same month. A month later B, the seller, received 
 from X an invoice and bill of lading for these butters, 
 which had not been shipped within the time stipulated. 
 A waived the delay and consented to retain the invoice 
 and bill of lading. The butter was aftersvards lost by 
 shipwreck. Held, that the subsequent appropriation 
 was complete by mutual assent ; that the property had 
 passed and A must suffer the loss.^ 
 
 Delivery to a carrier by order of the purchaser 
 is an appropriation of the goods and a delivery 
 to the buyer, and the property passes immedi- 
 
 ' Rohde V. Thwaitcs (1827) 6 B. & C. 388 ; and see Pignatoro v. 
 Gilroy (1919) 1 K.B. 459. 
 
 "^ Alexander V. Gardner (1835) 1 Bing. N.C. 671; see also Sparkes 
 V. Marshall (1836) 2 Bing. N.C. 761.
 
 EFFECTS OF THE CO NTRACT. _ 147 
 
 ately.' This only applies where the carrier is the 
 buyer's agent to take deliverv. If the facts of the 
 case show that the seller reserves a right of disposal,^ 
 or agrees to deliver the goods at their destination,' the 
 carrier is then the seller's agent, and deliver}- to the 
 carrier is not a final appropriation. And, generally, 
 the rule above stated is subject in all cases to the 
 intention of the parties as expressed by the terms of the 
 contract or inferred from the circumstances of the case. 
 
 Reservation of Right of Disposal. — (1) Where 
 there is a contract for the sale of specific goods or where 
 goods are subsequently appropriated to the contract, 
 the seller may, by the teiTns of the contract or appro- 
 priation, reserve the right of disposal of the goods until 
 certain conditions are fulfilled. In such case, notwith- 
 standing the delivery of the goods to the buyer, or to 
 a carrier or other bailee or custodier for the purpose of 
 transmission to the buyer, the property in the goods 
 does not pass to the buyer until the conditions imposed 
 by the seller are fulfilled. (2) Where goods are 
 shipped, and, by the bill of lading, the goods are 
 deliverable to the order of the seller or his agent, the 
 seller is prima facie deemed to reserve the right of 
 disposal. (3) Where the seller of the goods draws on 
 the buyer for the price, and transmits the bill of ex- 
 change and bill of lading to the buyer together to 
 secure acceptance or payment of the bill of exchange, 
 the buyer is bound to return the bill of lading if he 
 does not honour the bill of exchange, and if he wrong- 
 fully retains the bill of lading the property in the 
 goods does not pass to him.'' 
 
 Thus, A in Hong-Kong orders goods from \\ in 
 London without sending the money for them, {a) B 
 may take the lading, making the goods deliverable to 
 his own order or that of his agent in Hong-Kong and 
 send it to his agent, w4th instructions not to transfer it 
 
 1 Diitton V. Solomonson (1803) 3 B. & P. 582 : Cork Distilleries Co. 
 V. Gt. Southern, &c., Rly. Coy. (1874) 7 H.L. 269 ; Johnson v. L. & Y. 
 Rly. Coy. (1878) 3 C.P.D. 499. 
 
 2 As under Sect. 19 (l) infra. 
 
 ■^ Badischc Anilin, <''-c., Fabrik v. Hash- Chemical Works (1898) 
 A.C. 200. 
 •* Sect. 19.
 
 148 VENDORS AND PURCHASERS. 
 
 to A except on payment for the goods. Or (b) B may 
 draw a bill of exchange for the price of the goods on 
 A, and sell the bill to a London banker, transferring 
 to the banker the bill of lading for the goods, to be 
 delivered to A on due payment of the bill of exchange. 
 In either case the property in the goods remains in B 
 till the bill of lading has been endorsed and delivered 
 up to A. Or (c), under the above section of the Act, 
 B may draw upon A a bill of exchange for the price, 
 and may send it, together with the bill of lading, direct 
 to A. In this case it is often difficult to decide whether 
 B intends to resen-e a right of disposal, and each case 
 depends on its owm circumstances.^ 
 
 Incidence of Risk. — Unless otherwise agreed, the 
 goods remain at the seller's risk until the property 
 therein is transferred to the buyer, but when the pro- 
 perty therein is transferred to the buyer, the goods are 
 at the buyer's risk, whether delivery has been made or 
 not. Provided that where delivery has been delayed 
 through the fault of either buyer or seller, the goods are 
 at the risk of the party in fault as regards any loss 
 which might not have occurred but for such fault. 
 Provided also that nothing in this section shall affect 
 the duties or liabilities of either seller or buver as a 
 bailee or custodier of the goods of the other party. ^ 
 
 The general rule is, thus, that the risk attaches to the 
 ownership of the goods, ^ just as any accretion or 
 benefit to them also attaches.* But the parties may by 
 agreement intend otherwise, and a different intention 
 may be inferred from the course of dealing between the 
 parties or by usage binding them both.* The fact that 
 
 * See Mirabita v. The Imperial Ottoman Bank (1878) 3 Ex.D. 164, 
 172; The Prinz Adalbert (1917) A.C. 586; Craven v. Ryder (1816) 
 6 Taunt. 433 ; Falk v. Fletcher (1865) 18 C.B. N.S. 403 ; The 
 Miratuichi (1915) P. 71 ; Van Casteel v. Booker (1848) 2 Ex. 691 ; 
 Joyce \ . Su-ann (1864) 17 C.B. N.S. 84 ; Ex parte Banner (1876) 
 2 Ch.D. 288; Konig v. Brandt (1901) 84 L.T. 748; Shepherd v. 
 Harrison (1869) 4 Q.B. 196; (1871) 5 H.L. 116; Ogg v. Shuter 
 (1875) 1 C.P.D. 47 ; Cahn v. Pockett (1898) 2 Q.B. 61 ; (1899) 1 Q.B. 
 643 ; The Parchim (1918) A.C. 157. 
 
 - Sect. 20. 
 
 •■ See Martineau \ . Kitching (1872) 7 Q.B. 453. 
 
 * Sweeting v. Turner (1871) 7 Q.B. 313. 
 ■'' See Sect. 55 of the Act.
 
 EFFEC TS OF THE CONTRACT^ 149 
 
 one party or the other is to insure the goods is material 
 to the question.' A common instance of this kind is 
 what is known as a " c.f.i." contract, i.e., a contract 
 in which the price is to include the cost, freifjhl. 
 and insurance of the c^oods. The buver is then in effect 
 the insurer, and the risk prima facie attaches to him on 
 and after shipment subject to the seller's (jblii^ation to 
 tender valid effective shipping' documents.* 
 
 Section- 2 — Transfer of Titli:. 
 
 Sale by Person not the Owner.— (1) Subject to the 
 provisions of the Act,^ where goods are sold by a 
 person who is not the owner thereof, and who does not 
 sell them under the authority or with the consent of the 
 owner, the buyer acquires no better title to the goods 
 than the seller had, unless the owner of the goods is 
 by his conduct precluded from denying the seller's 
 authority to sell. (2) Provided also that nothing in the 
 Act shall affect (a) the provisions of the Factors Acts' 
 or any enactment^ enabling the apparent owner of goods 
 to dispose of them as if he were the true owner thereof ; 
 (b) the validity of any contract of sale under any 
 special, common law, or statutory power of sale or 
 under the order of a Court of competent jurisdiction." 
 
 General Rule. — As a general rule, no man can sell 
 goods and convey a good title to them imless he conveys 
 them as owner, or as the authorised agent of the owner. ^ 
 Therefore, however innocently a person bu}'s goods 
 from one who is not the owner, he obtains no property 
 
 ' Fragano v. Long (1825) 4 B. & C. 219; Anderson v. Morice (1876) 
 1 App. Cas. 713 ; and see Co/. /n.s-/«. Coy., N.Z.. v. Adcluiilc Marine 
 Insii. Coy. (1886) 12 App. Cas. 128. 
 
 - See Calcutta Coy. v. Dc Matfos ilSb'i} 33 L.J. Q.I3. 214; Dtipont 
 V. Brit. S. Afr. Coy. (1901) 18 T.L.R. 24; Tregellcs v. Scwell (1862) 
 7 H. & N. 574 : Biddcll Bros. v. E. Clemens Hor.-it Coy. (1911) 1 K.B 
 934 ; Stock v. Inglis (1885) 10 App. Cas. 263. 
 
 ■' I.e. Sects. 22-25 ; vide infra. 
 
 * 1889; see Appendix B. IIL ; and pp. 103, 104, ante. 
 
 ■' E.^. Bills of Lading Act. 1S55; Bankruptcy Act. 1914, ss. iS. 47; 
 Bills of Sale Act, 1878. 
 
 •^ Sect. 21 ; and see Part IV., Chapters IL and IV.. post. 
 
 ' Peer v, Humphrey (1835) 2 A. & E. 495 ; Whistler v. Foster (1863) 
 31 L.J. C.P. 161 ; Candy v. Lindsay (1878) 3 App. Cas. 459.
 
 150 VENDORS AND PURCHASERS. 
 
 in them (except in certain special cases) ;^ and even if 
 he re-sells them to a third person in good faith, he 
 remains liable in trover to the original owner." 
 
 Exceptions to the General Rule. — The above rule 
 does not apply where a person who is not the owner 
 of goods enters into an agreement to sell them; such 
 an agreement is valid. ^ By Section 21 of the Act, the 
 rule is also excluded where the owner of the goods, by 
 his conduct, has enabled the sale to take place, as where 
 he stood by and allowed the sale,* or assisted in the 
 sale,"* or issued a warrant in blank to the seller,* or 
 allowed the seller to hold himself out as owner. ^ The 
 owner in such cases comes within the broad general 
 principle of law that " wherever one of two innocent 
 persons must suffer by the acts of a third, he who has 
 enabled such third person to occasion the loss must 
 sustain it."^ But the term " enabled " in this rule 
 must be construed with due regard to the circumstances 
 of the case.* 
 
 Sale by Authority or with Consent of Owner. — 
 Instances of sales " under the authority or with the con- 
 sent of the owner" within Section 21 of the Act, are 
 sales bv agents acting within the scope of their actual 
 or implied authority. And sales by a mortgagor of 
 mortgaged chattels in the ordinary course of business 
 and with the consent of the mortgagee also fall within 
 this rule.'" 
 
 ' See infra. 
 
 '^ Stone V. Marsh (1827) 6 B. & C. 551 ; Marsh v. Keating (1834) 
 1 Bing. N.C. 198 ; White v. Spettigiie (1845) 13 M. & W. 603 ; Lee v. 
 Bayes (1856) 18 C.B. 599. 
 
 •' See Hibblewhite v. McMorinc (1839) 5 M. & W. 462; Ajello w 
 Worsley (1898) 1 Ch. 274; and see ante, p. 127. 
 
 ■' Gregg V. Wells (1839) 10 A. & E. 90. 
 
 '' Walker v. Drakeford (1853) 1 E. & B. 749. 
 
 " Zwinger v. Samuda (1817) 7 Taunt. 265. 
 
 '' Henderson v. Williams (1895) 1 Q.B. 521. 
 
 " See Fa rqiih arson v. King (1901) 2 K.B. 711-713 ; (1902) A.C. 332- 
 333. 335-337, 342. 
 
 ■' See cases cited in notes 4-8, supra. 
 
 '"See Nat. Bank v. Hampson (1880) 5 Q.B.D. 177; Taylor y. 
 McKeand (1880) 5 C.P.D. 358; cf. Payne v. Fern (1881) 6 Q.B.D. 620 ; 
 Gough V, Wood (1894) 1 Q.B. 713 ; Ellis v. Glover (1908) 1 K.B. 388.
 
 EFFECTS OF THK CONTRACT. l')l 
 
 Sale in MARKrrr Overt. — A saio in market overt is an 
 important exception to the general rule stated above. 
 In the case of such sales, and accordinnr to the usage of 
 the market, the buyer acquires a g'ood title to the iifoods 
 provided he bu}s them (a) in <xo(>d faith, i.e.. honcsth'. 
 whether negligently or not,' and (/)) without notice of 
 any defect or want of title on the part of the seller.' A 
 S£ile in market overt protects the innocent purcha.ser 
 only; it does not relieve the seller from liability.'' And 
 the rule does not apply to the sale of horses.' 
 
 The term " market overt " means *' an open, public 
 and legall}- constituted market."* In the country it is 
 held bv charter or prescription on special days;* but in 
 the City of London every da\' except Sunday is market 
 dav/ in the country the only place that is market overt 
 is the particular area of ground set apart by custom for 
 the sale of particular goods, and this does not include 
 shops. In the Citv of London every shop in which 
 goods are exposed publicly for sale is market overt for 
 such goods as the owner openlv professes to trade in.* 
 The shop must be one in which goods are openly .sold, 
 i.e., in the presence and sight of anyone entering the 
 shop ;' it is immaterial that the shop has glass windows 
 or is not suilficiently open for passers-by to see in." 
 A wharf in London is not market overt;" nor is anv 
 shop a market overt for goods not usually sold there;" 
 
 1 See Sect. 62 (2) of the Act. 
 
 2 Sect. 22 (1). 
 
 « Delaney v. Wallis (1883) 14 L.R Jr. 31. 
 
 ^ Sect. 22 (2). 
 
 •' Lee \' . Bayes {\B56) 18 C.B. 599, /)ct Jer\ is. C.J.. at p. 601: and 
 see Benjamin v. Andrcu-s (1858) 5 C.B. N.S. 299. 
 
 6 Bl. Comm. 2, 449 ; Co. Inst. 2. 220 ; and see Bciijtiiiiin v. Amin-us, 
 supra. 
 
 ■ Case of Market Overt (1596) 5 Co. 83b. 
 
 " Ibid. The custom does not protect a sale outside the bounds of the 
 City. 
 
 ^ Hargreave v. Spink (1S92) 1 Q.B. 25 ; Hill v. Smith (1812) 4 Taunt. 
 533. 
 
 '" Lyons v. Dc Pass (1840) 11 A. <<t E. 326; Clayton v, Lc Roy (1911) 
 2 K.B. 1031, 1042. 
 
 " Wilkinson v. King (1809) 2 Camp. 335. 
 
 •^ Case of Market Overt, sitf^ra ; Taylor v. Cliaiiihers (1604) Cro. 
 Jac. 68.
 
 152 m:ndors and purchasers, 
 
 nor is Smithiield for clothes,' or Cheapside for horses ;' 
 or Aldridge's for carriages;^ and whether a room or 
 building- in the City of London in which auction sales 
 are held is market overt is a question of fact in each 
 case/ 
 
 A sale in market overt is not valid if the purchaser 
 does not buv in good faith, or has notice of the seller's 
 defect of title, or if the goods sold belong to the 
 Sovereign ;^ or if the sale is made between sunset and 
 sunrise, or if the treaty for sale is not begun, continued 
 and completed in market overt.* The privilege afforded 
 by sale in market overt does not extend to gifts, or 
 pawns, ^ and if the original seller who sold without title 
 again acquires the goods after anv number of interven- 
 ing sales, the right of the original owner to recover the 
 goods revives/ A sale by sample is not a sale in 
 market overt* 
 
 Sale under Voidable Title. — AA^hen the seller of 
 goods has a voidable title thereto, but his title has not 
 been avoided at the time of sale, the buyer acquires 
 a good title to the goods provided he buvs them in good 
 faith and without notice of the seller's defect of title." 
 
 A voidable title arises under a contract induced by 
 fraud, duress, undue influence or other invalidating 
 cause." The same principle applies to a pledgor of 
 goods with a voidable title. Thus, where A buys goods 
 of B, and his title thereto is liable to be avoided bv B. 
 he may pass a good title to a pawnbroker C as against 
 
 ' L'Evesquc de Worcester' s Case (1594) Moore, 360. 
 
 - Ibid. 
 
 • Manier v. Banks (1867) 17 L.T. 147. 
 
 ' Clayton v. Lc Roy, supra. 
 
 "■ Willion V. Berkeley (1561) 1 Plowd. 223. 243. 
 
 ^ Hilly. Smith (1812) 4 Taunt. 533; Crane v. The London Dock 
 Company (1864) 5 B. & S. 313. 
 
 ■ 2 Inst. 713 ; Hartop v. Hoare (1743) 3 Atk. 44. 
 
 " 2 Inst. 713. 
 
 ^ Hill V. Smith, supra. 
 
 '" Sect. 23. 
 
 " See Ciindy v. Lindsay (1878) 3 App. Cas. 464; Moyce v. Newington 
 (1879) 4 Q.B.D. 32 ; and see Part I.. Chapter V. ante, pp. 61-82.
 
 EFFECTS OF THK CONTRACT. lo3 
 
 !>.' Where no conimct of sale exists, as where A 
 obtains gfoods from B on " sale or return " or 
 " approval," and A sells the goods to C before the pro- 
 perty in the goods has passed to A upon an actual sale, 
 the above rule has no application, and C obtains no 
 good title." 
 
 Revesting of Property in Stolen Goods on Con- 
 viction OF Offender. — (1) Where goods have been 
 stolen and the offender is prosecuted to conviction, the 
 property in the goods revests in the rightful owner, not- 
 withstanding an}- intermediate dealing with the goods, 
 whether by sale in market overt or otherwise. (2) But 
 where goods have been obtained by fraud or other 
 wrongful means not amounting to larceny (i.e., theft), 
 the propertv in such goods does not revest in the original 
 owner by reason only of the conviction of the offender.'' 
 
 Thus (1) If A has stolen goods from B, and sells them 
 to C, and if A is prosecuted to conviction, the stolen 
 goods revest in B (a) on A's conviction, if the Court 
 thinks the title to the goods is not in dispute, and 
 directs restitution at once; (b) on expiry of ten days 
 after conviction if Court has not made any direction as 
 in (a), and if there is no appeal ; (c) on dismissal of an 
 appeal against conviction, whether C bought the goods 
 from A in market overt or elsewhere. (2) If A has ob- 
 tained the goods from B by fraud or other means not 
 amounting to larcen\-. the property in the goods does 
 not revest in B merely because A is convicted." 
 
 Seller or Buyei^ in Possession after Sale. — (1) 
 Where a person having sold goods continues or is in 
 possession of the goods, or of the documents of title 
 to the goods, the delivery or transfer by that person, or 
 by a mercantile agent acting for him. of the goods or 
 documents of title under any sale, pledge or other 
 disposition thereof, to any person receiving the same 
 
 ' Whitchorn Bros. v. Duvison (1911) 1 K.B. 463 ; Ti/lcv v . lioxviiuui 
 (1910) 1 K.B. 745. 
 
 - Higgins \\ Burton (1857) 26 L.J. I-.x. 342: Ihinlimin v. Hootli 
 (1863) 1 H. & C. 803; Cuudy v. Limlsciy, supra ; Morrison \. Robert- 
 son (1908) Sess. Gas. 332. 
 
 ^ Sect. 24 ; and see Sect. 45 of the Larceny Act, 1916. 
 
 * See the Criminal Appeal Act, 1907, Sect. 6.
 
 154 VENDORS AND PURCHASERS. 
 
 in good faith and without notice of the previous sale, 
 shall have the same effect as if the person making the 
 deliver}'^ or transfer were expressly authorised by the 
 owner of the goods to make the same. (2) Where a 
 person having bought or agreed to buy goods obtains, 
 with the consent of the seller, possession of the goods 
 or the documents of title to the goods, the delivery or 
 transfer by that person, or by a mercantile agent actings 
 for him, of the goods or documents of title, under any 
 sale, pledge or other disposition thereof, to any person 
 receiving the same in good faith and without notice of 
 any lien or other right of the original seller in respect 
 of the goods, shall have the same effect as if the person 
 making the delivery or transfer were a mercantile agent 
 in possession of the goods or documents of title with 
 the consent of the owner. ^ 
 
 Thus, where A sells copper to B, forwarding a bill 
 of lading endorsed in blank, and a bill of exchange for 
 acceptance, and B, who is insolvent, does not accept the- 
 bill of exchange but transfers the bill of lading to X 
 in fulfilment of a contract to supply him with copper, 
 and X in good faith pays the price, A cannot stop the 
 copper in transitu;' and where A delivers a car to B- 
 under a hire-purchase agreement, by which the hire 
 amounts to £x pavable by twenty-four monthly instal- 
 ments, and B may purchase the car at any time within 
 the two years by paying a further sum of £y ; and" 
 B pledges the car with C, being at the time £z in arrears 
 with his instalments, A can sue C for conversion, for 
 B is not a person who has " agreed to buy " the car, 
 he has merely an option to purchase;^ but where B 
 agrees to buy a plot of land from A and also a car if 
 his solicitors approve the title to the land, and B gets- 
 the car without paying for it and then sells it to a 
 bond fide purchaser C, and B's solicitor afterwards 
 disapproves of the title to the land, C gets a good title to< 
 the car, for B "agreed to buy " it.* 
 
 * Sect. 25 ; reproducing Sects. 8 and 9 of the Factors Act, 1889. 
 
 2 Calm V. Pockctfs' Bristol Channel Coy. (1899) 1 Q.B. 643. 
 
 •' Bclsize Motor Supjyly Co. v. Cox (1914) 1 K.B. 244; cf. Whitcley 
 V. Hill (1918) 2 K.B. 808. 
 
 ' Marten v. Whale (1917) 2 K.B. 480.
 
 EFFECTS OF THE CONTRACT. 155 
 
 Effect of W'kits of Execution, — If the huycr lias, 
 at the time when he acquired his title to them, notice 
 that any writ of fieri facias {i.e., the usual form of execu- 
 tion for enforcing- the judgment of the Court), or any 
 other writ by virtue of which the goods of the seller 
 might be seized or attached, has been delivered' to and 
 remains unexecuted in the hands of the sheriff,* the 
 goods purchased by him are liable to seizure under such 
 writ.^ The writ binds the propertv in the goods of the 
 seller (the execution debtor) as from the time when it is 
 delivered to the sheriff to be executed, but does not 
 change the ownership ; the seller's transfer is therefore 
 valid, but the purchjiser takes the goods subject to the 
 rights of the creditor.' If, however, the purchaser had 
 no notice of the writ, his title to the goods is protected, 
 where he has acquired the goods in good faith and for 
 valuable consideration." 
 
 • See Harris v. Lloyd (1839) 5 M. & W. 432 : Hunt v. Hooper (1844) 
 12M.&W. 664; Withers v. Parker (1859) 4 H. & N. 524; Birstall 
 and Candle Coy. v. Daniels (190S) 2 KB. 254: .Ahiri^atroyd v Wright 
 (1907) 2 K.B. 333. 
 
 - "Sheriff" includes any officer charged with the enforcement of a 
 writ of execution : Sect. 20 (2). 
 
 ^ See Sect. 26 (l) of the Act. 
 
 ' Ibid. ; Payne v. Dreice (1804) 4 Kasf, 523 : Saniitel \ Duke (1S3S) 
 3 M. & W. 622 ; Woodland v. Fuller (1840) 11 A. & E. 859 ; MePhersoti 
 V. Teniiskannning Lumber Coy (1913) A.C. 145. 
 
 •'- See Ehlers v. Kauffinan (1884) 49 L.T. 806: Sect. 26 (1).
 
 CHAPTER III. 
 
 PERFORMANCE OF THE CONTRACT. 
 
 SiXTiON 1 — Obligations of Seller and Buyer in 
 
 General. 
 
 General Rule. — It is the duty of the seller to deliver* 
 the goods, and the buyer to accept* and pay* for them, 
 in accordance with the terms of the contract." The 
 performance necessary to discharge the contract must 
 be in strict accordance with the terms, unless a deviation 
 from the terms is excused by the circumstances." A 
 modification of performance by one parly at the request 
 of the other may be equivalent to the performance stipu- 
 lated for, so far as to preclude the latter party from 
 objecting to its sufficiency.* The parties may make what 
 bargain they please.'' Thus, where the buyer voluntarily 
 extends the stipulated time for deliver}^ of the goods at 
 the request of the seller, or the seller forbears delivery 
 from time to time at the request of the buyer, the delay 
 is excused and the deferred delivery or acceptance is 
 equivalent to performance of the contract.* And delivery 
 at a different place at the request of either party acceded 
 to by the other is a performance in discharge of the con- 
 tract.' 
 
 Delivery and Pay.ment are Concurrent Condi- 
 tions. — Unless otherwise agreed, delivery of the goods 
 and payment of the price are concurrent conditions, that 
 is to say, the seller must be iready and willing to give 
 possession of the goods to the buyer in exchange for the 
 price, and the buyer must be ready and willing to pay 
 the price in exchange for possession of the goods.* 
 
 ' These terms are defined infra. 
 
 ~ See Sect. 27. 
 
 •' Thomas v. Harrou-ing S.S. Coy. (1915) A.C. 58 ; Brandt & Co. v. 
 Morris (1917) 2 K.B. 784. 
 
 * See, generally, infra. 
 
 ■'■ Calcutta Coy. v. De Mattos (1863) 32 L.J. Q.B. 328, per Blackburn, 
 J 
 
 ''Ogle V, Vane (1867) 3 Q.B. 272; Plcvins v. Downing (1S76) 
 1 C.P.D. 220. 
 
 ' Leath&r Cloth Coy. \ , Hicroninins (1874) 10 Q.B. 140.
 
 PKKl-OU.M \N( i; OF THK t ONTKACT. 151 
 
 Similarly (idixcry of ilic ooods and acct-ptancc 
 thereof are concurrent conditions." Where ^roods are 
 dehverable by instahnents, tiie same concurrent con- 
 ditions prima facie exist witii reijard to each insial- 
 meni.' Thus, neither dehvery of the <4oods, nor jjav- 
 ment of the price, is a condition precedent to the other; 
 all that is necessary is that the parties should concur in 
 the joint act.' It is not necessary that the seller should 
 tender the goods, or that the buyer should tender tin- 
 price, in order to satisfy the condition sufficiently U> 
 maintain an action for not accepting and pa\ing for or 
 not delivering the goods.'' If, however, the contract 
 provides that payment shall be made after delivery, an 
 actual delivery and not mere readiness and willingness 
 to deliver, unless such delivery is waived or refused, is 
 a condition precedent to claiming the price.* wSimilarly, 
 if the contract provides that pavment shall be made 
 before delivery, an actual payment is a condition pre- 
 cedent to claiming the goods. Where goods are sold on 
 credit, and nothing is agreed upon as to the time of 
 delivery, the buyer is immediately entitled to possession 
 of the goods; but this right is lialjle to be defeated if the 
 louver becomes insolvent before he obtains jiossession.' 
 
 Shctiox 2 — Di:i.i\i:rv. 
 Delivery. — " Delivery " means voluntary transfer of 
 possession from one person to another.* A contract of 
 sale transfers the property in the goods; performance of 
 the contract involves transfer of possession of the goods, 
 according to the directions of the buyer. The delivery 
 may be made by any act of the seller or buyer which the 
 
 ' Sect. 28 ; Morton v. Lamb (1797) 7 T.R. 125. 
 ^ See, generally, cases cited infnr. 
 
 * Brandt v. Lawrence (187G) i (j.B.D. 344. 
 
 * See Pordagc v. Cole (1669) 1 Wras. Saund. ed. 1S71. p. 551 ; Rauson 
 V. Johnson (1801) 1 East. 203. 
 
 * Rawson v. Jo/mson, supra ; Laurence v. Knowles (1839) 5 Bing. 
 N.C. 399; Gibson v. Carruthers (1841) S M. & W. 321. 
 
 6 Spartali v. Beneckc (1850) 10 C.B. 212 : Staunton v. Wood (1851) 
 16 Q.B. 638. 
 
 ' Re Edwards (1873) 8 Ch. App. 289 ; Re Phcenix Steel Coy. (1876) 
 4 Ch.D. 108 ; Bloxam v. Sanders (1825) 4 B. & C. 948 ; cf. Chinery v, 
 Viall (1860) 29 L.J. Ex. 183. 
 
 •^ Sect. 62 (1).
 
 158 VENDORS AND PURCHASERS. 
 
 parties aoree shall be treated as delivery/ e.g., delivery 
 to a carrier." Delivery may be actual or constructive. 
 It is constructive when it is effected without any change 
 in the actual possession of the thing delivered, as in the 
 cases of attornment and symbolic delivery. Delivery 
 by attornment may take place in three classes of cases; 
 {a) the seller may be in possession of the goods, but after 
 sale he attorns to the buyer and continues in possession 
 as the buyer's bailee;^ {h) the goods may be in the 
 buyer's possession, as the seller's bailee, before sale, and 
 after sale he holds them on his own account;* (c) the 
 goods may be in the possession of a third person as the 
 seller's bailee, and after sale such third person attorns 
 to the buyer and continues to hold the goods as the 
 buver's bailee.^ The delivery of the key of a warehouse 
 in which the goods sold are stored is often spoken of as 
 symbolic delivery of the goods; it is really a transfer of 
 such control of the goods as the nature of the case 
 admits.* The transfer of a bill of lading has the same 
 effect as delivery of the goods themselves.^ 
 
 Place of Delivery. — Whether it is for the buyer to 
 take possession of the goods or for the seller to send 
 them to the buyer is a question depending in each case 
 on the contract, express or implied, between the parties. 
 Apart from any such contract, express or implied, the 
 place of delivery is the seller's place of business if he 
 have one, and if not, his residence ; provided that, if the 
 contract is one for the sale of specific goods which to the 
 knowledge of the parties when the contract is made are in 
 some other place, then that place is the place of delivery.' 
 
 ' See Castle v. Sxvorder (1860) 5 H. & N. 281. 
 - See Sect. 32 (l) ; and p. 168, post. 
 
 ■' Dublin City Distillery Coy. v. Doherty (1914) A.C. 828 ; Elmore v. 
 Stone (1808) 1 Taunt. 458 ; Marvin v. Wallace (1856) 25 L.J. Q.B. 369. 
 
 * See Cain v. Moore (1896) 2 Q.B. 283. 
 
 ■' See Sect. 29 (3); ^.\6l, post; and Farina v. Home (1846) 16 
 M. & W. 119. 
 
 6 See Pollock on Possession, p. 61 ; Ellis v. Hunt (1789) 3 T.R. 464 ; 
 Chaplin v. Rogers (1800) 1 East., 192. 
 
 ^ Sanders v. MacLean (1883) 11 Q.B.D. 327; Biddell Bros. v. 
 E. Clemens Horst & Co. (1911) 1 KB. 957 ; The Prinz Adelbert (1917) 
 AC. 589. 
 
 " Sect. 29 (1).
 
 PERFORMANCE OF THE CONTRACT. loU 
 
 Thus in the absence of any condition lo the contrarv. it 
 is prima facie the duty of' the buyer to take the j^niods, 
 and the seller's duty is fulfilled by his puttinj^ the *;^oods 
 at the buyer's disposal at the place of delivery,' Where 
 the buyer is to take the goods from the seller's land or 
 premises, the contract of sale impliedly confers on the 
 buyer a licence to enter upon the land or premises to 
 remove the goods.* Where goods are sold " ex quay or 
 warehouse " the place of delivery is within the option of 
 the seller, and it is a condition precedent to the buver's 
 liability to accept the goods that the seller should notify 
 the buyer of the phice of delivery.' The place of 
 delivery is within the buyer's option if the goods are 
 deliverable " f.o.b." (free on board) at a specified port; 
 it is his duty to name the ship/ An " f.o.b." contract 
 means that the seller is to put the goods on board at his 
 own expense on account of the person for whom thev are 
 shipped, and delivery is made and the goods are at the 
 buyer's risk from the moment the goods are put on 
 board.* In the case of a contract " ex ship," there is a 
 good delivery if, when the vessel has arrived at the port 
 of delivery, the seller pays the freight and supplies the 
 buyer with an effectual direction to the ship to deliver.' 
 
 Time of Delivery. — Performance must be completed 
 at or within the time stipulated; performance accepted 
 after the time operates in satisfacion of the breach and 
 not in pursuance of the contract. Where under the 
 contract of sale the seller is bound to send the goods to 
 the buyer, but no time is fixed for .sending them, the 
 
 ' See Woo J V. Tassel I (1844) 6 p.B, 234; Siiiitli v. Chance (1819) 
 2 B. & Aid. 753 ; Wilkinson v. Lloytl (1845) 7 Q.B. 27. 
 
 ■^ SeeCarringfon v. Roofs (1837) 2 M. & W. 248; Joties il- Co. v. 
 Tankerville {\909) 2 Ch. 440: Thomas v. Sorrell (1673) Vaugh. 330; 
 Wood V. Manlcy (1839) 11 Ad. & KI. 34 ; Marshall v. Green (1875) 
 1 C.P.D. 35. 
 
 ■'' Davies v. McLean (1873) 21 W.R. 264. 
 
 * Armitage v. Insole (1850) 14 Q.B. 728; Siitherhnul v. Allhusen 
 (1866) 14L.T. 666; Forrestt & Son v. Araniayo (1900) 83 L.T. 355: 
 Sharp V. Christmas (1892) 8 T.L.R. 687. 
 
 ' Brown v. Hare (1858) 3 H. & N. 484 ; Ogg v. Shnter (1875) 10 CP 
 159 ; Stock V. Inglis (1884) 12 Q.B.D. 564. 
 
 6 Yangtse Ins. Ass. v. Lakmanjec (1918) 34 T.L.R. 320; and see 
 Bidden Bros. v. E. Clemens Horst & Co. (1911) 1 K.B. 957 ; Ibid. 952 ; 
 (1912) A.C. 18; The Parchim (1918) A.C. 157. 164.
 
 160 VENDORS AND PURCHASERS. 
 
 seller is bound to send them within a reasonable time.* 
 What is a reasonable time is a question of fact 
 depending on the circumstances of the case, including 
 the place where the goods are when sold, their condition, 
 and the usage of any market, and any facts subsequently 
 causing delay without the seller's fault." Excessive delay 
 may operate in frustration of the buyer's adventure and 
 entitle him to refuse acceptance.^ 
 
 The parties may stipulate for delivery " directly," 
 " as soon as possible," " immediately," " on demand," 
 "on request," "on notice," "forthwith," "not later 
 
 than , " etc. What the parties intended by such 
 
 terms must be decided on the particular facts and on 
 a reasonable construction of the terms of the contract. 
 A reasonable time for delivery imports a more protracted 
 delay than a delivery " directly."* Delivery " as soon 
 as possible," may mean delivery " as soon as the sellers 
 can in fact deliver,"^ or it may mean " as soon as the 
 sellers could deliver if they were supplied with all 
 proper appliances and facilities for the speediest 
 delivery."* Delivery " on demand " or "on request " 
 or " on notice " or " immediately on demand," implies 
 that the seller is entitled to a reasonable time after 
 demand or notice-^ The term " forthwith " may mean no 
 more than " without loss of time " f and where delivery 
 is to take place " not later than " a specified date, 
 subject to an extension of time in the event of delay 
 from specified causes or "causes beyond the seller's 
 control," it is a question of fact whether any delay in 
 
 ^ Sect. 29 (2) ; Greaves v. Ashlin (1813) 3 Camp. 426. 
 
 2 Ellis V. Thompson (1839) 3 M. & W. 445 ; Ford v. Cotesworth 
 (1870) 5 Q.B. 544 ; Postlethwaite v. Freeland (1880) 5 App. Cas. 599; 
 De Waal v. Adlcr (1886) 12 App. Cas. 141 ; Carlton Coy. v. Castle Mail 
 Coj. (1898) A. C. 486; Hick v. Raymond (1893) A.C. 22; Jackson v. 
 Union Marine Insurance Coy. (1874) 10 C.P. 125. 
 
 ■^ Re Carver & Co. and Sassoon & Co. (1911) 17 Com. Cas. 59. 
 
 ' Duncan v. Topham (1849) 8 C.B. 225." 
 
 ■"' Attwood V. Emery (1856) 1 C.B. N.S. 110. 
 
 6 The Hydraulic Eng. Coy. v. McHaffie (1878) 4 Q.B.D. 670. 
 
 '' See Brighty v. Norton (1862) 3 B. & S. 305 ; Toms v. Wilson 
 (1862) 4 B. & S. 442 ; Moore v. Shelley (1883) 8 A.C. 285 ; Bach v. 
 Owen (1793) 5 T.R. 409 ; Bowdcll v. Parsons (1808) 10 East. 359 ; 
 Jones V. Gibbons (1853) 8 Ex. 920. 
 
 ** Staunton v. Wood (1851) 15 Q.B. 638 ; Roberts v. Brett (1865) 
 11 L.C. 337; Simpson v. Henderson (1829) M. & M. 300.
 
 PERFORMANCE OF THE CONTRACT. 161 
 
 a particular case may be excused.' Where the seller is by 
 express agreement entitled to suspend or cancel delivery 
 in some specified event, it is a question of fact and of 
 the construction of the contract whether the event has 
 happened.^ A postponement of delivery at the request 
 of the seller or the buyer, and acceded to by the other, 
 jmd which does not amount to a contract, is a mere for- 
 bearance by the one at the other's re(|ii('si, and either 
 may insist at any time upon his rights under the con- 
 tract." 
 
 Gooixs IX Possession oi-" Third Pkkson, — Where 
 the goods at the time of sale are in the possession of a 
 third person, there is no delivery by seller to buver 
 unless and until such third person acknowledges to the 
 buyer that he holds the goods on his behalf; but this 
 provision does not affect the operation of the issue or 
 transfer of anv document of title to goods.' The ack- 
 nowledgment required b)- this provision is an attornment 
 by the third person to the buyer, and is thus a construc- 
 tive delivery within the third class of cases already con- 
 sidered.^ It must be given by the third person with the 
 consent of both seller and buyer;* and if the third person 
 refuses such acknowledgment the buyer may repudiate 
 the contract.^ Both buyer and seller must each do what 
 is necessary to obtain the third person's acknowledg- 
 ment.* If the buyer is in default in this respect, the 
 
 ' Re Lockie v. Craggs (1901) 7 Com. Gas. 7 ; Matsoukis v. Pricstman 
 (1915) 1 K.B. 681. 
 
 2 Ford & Sons v. Lcetham (1915) 21 Corn. Gas. 55 : Role bow 
 Vaughan v. Compania Mincra (1916) 33 T.L.R. Ill; Ebbw Vale 
 Steel Coy. v. Macleod & Co. (1917) 33 T.L.R. 268; Tennants v. C. K 
 Wilson & Co. (1917) A.G. 495. 
 
 " Oglev. Vane (1868) 3 Q.B. 272; Hickman v. Haynes (1875) 10 
 G.P. 598; cf. Plcvins v. Downing (1876) 1 G.P.D. 220; Tyers v 
 Rosedale Iron Coy. (1875) 10 Ex. 195 ; Rarr v. Waldie (1893) 21 Rettie 
 224 ; Higgin v. The Puntplicrstonc Oil Coy. (1893) 20 Rettie 532. 
 
 * Sect. 29 (3). 
 
 "' See ante, p. 158, and cases cited in note 3 on that page. 
 « SeeGodfs v. Rose (1855) 17 G.B. 229; Poulton & Son v. Anglo- 
 American Oil Coy. (1911) 27 T.L.R. 216. 
 
 ^ Pattison v. Robinson (1816) 5 M. & S. 105. 110. 
 
 " Smith V. Chance (1819) 2 B. & Aid. 753 ; Winks v. Hassall (1829) 
 9 B. & G. 372; Bartlett v. Holmes (1853) 1 G.L.R. 159; Buddie v. 
 Green (1857) 27 L.J. Ex. 33. 
 
 11
 
 162 VENDORS AND PURCHASERS. 
 
 seller may treat the delivery as made.' If the seller is in 
 default, there is no delivery.^ As between the buyer and 
 seller, the onlv document of title that would appear to be 
 within the above proviso is a bill of lading, for a transfer 
 of this document per se transfers possession. All other 
 documents such as a wai^rant, delivery order, etc., 
 require an attornment by the bailee/ 
 
 Hour of Demand or Tender. — Demand or tender of 
 deliverv may be treated as ineffectual unless made at 
 a reasonable hour. What is a reasonable hour is a 
 question of fact.* 
 
 Expenses of and Incidental to Delivery. — Unless 
 otherwise agreed, the expenses of and incidental to 
 putting- the goods into a deliverable state must be borne 
 by the seller.* " Deliverable state " means such a state 
 that the buyer would under the contract be bound to 
 take deliverv.* As a general rule the expenses of and 
 incidental to making deliverv of the goods must be 
 borne by the seller; the expenses of and incidental to 
 receiving delivery, or incurred subsequently to delivery, 
 must be borne bv the buyer.'' In the case of an " f.o.b." 
 contract, the seller must defray the expenses of and up 
 to shipment;^ in the case of a " c.i.f." contract the 
 price payable bv the buyer includes the cost and 
 insurance and freight charges, and the seller must in 
 such a case defray the insurance and freight charges.' 
 
 ' Bartlctt V. Holmes, supra. 
 
 ^ Smith V. Chance, supra. 
 
 ^ See Farina v. Home (1846) 16 M. & W. 119; Lackington v. 
 Atherton (1844) 7 Man. & G. 360 ; Buddie v. Green, supra ; Bentall v. 
 Burn (1824) 3 B. & C. 423 ; Haig v. Wallace (1831) 2 Hud. & B. 671. 
 
 ^ Sect. 29 (4) ; and see Startup v. Macdonald (1843) 6 Man. &G. 593 
 
 ' Sect. 29 (5). 
 
 « Sect. 62 (4). 
 
 ^ Neillv. Whitworth (1865) 18 C.B. N.S. 435; (1866) 1 C.P. 684; 
 Playford v. Mercer (1870) 22 L.T. 41 ; Acme Wood Flooring Coy. v. 
 Sutherland Innes Coy. (1904) 9 Com. Cas. 170; Re Shell Transport 
 Coy. and Consol. Petrol Coy. (1904) 20T.L.R. 517 ; White v. Williams 
 (1912) A.C. 814; Stock v. Inglis (1884) 12 Q.B.D. 564. 
 
 " Cowasjee v. Thompson (1845) 5 Moo. P.CC. 165 ; Re Cock, ex p. 
 Rosevear China Clay Co. (1879) 11 Ch. D. 560 ; Stock v. Inglis, supra. 
 
 ^ Ireland v. Livingston (1872) 5 H.L. 395 ; Wancke v. Wingren 
 (1880) 58 L.J. Q.B. 519 ; Houlder Bros. & Co. v. Pub. Works Commr. 
 (1908) A.C. 276.
 
 PERFORMANCE OF THE CONTRACT. 163 
 
 Dkli\ KRv OF Wrong Quantity or of Mixkd Goods. 
 — Prima facie, every contract for a quantitv of goods is 
 an entire contract for that quantity.' The seller, therefore, 
 does not perform his part of the contract when he 
 delivers to the buyer a quantity of goods less than he 
 contracted to sell, and in such a case the buyer may reject 
 them, and the seller cannot claim the price under the 
 contract. But if the buyer accepts the goods so delivered, 
 he must pay for them at the contract rate." Conversely 
 the buver cannot call for a portion of the goods con- 
 tracted for without being ready and willing to accept the 
 whole.'' Where the deficiency in quantity is so small as 
 to be negHgible the court applies the maxim, de minimus 
 non curat lex (the law takes no account of trifles).* 
 
 There is likewise no performance of the contract by 
 the seller where he delivers goods in excess of the quan- 
 tity contracted for, and in such a case the bu\er may 
 accept the goods included in the contract and reject the 
 excess, or he may reject the whole.* If the buyer accepts 
 the whole of the goods so delivered he must pay for them 
 at the contract rate, except where the excess is trifling 
 and the seller does not insist on payment for the excess." 
 
 There is likewise no performance of the contract by 
 the seller where he delivers the goods he contracted to 
 sell mixed with goods of a different description not 
 included in the contract, and in such a case the buyer 
 
 ' Mefsey Steel & Iron Coy. v. Nay/or. Bcnzon & Co. (1884) 9 App. 
 Cas. 434. 439 ; Baldcy v. Parker (1823) 2 B. & C. 37 ; Bi^H v. Whisking 
 (1853) 14 C.B. 195. 
 
 - Sect. 30(1). Oxendale v. Wethcrcll (1829) 9 B. Sc C. 386; Col. 
 Inau.Coy.of N.Z.v. Adelaide Mar. Insii. Coy. (1886) 12 A.C. 128; 
 Waddington v. Oliver (1805) 2 B. & P.N.R. 61 : Renter v. Sala (1879) 
 4 C.P.D. 239; Braf<g v. Cole (1821) 6 Moore (C.P.) 114 ; Shipton v. 
 Casson (1826) 5 B. & C. 378; Richardson v. Dunn (1841) 1 Q B 218; 
 Morgan v. Gath (1865) 3 H & C. 748; Harland t- Wolff v. 
 Biirstall c'i Co. (1901) 84 L.T. 324. 
 
 •' Kingdom v. Co.v (1848) 5 C.B. 522; Champion v. Short (1807) 
 1 Camp. 53. 
 
 * Jack.-ion v. Rotax Motor, &c.. Coy. (1910) 2 K.B. 937 ; Harland & 
 Wolff V. Biirstall & Co., supra. 
 
 ■' Sect. 30 (2); Cross v. Eglin (1831) 2 B. & Ad. 106; Shipton, 
 Anderson & Co. v. Weil Bros. & Co. (1912) 1 KB. 574 ; Hart v. Mills 
 (1S46) 15 M. & W. 85 ; Cunliffe v. Harrison (1851) 6 Ex. 903 ; and see 
 Kingdom V. Cox (1848) 5 C. & B. 522 ; Champion v. Short (1807) 
 1 Camp. 53. 
 
 « Ibid ; and see Jackson v. Rotax Motor, iW-., Coy. (1910) 2KB. 937.
 
 164 VENDORS AND PURCH.'VSERS. 
 
 may accept the goods incliide(^ in the contract and reject 
 the rest or he may reject the whole.' If the buyer, 
 even inadvertently, consumes part of the mixed goods, 
 he must pav the value of the part consumed.^ 
 
 The terms of the contract may admit a margin of 
 quantity, as where expressions are used such as "about," 
 " more or less," " or any less quantity that may arrive," 
 " or such less quantity as may be required," " up to," 
 
 "about more or less," "not exceeding," "from 
 
 to barrels" or "bales," or "tins," "say 
 
 not less than," etc.^ The construction of such expres- 
 sions depends in each case upon the circumstances,* 
 Where the goods are otherwise ascertained and identified 
 such expressions are construed as an expectation or 
 estimate only, and not as a warrant of quantity/ But 
 they mav in particular cases import an absolute under- 
 taking to deliver at least or not more than that quantity.* 
 Evidence of usage is not in general admissible to explain 
 these or the like expressions in a contract ; because they 
 are expressions of ordinary use and meaning,'^ and the 
 court has refused to give effect to an interpretation clause 
 that the word " about " when used in reference to 
 quantity shall import a margin of 5 per cent, over or 
 
 * Sect. 30 (3) 'Levy v. Green (1859) 1 E. & E. 969 ; Jackson v. Rotax 
 Motor &c.. Coy. (1910) 2 K.B. 937; Nicholson v. Bradfield (1866) 1 
 Q.B. 620 ; Aitkcn, Campbell & Co. v. Boullen and Gatenby (1908) Sess. 
 Cas. 490. 
 
 ^ Nicholson v. Bradfield, supra. i 
 
 ^ See Cross v. Eglin (1831) 2 B. & Ad. 106 ; Bourne v. Seymour 
 (1855) 16 C.B. 337: Miller v. Bonier (1900) 1 Q.B. 691 ; McConnell v. 
 Murphy (1873) 9 C.P. 20; Beckh v. Page (1859) 5 C.B. N.S. 708: 
 Symes v. Hutlev (i860) 2 L.T. 509 ; Att.-Gen. v. Stewards & Co. (1901) 
 18T.L.R. 131;"Moo;'c v. Campbell (10 Exch. 323; Lomas & Co. v. 
 Barjf, Ltd. (1901) 17 T.L.R. 437 ; (1902) 18 T.L.R. 461 ; Tancred 
 Arrol & Co. v. Steel Coy. (1890) 15 App. Cas. 125; Hayward v. 
 Scougall (1809) 2 Camp. 56; Borrowman v. Drayton (1876)' 2 Ex.D. 
 15; McLay & Co. v. Perry & Co. (1881) 44 L.T. 152; Leeming v. 
 Snaith (1851) 16 Q.B. 275. 
 
 * See ibid, generally. 
 
 '' Barker v. Windle (1856) 6 E. & B. 675 ; Gibbs v. Gray (1857) 
 2 H. & N. 22 ; and cases supra. 
 
 '^ Leeming V. Snaith, supra ; Tamvaco v. Lucas (1859) 1 E, & E. 
 581 ; Graham v. Jackson (1811) 14 East. 498. 
 
 ^ Cross V. Eglin, supra.
 
 PERFORMANXK OK THi; CONTRACT. 1 05 
 
 under ilie specified quantity.' A contract for the sale 
 of a " cargo " is prima facie a contract for the entire 
 ladin<;- of the vessel on the particuhir voyage; and a 
 contract may be one for the sale of a cargo whether or 
 not that word is mentioned in the contract. " 
 
 Instalment Deliveries, — Since a contract tor a 
 quantity of goods is, prima facie, an entire contr.u t tor 
 that quantity,' complete delivery is prima facie a con- 
 dition precedent to the buyer's liability to pav the price," 
 whether it is agreed that delivery "may be made bv 
 instalments or not. Tnless otlierwise agreed, the bu\er 
 of goods is not boimd to accept, nor entitled to demand, 
 delivery by instalments,^ but an agreement to accept 
 delivery by instalments may, in the absence of express 
 agreement, be implied from the terms of the contract 
 or the circumstances of the case, as where go(xls are 
 deliverable " as recjuired " or on similar terms.* 
 Where there is no such implication acceptance of an 
 instalment by the buver is a waiver by him of any 
 objection that the goods w^ere not delivered as a w-hole.' 
 Where goods are deliverable b\- instalments it may 
 appear that the price is not payable imtil the whole of 
 the goods has been delivered ; in such a case the mere 
 receipt bv the biner of any one or more instalments 
 short of the whole is not an acceptance, and the instal- 
 ments may afterwards be returned if the whole (juantity 
 be not delivered,* provided the buyer has not, before 
 complete delivery, dealt with any one or more instal- 
 ments as owner,* or retained such instalments beyond 
 
 ' Re Harrison and Micks,' Lambert & Co. (1917) 1 K.B. 755 ; and see 
 Societe Anonyiiw L'Indiisfricllc Riisso-Belge v. Scholcfield (1902) 
 7 Com. Cas. 114. 
 
 - Borrowmanv. Drayton, supra ; Col. Insn. Coy of N ./.. v. Adelaide 
 Mar. Insn. Coy. (1886) 12 App. Cas. 12.S ; Ireland v. 'Livini^stone (1870) 
 5 Q.B. 516. 
 
 •' See Mer.ney Steel Coy. v. Naylor (1884) 9 A.C. 434. 
 
 ' See O.xcndale v. Wetherell (1829) 9 B. & C. 386 : Col Insn. Coy. of 
 N.Z. V. Adelaide Mar. Insn. Coy. (1886) 12 A.C. 128. 
 
 ■ Sect. 31 (1) ; Renter v. Sala (1879) 4 C.P.D. 239: Honck- v. Mnller 
 (1881) 7 Q.B.D. 92 ; Kingdom v. Cox (1848) 5 C.B. 522. 
 
 « Jackson V. Rotax Motor. &c.. Coy. (1910) 2 K.B. 937. 
 
 • Tarlinii v. O'Riordan (1878) 2 L.R.Ir. 82. 
 
 ^ O.xendale v. Wetherell, supra ; Waddiitgton \ . Oliver (1805) 
 2 B. & P.N.R. 61. 
 
 » Nicholson v. Bradfield (1866) 1 Q.B. 620.
 
 1G6 VENDORS AND PURCHASERS. 
 
 the time appointed for complete delivery, or otherwise 
 beyond a reasonable time for complete deliver)'^/ in 
 which cases he must pav for the goods dealt with or 
 retained at the contract rate.' 
 
 Under a contract to deliver goods in instalments, for 
 the purpose of deliver}' and acceptance each instalment 
 is deemed to be the subject of a separate contract; so 
 that the seller is bound to deliver and the buver to 
 accept each instalment duly demanded or tendered in 
 the course of performance of the contract.' An accept- 
 ance of previous instalments does not preclude the 
 rejection of subsequent instalments;'' nor does a failure 
 of delivery of subsequent instalments excuse non- 
 acceptance of previous instalments,^ but the buyer need 
 not accept any instalment where it is apparent at the 
 time of tender that the subsequent instalments would not 
 be delivered.* 
 
 Where the amount of the instalments is not specified 
 in the contract, it depends on the terms of the contract 
 and the circumstances of the case whether the instal- 
 ments must be distributed rateably over the period 
 appointed for delivery of the whole." If rateable instal- 
 ments are not contemplated, the amount of any instal- 
 ment tendered or demanded must be reasonable, having 
 regard to the time and circumstances of such tender or 
 demand and to the quantity contracted for and the 
 period specified for complete delivery.* If the seller has 
 the option of delivering the goods by instalments or 
 as a whole and elects to deliver them as a whole, and 
 the buyer rejects them as not being in accordance with 
 the contract, the seller may subsequently, in the absence 
 
 » Chanter v. Lccsc (1839) 5 M. & W. 698. 
 
 ■^ See Nicliolson v. Bmdficld, supra ; Cliatitcr v. Lccsc, supra ; 
 Clarke V. Wesfrope (1856) 18 C.B. 765; Oxcndalc v. WcthcreU. supra. 
 
 ■^ Jackson V. Rotax Motor, S-c, Cov. (1910) 2 K.B. 937; Brandt v. 
 Laurence (1876) 1 Q.B.D. 344; Renter v. Sala (1879) 4 C.P.D. 239; 
 Braithu-aitc v. Foreign Hardivood Coy. (1905) 2 K.B. 543. 
 
 * Jackson v. Rotax Motor, &c., Coy., supra. 
 
 * Brandt v. Laurence, supra. 
 
 '^ Ibid. ; Renter v. Sala, supra. 
 
 ■^ Calaniinos v. Dowlais Iron Coy. (1878) 47 L.J. Q.B. 575. 
 
 « Ibid. ; Coddington v. Paleologo (1867) 2 E.xch. 193.
 
 PERFORMANCE OF THE CONTRACT. 167 
 
 of a mutual intention to abandon the contract, tender 
 other goods or an instalment thereof.' 
 
 \^'here there is a contract for the sale of goods to be 
 delivered by stated instalments, which are to be separ- 
 ately paid for, and the seller makes defective deliveries 
 in respect of one or more instalments, or the buyer 
 neglects or refuses to take deliverv of or pay for one 
 or more instalments, it is a question in each case, 
 depending on the terms of the contract and the circum- 
 stances of the case, whether the breach of contract is 
 a repudiation of tiie whole contract or whether it is a 
 severable breach giving rise to a claim for compensa- 
 tion, but not to a right in the other party to treat the 
 whole contract as repudiated." The breach may consist 
 in an express refusal to perform the contract according 
 to its terms; or to an implied refusal, to be inferred 
 from the party's conduct; the test is whether the 
 conduct of one party to the contract is really incon- 
 sistent with an intention to be bound any longer by the 
 contract.'' A failure to perform a vital part of the con- 
 tract necessarily amounts to an implied repudiation; 
 and a breach is vital where it renders the performance 
 of the rest of the contract something .substantially 
 different from what the party not in fault contracted for.* 
 Whether a partial breach is a severable breach or a vital 
 one is a question of fact.* A default in delivering one 
 instalment may justify the buyer refusing that instal- 
 ment when tendered, but it does not necessarily justify 
 refusing future instalments, unless there is an express 
 or implied condition that the whole shall be delivered 
 according to contract. vSo a default, which does not 
 amount to a repudiation of the contract, in accepting 
 or paving for one instalment, does not discharge the 
 seller fro'm future deliveries, unless it is so stipulatetl.* 
 
 1 See Bonoxcman v. Free (187S) 1 O.l^.D. 500: Renter \. Sola (1879) 
 4 C.P.D. 239. 
 
 - Sect. 31 (2). 
 
 ■• Mersey Steel Coy. v. N<,ylor (1882) 9 Q.B.D. 648. 657. 670. 
 
 * Ibid. ; (1884) 9 App. Cas 434, 443 ; Beftini v. Gage (1876) 1 QB D. 
 1S3, 188. 
 
 ' See Millar's Karri, f^e.. Coy. v. We.Uhl (1909) 100 L.T. 128; 
 Cornwall v. Hensoit (1900) 2 Cli. 298. 
 
 « Honck V. Miiller (ISSl) 7 Q.BD. 92 : Mersey Steel Coy. v. Naylor. 
 supra; Panoutsos v. Raymond Hadley Corf>. (1917) 2 KB. 473.
 
 168 VENDORS AND PURCHASERS. 
 
 Where, however, the instalments are portions of. a 
 quantity which in its nature is an indivisible whole 
 (e.g., a machine deliverable in parts), or a full delivery 
 of the quantity contracted for is of the essence of the 
 contract, and the seller makes default in the delivery 
 of any instalment, the buyer may on returning any 
 instalments previously received, repudiate the contract 
 ab initio, and recover any part of the price paid.^ 
 
 Delivery to Carrier. — Apart from contract, express 
 or implied, the seller is not bound to send the goods 
 to the buver;^ but where in pursuance of a contract of 
 sale the seller is authorised or required to send the goods 
 to the buyer, delivery to a carrier, whether named by 
 the buyer or not, for the purpose of transmission to the 
 bu5'^er. is prima facie a delivery to the buyer;' the 
 carrier, for this purpose, being regarded as the bailee 
 of the person to whom and not by whom the goods are 
 sent.* But where the seller reserves the right of dis- 
 posal* or undertakes the delivery himself at a place 
 other than that where the goods are when sold,* the 
 carrier is the seller's agent, though the buyer takes the 
 risk of any deterioration in course of transit.^ Where 
 the buyer names a particular carrier there is no proper 
 deliverv unless and until the seller delivers to the 
 carrier so named.* The seller must duly follow any 
 instructions of the buver as to the mode of transmission 
 of the goods consistent with the terms of the contract. 
 If he fails to do so, the goods are at his risk during 
 the transit.' If the buyer's instructions are followed, 
 the risk is with the buver.'" 
 
 ^ Poussardv. Spiers (1876) 1 Q.B.D. 410; Clarke v. Dickson (1858) 
 E.B. & E. 148; Mersey Steel Cov- v. Navlor. supra ; Chanter v. Leese 
 (1839) 5 M. & W. 698. 
 
 ■^ See ante, p. 158 ; and Sect. 29 (l) of the Act. •' Sect. 32 (1). 
 
 •■ Badische Anilin Fabrik v. Basle Chemical Works (1898) A.C. 
 200; Dunlop V. Lambert (\8Zd>) 6 C\. & F. 600; Vale v. Bayle (1775) 
 
 1 Cowp. 294 ; Dawes v. Peck (1799) 8 T.R. 330 ; Wait v. Baker (1848) 
 
 2 Exch. ]. 
 
 •■' See Sect. 19 (1) ; ante, p. 147; Gabarron v. Krceft (1875) 10 Ex. 
 274 ; Wait v. Baker, supra. 
 
 ^ Dunlop V. Lambert, supra. 
 
 ' See Sect. 33; post, p. 169. " Vale v. Bayle, supra. 
 
 » Ullock V. Rcddelein (1828) Dan. & LI. 6. 
 
 "* Vale V. Bayle, supra.
 
 PERFORMANCE OF THE CONTR.\CT. 109 
 
 Unless otherwise authoiised 1)\ the I)u\im-, the seller 
 must make such contract witli tlie carrier on behalf of 
 the buyer as may be reast)nable, ha\in^ repircl to the 
 nature of the goods and the other circumstances of the 
 case. If the seller omits to do so, and the n^oods are 
 lost or damaged in course of transit, the l)uyer may 
 decline to treat the delivery to the carrier as a delivery 
 to himself, or may hold the seller responsible in 
 damages.' It is the seller's duty " to take the usual 
 and ordinary precaution ... to do whatever is 
 necessary to secure responsibility of the carriers for the 
 safe delivery of the goods and to put them into such a 
 course of conveyance as that in case of a loss the buyer 
 might have his indemnit\- against the carriers."' 
 
 Unless otherwise agreed, where g(X)ds are sent by the 
 seller to the buyer by a route involving sea transit, in 
 ■circumstances in which it is u.sual to insure, the seller 
 must give such notice to the buyer as may enable him to 
 insure them during their sea transit, and, if the .seller 
 fails to do so, the goods are deemed to be at his risk 
 during such transit.' This rule is excluded by the terms 
 of contracts " f.o.b.," "c.i.f." or "ex-ship."' 
 
 Risk Whkrk Goods Dki.ivkrkd at Distant Plack. 
 — Prima facie, where the seller agrees to deliver goods 
 at a particular place, he takes the risk of deterioration 
 during the transit, as the property does not pass till 
 delivery.' But by Section 33 of the Act, where the 
 seller agrees to deliver the goods at his own risk at a 
 place other than that where they are when sold, the 
 iDuyer must, unless otherwise agreed, take any risk of 
 deterioration necessarily incident to the cour.se of 
 transit.* The risk of cxccptiDual deterioration is im 
 the seller if he contracted to deliver the g(K)ds at their 
 
 ' Sect. 32 (2). 
 
 ■^ See C/(7rAv V. Hntcliins flSll) 14 East 475, per Lord ICllenborough. 
 ■C.J.. at p. 476. 
 
 •■' Sect. 32 (3). 
 
 •■ See Wimble v. Rosenber}> (1913) 1 K.U. 279. 
 
 "' See Calcutta Coy. v. De Mattos (1863) 32 L.J. Q.B. 322. 335: 
 Dinilop V. Lambert (1839) 6 CI. & P. 600, 621 ; Radischc Atiilin 
 Fahrik v. Rasle Chemical Works (1898) A.C. 200.207; Riilgwav v. 
 Ward (18S4) 14 g.B.D. 110, 119. 
 
 <■' See Bull v. Robinson (1S54) 10 E\ch. 342 (iron rusted in transit).
 
 170 VENDORS AND PURCHASERS. 
 
 destination, or has othenvise retained the right of 
 disposal of the goods; and is on the buyer if the goods 
 were merely to be sent off.^ 
 
 Section 3 — Acceptance. 
 
 Buyer's Right of Examining Goods. — Where goods 
 are delivered to the buyer which he has not previously 
 examined, he is not deemed to have accepted them 
 unless and until he has had a reasonable opportunity of 
 examining them for the purpose of ascertaining whether 
 they are in conformity with the contract." Unless other- 
 wise agreed, when the seller tenders delivery of the 
 goods to the buyer, he is bound to afford the buyer 
 a reasonable opportunity of examining the goods for 
 the purpose of ascertaining whether the}^ are in con- 
 formity with the contract.^ " No acceptance can be 
 properly said to take place before the purchaser has had 
 an opportunity of rejection," and " no complete and 
 final acceptance, so as irrevocably to vest the property 
 in the buyer, can take place before he has exercised or 
 waived that right " of inspection.* Thus the examina- 
 tion may be for the purpose of seeing whether the goods 
 agree with the description, or warranty, or that the 
 bulk corresponds with the sample.^ The right of inspec- 
 tion mav be waived by express agreement, course of 
 dealing or usage.* It is waived in the case of " c.i.f." 
 contracts, or in cases where payment is to be made in 
 exchange for the document of title.' 
 
 The time and place of deliverv is prima facie the 
 time and place for examination of the goods by the 
 
 ' See Badischc case, supra ; Dickson v. Zizinia (1851) 10 C.B. 602; 
 Crozier y. Aucrhach [1908) 2 K.B. 161; Beer v. Walter (1877) 46 L.J. 
 Q.B. 677; Burrows v. Smith (1894) 10 T.L.R. 246. 
 
 2 Sect. 34 (1) : see Sect. 15 (2) ; Heilbutt v. Hick-son (1872) 7 C.P. 
 438; Islierwood V. Whitmore (1842) 11 M. & W. 347; Clemens Horst 
 & Co. V. Bidden (1912) A.C. 18. 
 
 ■^ Sect. 34 (2). 
 
 ^ Borf Lead Mining Coy. v. Montague (1861) 10 C.B. N.S. 481. 
 
 ■' See Lorvmer v. Smith (1822) 1 B. & C. 1 ; Howe v. Palmer (1820) 
 3 B. & Aid. 321 ; Heilbutt v. Hickson. supra; Perkins v. Bell (1893) 
 1 Q.B. 193: Mellor v. Japing (1889) b5 T.L.R. 574; Chalmers v. 
 Paterson (1897) 34 Sc. L.R. 768. 
 
 ^ See Sect. 55. 
 
 ■^ Polenghi Bros. v. Dried Milk Cov. (1904) 92 L.T. 64; Clemens 
 Horst V. Bidden, supra; Castle v. Sworder (1860) 5 H. & N. 281; 
 (1861) 6 H. & N. 828 ; Khan v. Diichc (1905) 10 Com. Cas. 87.
 
 PERFORM ANCK OF THE CONTRACT. 171 
 
 buyer;' but each kase depends on its own liicuin- 
 stances,- for a latent defect may not be discoverable by 
 ordinary diligence in examination at the place of 
 delivery/ in which case the buyer may on a subsetjuent 
 inspection reject the goods if they are not in confor- 
 mity with the contract." A tender of goods not in con- 
 formity with the contract is not a final breach of the 
 contract, as the seller may still tender other goods in 
 accordance with the contract before the time of comple- 
 tion has elapsed.* 
 
 Whi:n Acci^ptaxck Taki:s I'laci;. — There can be no 
 acceptance before the right of rejection has been exer- 
 cised or waived/ The buyer cannot reject the goods the 
 property in which has passed to him. unless he is entitled 
 to take advantage of a condition subsequent;* but where 
 the property has not passed, or where, after the property 
 has passed, the buyer is entitled to take advantage of a 
 condition subsequent, the right of rejection arises/ 
 Where the right of rejection has not been exercised or 
 waived, acceptance takes place when the buyer intimates 
 to the seller, i.e., by written or spoken words,* that he 
 has accepted them.' Such an intimation is express. 
 Acceptance may also be implied from the bu^^er's con- 
 duct, where he does any act in relation to the goods 
 delivered to him which is inconsistent with the owner- 
 ship of the seller,'" as where he resells the goods," or 
 
 ' Perkins v. Bell (1893) 1 Q.B. 193. 
 
 - See Clemens Hoist v. Biddell (1912) A.C. 18 ; Hcilbiitt v. Hick-son 
 (1S72) 7 C.P. 438 ; Grimoldby v. Welts (1875) 10 C.P. 391 ; Moiling .''-■ Co. 
 V. Dean (1901) 18 T.L.R. 217. 
 
 ■'• Heilhiitt V. Hickson, supra \ Grimoldby v. Wells, supra. 
 
 * Borrowman V. Free {1878) 4 Q.B. D. 500 ; Tefley v. Sliaitd (1871) 
 25 L.T. 658; cf. Oath v. Lees (1865) 3 H. & C. 558; Aslimore v. Co.v 
 (1899) 1 g.B. 436. 
 
 ■'' Bog Lead Mining Coy. v. Montague (ISGl) 10 C.B. N.S. 481. 
 
 6 See Varley v, Whipp (1900) 1 Q.B. 513. 
 
 ^ Perkins v. Bell (1893) 1 Q.B. 193; Varley v. Whipp. supra. 
 
 " Abbot & Co. V. Wolsey (1895) 2 Q.B. 97. 
 
 " Sect. Z5: Saunders v. Topp (1849) 4 Exch. 390; cf. Varley v. 
 Whipp, supra. 
 
 '" Sect. 35. 
 
 1' Parker V. Palmer (1821) 4 B. & Aid. 387; Chapman v. Morton 
 (1843) 11 M. & W. 534; Harnorv. Groves (1855) 15 C.B. 667: Perkins 
 V.Bell, supra: Morton v. Tibbett (1850) 15 Q.B. 428; Chaplin \. 
 Rogers (1800) 1 East. 192.
 
 172 VENDORS AND PURCHASERS. 
 
 inspects them and sends them on to a sub-buyer,^ or 
 uses or otherwise deals with the goods as owner. ^ 
 Acceptance may also be implied where, after the goods 
 have been delivered to him, the buyer retains them and 
 delays rejection or is silent on the matter for an un- 
 reasonable time." What is an unreasonable time is a 
 question of fact, depending on the nature of the goods, 
 place of delivery, and the circumstances of the case 
 generall}^'* 
 
 Buyer not Bound to Return Rejected Goods. — 
 Unless otherwise agreed, where goods are delivered to 
 the buyer and he refuses to accept them, having the 
 right so to do, he is not bound to return them to the 
 seller, but it is sufficient if he intimates to the seller 
 that he refuses to accept them.^ 
 
 Before the passing of the Act, the rule was that the 
 buyer could reject the goods, either by giving prompt 
 notice of rejection, or by doing any unequivocal act 
 notifying his rejection ; and he was not bound to return 
 the goods, or to place them in neutral custody.* After 
 rejection of the goods, the buyer must act in relation to 
 them in a reasonable manner, but subject thereto, the 
 goods are at the seller's risk/ 
 
 Liability of Buyer for Neglecting or Refusing 
 Delivery. — When the seller is read}^ and willing to 
 deliver the goods, and requests the buyer to take 
 delivery, and the buyer does not within a reasonable 
 time after such request take delivery of the goods, he 
 is liable to the seller for any loss occasioned by his 
 neglect or refusal to take delivery, and also for a reason- 
 able charge for the care and custody of the goods. The 
 
 ' Perkins v. Bell, supra; Morton v. Tibbett, supra; Currie v. 
 Anderson, infra. 
 
 2 Parker v. Wallis (1835) 5 E. & B. 21 ; Wallis v. Pratt (1911) A.C. 
 304 ; Meehan v. Bow (1910) 47 Sc. L.R. 650. 
 
 ■' Morrison v. Clarkson (1898) 25 R. 427 ; Sharp v. Gt. W. Rlv. Coy. 
 (1841) 9 M. & W. 7 : Sanders v. Jameson (1848) 2 Car. & Kir. 557 ; 
 Bushel V. Wheeler (1844) 15 Q.B. 442; Nonnan v. Phillihs (1845) 
 14 M. & W. 277 ; Currie v. Anderson (1860) 2 E. & E. 592. 
 
 * See Sect. 56. 
 
 •^ Sect. 36. 
 
 « Grimoldhy v. Wells (1875) 10 C.P. 391. 
 
 ^ Okell V. Smith (1815) 1 Stark. 107.
 
 i'i:rfoum.\nck of the contract. IT^i 
 
 rights of the seUer, where the neglect or refusal of the 
 buyer to take delivery amounts to a repudiation of the 
 contract, remain unafl'ected by this provision.' The 
 seller, of course, cannot charge for custody where he 
 detains the goods against the buxer's will in ex«-rcise of 
 his right of lien." I'nder lliis provision dilliculties of 
 construction may .sometimes arise, as it implies that the 
 buyer's neglect or refusal to take delivery within a 
 reasonable time does not necessarily amount to a repu- 
 diation of the contract, whereas such default is, as a 
 rule, regarded as being default extending to the utmost 
 limits allowed b\" law.^ 
 
 ' Sect. 37 ; and see Greaves v. Ashlin (1813) 3 Camp 426 ; Somes v. 
 Brit. Empire Shipping Coy (1860) S H.L.C. 338 ; Hartley v. Hitchcock 
 (1816) 1 Stark. 408. 
 
 ^ Somes V. BE. Shipping Coy., .supra. 
 
 •^ See Hou-e v. Smith (1804) 27 Ch.D 89, 105; Jone.s v. Gibbous 
 (1853) 8 Exch. 920.
 
 CHAPTER IV. 
 
 RIGHTS OF UNPAID SELLER AGAINST THE 
 
 GOODS. 
 
 Section 1 — In General. 
 
 Definition. — The seller of goods is deemed to be an 
 ■" unpaid seller " within the meaning of the Act : 
 (a) when the whole of the price has not been paid or 
 tendered; (5) when a bill of exchange or other negotiable 
 instrument has been received as conditional payment 
 and the condition on which it was received has not been 
 fulfilled by reason of the dishonour of the instrument or 
 otherwise. And the word " seller " includes any person 
 who is in the position of a seller, e.g., an agent of 
 the seller to whom the bill of lading has been endorsed or 
 a consignor or agent who has himself paid, or is directly 
 responsible for the price. ^ 
 
 Unpaid Seller's Rights. — Subject to the provisions 
 of the Act," and of any statute in that behalf,^ notwith- 
 standing that the property in the goods may have passed 
 to the buyer, the unpaid seller of goods, as such, has, 
 by implication of law : (a) a lien on the goods (or right 
 of retention) to retain them for the price while he is in 
 possession of them ; (b) in case of the insolvency of the 
 buyer a right of stopping the goods m transitu after he 
 has parted with the possession__ of them ; (c) a right of 
 re-sale as limited by the Act. Where the property in 
 the goods has not passed to the buyer, the unpaid seller 
 has, in addition to his other remedies, a right of with- 
 holding delivery similar to and co-extensive with his 
 rights of lien and stoppage in transitu where the property 
 has passed to the buyer.* 
 
 Conditions Precedent to Existence and Exercise of 
 Rights. — On a contract of sale, as we have seen, the 
 
 > Sect. 38. 
 
 2 See Sects. 25 (l) and (2) ; 41-43 ; 44-46 ; 48 ; 55 ; and see post. 
 
 " Sects. 8-10 of the Factors Act. 1889 ; see Appendix B, 111. post. 
 
 " Sect. 39.
 
 RIGHTS OF UNPAID SELLER. 17n 
 
 right of pr<>i)('rty in the goods passes to ilir hiiyrr. 
 Prima facie, the right of possession also passes at the 
 same time. In the absence of conditions to the contrary, 
 the parties are presumed to contract on the footing that 
 the seller is to receive the price when he parts with the 
 goods.' But the parties may make what bargain the\ 
 please, and the buyer's right of possession or tlie seller's 
 right to payment of the price may be defeasible on the 
 non-performance of conditions precedent imp<ised bv 
 the terms of the contract.' The price may, by agree- 
 ment, be payable before the goods are delivered, or the 
 goods may be sold on credit, in which latter case, the 
 buyer is entitled to immediate possession of the goods 
 and to pay for them at some future time. 
 
 If the goods have passed into the buyer's possession, 
 all rights of the unpaid seller against the goods are gone ; 
 his only remedy in such a case is by jDersonal action." 
 But if the .goods have not been delivered to the buyer, 
 they are either in the actual possession of the seller 
 whether as seller or as the buyer's agent or bailee (and 
 possession by the seller's agent or bailee amoimts to the 
 same thing), or they are in course of transit for delivery 
 to the bu\er and thus in the actual possession of neither 
 party. The existence and exercise of the seller's rights 
 against the goods thus depend on the conditions pre- 
 cedent; {a) that a right to payment in respect of the 
 goods has not been discharged by the buyer;* and 
 (b) that the goods have not passed into the uncontrolled 
 possession of the buyer.'* 
 
 Distinction between Unpaid Seller's Various 
 Rights. — Though the right of lien and of stoppage in 
 transitu are analogous, they are in certain respects 
 governed by different considerations." The seller's lien 
 
 ' See Sects. 28. 29; Morto)i v. Lamb (1797) 7 T.R. 125 ; and uiite. 
 pp. 156, 157. 
 
 2 SeeBloxani v. Sanders (1825) 4 B. & C. 941 : /;.v />. Chaltiicrs 
 (1873) 8 Ch. 289 ; Morgan v. Bain (1874) 10 C.P. 15. 
 
 ■'' See Sect. 49 ; and p. 199, post. 
 
 * See Raift v. Mitchell (1815) 4 Camp. 146. 150. 
 
 ■' See Milgafe v. Kcbble (1841) 3 M. & G. 100: Ex p. WillougUby 
 (1881) 16 Ch.D. 604 ; Gt. Eastern Rly. v. Low's Trustee (1908) 2 K li 
 54 ; (1909) A.C. 109. 
 
 6 See Blackburn on Sale, p. 308; t/. Bolton v. L. f- Y. Rly. Coy. 
 '(1866) 1 C.P. 439.
 
 176 VENDORS AND PURCHASERS. 
 
 attaches when the buyer is in default whether he is 
 solvent or insolvent, and only where the actual posses- 
 sion of the goods is in the seller. The right of stoppage 
 in transitu arises only when the buyer is insolvent, and 
 the seller's lien is gone, for it pre-supposes that the seller 
 has parted with the possession as well as the property in 
 the goods. 
 
 A true lien can only be exercised tipon the property 
 of another. Where the propertv in the goods has not 
 passed to the buyer, the seller has the analogous right, 
 sometimes described as quasi-lien, that of withholding 
 delivery of the goods. This right, being co-extensive 
 with the rights of lien and stoppage in transitu, arises 
 when the price is due and unpaid, or the buyer becomes 
 insolvent. 
 
 The exercise of the rights of lien, stoppage in tratisitu, 
 and withholding delivery, does not affect the right 
 of property in the goods, but the exercise of the right 
 of re-sale, as limited by the Act, effects a transfer of the 
 right of property in the goods to the second buyer. ^ 
 
 Instalment Contracts. — Every contract of sale is 
 prima facie, an indivisible or entire contract for the 
 quantity of goods ordered, even though the goods may 
 be deliverable by instalments; and in such a case the 
 buyer is not entitled to the possession of any part of the 
 goods unless he is ready and willing to accept and pay 
 for the whole,^ and the unpaid seller's rights then extend 
 over every part of the goods not in the buyer's posses- 
 sion for the price unpaid.^ But if the parties have agreed 
 that each instalment shall be treated as a separate con- 
 tract, the seller's rights are apportionable accordingly. 
 And even where there is no such provision, when the 
 instalments are to be separately paid for, the contract 
 will be treated as apportionable, so that the seller cannot 
 retain the instalments paid for by reason of the non- 
 payment of the price of the remainder of the goods ;* 
 though, on the buyeir's insolvency, any instalment 
 
 ' See post, p. 195 et scq. 
 
 " See Sect. 28 ; and ante. p. 165. 
 
 ■'' Ford V. Baynton (1832) 1 Dowl. P.C. 357 ; Wentworflt v. Outhwaite 
 (1842) 10 M. & W. 436 ; Ex p. Chalmers (1873) 8 Ch. 289. 
 
 * Merchants' Banking Coy. v. Phoenix Steel Cov. (1877) 5 Ch.D. 
 205.
 
 Kiciirs oi-- I \i'\ii) ^11 I.IK. 177 
 
 iinjiaid for may be reiaincd until the price for that instal- 
 ment and any other insiahiieni previously delivered is 
 paid.' 
 
 Section 2 — Untaii) Si:li.i:k's Likn. 
 
 Whi:n' Iaks Exists. — Suhjeci to the provisions of 
 the Act," the unpaid seller who is in possession of the 
 g^oods is entitled to retain possession of them until 
 payment or tender of the price : (a) where the <i^()(>ds 
 have been sold without any stipulation as to credit; 
 (6) where the <^oods have been sold on credit, but the 
 term of credit has expired; (c) where the buver becomes 
 insolvent. The seller may exercise his ri^^ht of lien 
 notwithstanding- that he is in possession of the goods as 
 agent or bailee or custodier for the buyer.' 
 
 A lien in general is a right of retention of property 
 until a debt due to the person retaining the property has 
 been satisfied.' In the case of a sale of goods, it extends 
 only to the price and not to charges incurred in course 
 of detention,^ for such detention is for the sole benefit 
 of the seller exercising the right. But the parties may 
 agree that certain charges, such as customs duties, mav 
 be treated as part of the price, in which case the lien will 
 attach in respect of them.' 
 
 Where no Stipulation as to Ciu:i)It. — " The 
 general rule of law^ is, that where there is a sale of 
 goods, and nothing is specified as to delivery or pay- 
 ment, although everything may have been done so as 
 to devest the property out of the vendor, and so as to 
 throw upon the vendee all risk attendant upon the goods, 
 still there results to the vendor out of the original con- 
 tract a right to retain the goods until payment of the 
 price. ^ 
 
 • Exp. Chalmers (1873) 8 Ch. 289. 
 - See Sects. 42. 43 (1). 47. 55. 
 
 '■' Sect. 41. 
 
 * See Hamttiomis v. Barclay (1802) 2 East. 235. 
 
 ' Somes V. The British Empire Shipping Coy. (1860) 8 H.L C. 338 , 
 Hartley v. Hitchcock (1816) 1 Stark. 408. 
 8 Winks V. H assail (1829) 9 B. & C. 372. 
 
 ^ Miles V. Gorton (1834) 2 C. & M. 504, per Bay ley. B.. at p. 51 1 
 
 12
 
 178 VENDORS AND PURCHASERS. 
 
 Where Goods Sold on Credit. — The seller's lien, 
 which was waived by the grant of credit, revives upon 
 the e.\piration of the term of credit, even though the 
 buyer is not insolvent, if the goods remain in the seller's 
 possession till the credit has expired.' 
 
 Insolvency of Buyer. — Where the goods are in the 
 seller's possession, the rule that the lien attaches on the 
 buyer's insolvency applies whether credit has been given 
 or not and whether insolvency occurs during the period 
 of credit.^ The buyer is deemed to be insolvent for this 
 purpose when he has either ceased to pay his debts in 
 the ordinary course of business, or cannot pay his debts 
 as they, become due whether he has committed an act 
 of bankruptcy or not, and whether he has become a 
 notour bankrupt^ or not.^ 
 
 Where Seller is Buyer's Bailee. — At common law, 
 where the seller had attorned to the buyer, i.e., had 
 agreed to hold the goods sold as the buyer's agent, the 
 lien was gone, for it had been waived." But if the 
 buyer became insolvent, the lien revived, for the law 
 would not compel the seller to deliver the goods to an 
 insolvent buyer.® If the buyer is solvent, he can, of 
 course, call upon his agent, the seller, to deliver the 
 goods, for in such a case there is no right of lien which 
 the seller may exercise.^ 
 
 Part Delivery. — Where an unpaid seller has made 
 part delivery of ihe goods, he may exercise his right 
 of lien on the remainder, unless such part delivery has 
 
 ^ See New v. Swain (1828) 1 Dans. & L. 123 ; Bunney v. Poyntz 
 (1833) 4 B. & Ad. 568. 
 
 '■^ Bloxam v. Sanders (1825) 4 B. & C. 941 ; Miles v. Gorton (1833) 
 2 C. & M. 504; Grice v. Richardson (1877) 3 A.C. 319; Griffiths v. 
 Perry (1859) 1 E. & E. 680 ; Gunn v. Bolckow, Vaughan & Co. (1875) 
 10 Ch. App. 491 ; and see Re Nathan (1879) 10 Ch.D. 586. 
 
 ^ A Scotch term denoting a person who is not only bankrupt, but 
 whose insolvency is made known to the public by steps of legal diligence 
 having been taken against him for the recovery of debts. 
 
 * See Sect. 62 (3) ; and Re Phoenix Steel Coy. (1876) 4 Ch.D. 108. 
 '^ See Cusack v. Robinson (1860) 1 B. & S. 299, per Blackburn, J., at 
 p. 308 ; Baldey v. Parker (1823) 2 B. & C. 37, 44. 
 
 <> Giinnv. Bolckow, Vaughan & Co. (1875) 10 Ch. 491, ^cr Mellish, 
 L, J., at p. 501 ; Townley v. Crump (1836) 4 A. & E. 58 • Grice v. 
 Richardson (1877) 3 A.C. 319. 
 
 ' See Bloxam v. Sanders (1825) 4 B. & C. 941.
 
 RIGHTS OF UNPAID SKLLER. 179 
 
 been made in such circunistanct's as to show an aj^ree- 
 nirnt to waive the lien.' The common law rule was that 
 a delivery of part of the goods sold is not equivalent to 
 a delivery of the whole, so as to destroy the vendor's 
 lien." The seller may, if he chooses, give up part anil 
 retain the rest; and then his lien will attach to the part 
 retained in his possession for the prirf:e of the whole." 
 The fact that the goods are in the seller's own possession 
 is important to show that a part delivery is not intended 
 as a ct)nsiruciive delivery of the whole.* But there mav 
 be circumstances suflFicient to show that there was no 
 intention to separate the part delivered from the remain- 
 der, and then the delivery of part operates constructively 
 as a delivery of the whole and puts an end to the vendor's 
 possession and conseqiientlv to his lien.' Thus, if goods 
 are deliverable by instalments, which are not to be 
 separately paid for, no lien exists. An agreement to 
 waive the lien may be inferred where the part delivery 
 is of an essential part of the whole, e.g., an essential 
 part of a machine;* or where the character of the person 
 taking delivery, or the object for which it is taken, is 
 such as to show a common intention to treat the part 
 deliverv as a delivery of the whole, ^ or where the part 
 delivery takes place in circumstances showing that the 
 seller's agent in possession of the goods has acknow- 
 ledged to the buver that he holds the goods on his 
 behalf.-* 
 
 Tf.rmixation of Lien. — The unpaid seller of goods 
 loses his lien thereon : {a) when he delivers the goods to 
 a carrier or other bailee or custodier for the purpose of 
 transmission to the buyer without reserving the right of 
 
 ' Sect. 42 ; and see Biittncv v. Poyntz (1833) 4 B. & Ad. 568 ; Tatmcr 
 V. ScovcU (1845) 14 M. & W. 28: Dixon v. Yates (1833) 5 B. & Ad. 
 313 ; Re McLaren (1879) 11 Ch.D. 68. 
 
 2 See Kcmpw Falk (1882) 7 A.C.. per Lord Blackburn at p. 5S6 ; 
 Re McLaren, supra. 
 
 ' See ante, p. 176- 
 
 * Miles V. Gorton (1834) 2 Cr. & M. 504. 510. 
 
 ■^ See Benjamin on Sale, p. 971. 
 
 ^ Re McLaren, supra, at p. 75, per Cotton, L J. 
 
 " Jones V. Jones (1841) 8 M. & W. 431. 
 
 ** Hammond v. Anderson (1803) 1 Bos. & P. N.R. 69; and see 
 Re Kicll (1880) 14 Ch.D. 446. 456 ; Re McLaren, supra, at p. 74.
 
 180 VENDORS AND PURCHASERS. 
 
 disposal of the goods ; (6) when the buyer or his agent 
 lawfully obtains possession of the goods; (c) by waiver. 
 The unpaid seller, having a lien, does not lose his lien 
 by reason only that he has obtained judgment or decree 
 for the price of the goods. ^ 
 
 A delivery to a carrier for conveyance to the buyer 
 is, as a rule, such a delivery of actual possession to the 
 buyer through his agent, the carrier, as suffices to put 
 an end to the seller's lien." But if the seller undertakes 
 to deliver the goods to the buyer at their destination, 
 the carrier is then the seller's agent. ^ The seller may 
 also reserve the right of disposal, as where on shipment 
 of goods he takes a bill of lading making the goods 
 deliverable to the order of himself or of his agent/ It 
 is only by the endorsement and deHvery of the bill of 
 lading that a symbolical delivery of the cargo is effected.* 
 And the seller's lien is not lost by sending goods on 
 board a vessel, even where delivery is made f.o.b. to the 
 buyer, if the seller on delivery to the ship takes or 
 demands a receipt for the goods in his own name ; for 
 such a receipt entitles him to the bill of lading, and the 
 goods are therefore still in his possession.* But the 
 possession of such a receipt is not conclusive, as the 
 general rule may be excluded by the terms of the con- 
 tract, or custom or usage. ^ 
 
 Where at the time of the contract the goods are in the 
 possession of the seller's agent,* the lien is lost when the 
 agent with the consent of the seller acknowledges to the 
 
 ' Sect. 43 ; and see Houhiitch v. Desanges (1818) 2 Stark. 337 ; 
 Scrivener v. Gt. Northern Rlx. Coy. (1871) 19 W.R. 368; but see 
 Jacobs V. Latonr (1828) 5 Bing. 130. 
 
 ■' Ellis V. Hunt (1789) 3 T.R. 464 ; Dau'cs v. Peck (1799) 8 T.R. 330 ;- 
 Wait V. Baker (1848) 2 Ex. 1 ; Diinlop v. Lambert (1838) 6 CI. & F. 
 600. 
 
 •' See Dunlop w Lambert, supra ; Badischc Fabrik v. Basic 
 Chemical Works (1898) A.C. 200. 
 
 * See Sect. 19 (2) ; and ante, p. 147 ; Wait v. Baker, supra. 
 
 ■' See Wait v. Baker, supra ; Sanders v. Maclean (1883) 11 Q.B.D. 
 341. 
 
 G Craven v. Ryder (1816) 6 Taunt. 433 ; Ruck v. Hatfield (1822) 
 5 B, & Aid. 632 ; Thompson v. Trail (1826) 6 B. & C. 36. 
 
 ^ Cou-asjee v. Thompson (1845) 5 Moo. P.C. 168. 
 
 '^ See Sect. 41 ; and p. 177 ante.
 
 Kiciiis ()i- I \i'\ii> sf.i.i.i:r. LSI 
 
 buyiT tliat he liolds tin- i^ootls on his hch.ilf.' If at ihc 
 time of the contract the <^oocls arc in thr possession of a 
 third person, not the seller's aj^ent, the hen is lost when 
 the seller puts the Lioods at the hiiver's disposal, so that 
 the buyer is able, without interference by a third person, 
 to lake possession of the j^oods." And where the jj^oods 
 are in the possession of the buNcr or the seller's aj^ent or 
 bailee, there is nothinj^ to j)revent the parties from 
 enterin<x into a contract of sale wherebv the seller's lien 
 is lost;' but in such circumstances, the contract may 
 contain a stipulation that the buver's possession shall 
 continue to be that of a bailee for the seller until the 
 price is paid, or that the seller may retaUe the <2^oods/ 
 As the lien exists solely for the purpose of securinjx 
 payment of the price, it follows that a tender of the 
 price puts an end to ilu- lien, eyen thoujjh the seller 
 declines to receiye the nione\-.' A lien onci' lost is not 
 reyested by the fact that the seller afterwards obtains 
 possession of the goods;* possession must be obtained 
 ^vith an intention on the part of the buyer that the lien 
 shall reyest/ 
 
 \V.\iyi:R OF Lii:n. — The seller's lien ma\- be waived 
 expressly, or by implication. It is waiyed bv implica- 
 tion where the terms of ihe contract show that it was not 
 contemplated by the parties that the seller should retain 
 the goods until payment of the price or where the 
 
 ' Hannan v. Anderson (1809) 2 Camp. 243; Hcntnll v. Hum (1824) 
 3 B. & C. 423 ; LackinHton v. A the it on (1844) 7 M. & G. 300 ; Farina 
 V. Home (1846) 16 M. & W. 119 : Godts v. Rose (1855) 17 CM. 229; 
 Grigg V. N,it. Guard. Assce. Coy. (1891) 3 Ch. 206: cf. Poulton v. 
 Angio-Ai'>ier. Oil Coy. (1911) 27 T.L.R. 216. 
 
 ■' Tansley v. Turner (1835) 2 Bing. N.C. 151 : Cooper v Hill (1865) 
 3 H. & C. 722; and see Marshall v. Green (1875) 1 C.P.D. 35. 
 
 ■^ Cain V. Moon (1896) 2 Q.B. 283 ; Kilpin v. Ratley (1892) 1 Q.B. 
 
 582. 
 
 * See Dodslev v. Varley (1840) 12 A. Sc E. 632 ; Richards v Syinons 
 (1845) 8 Q.B. 90 ; and Sect. 55 of the Act. 
 
 •^ Martindale v. Smith (1841) 1 Q.B. 389. 
 
 « Jacobs V. Latonr (1828) 5 Bing. 130 ; Valpy v Gihson (1847) 4 C.B. 
 
 837. 
 
 ' Valpy V. Gihson, supra ; Jones v. Pearle (1723) 1 Stra. 556: Jones 
 V. r/n<»-/oe (1723) 8 Mod. 172: Hartley v. Hitchcock (1816) 1 Stark. 
 408; Siveet v. Pint (1800) 1 East. 4.
 
 182 VEXDORS AND PURCHASERS. 
 
 circumstances show that the goods are sold on credit;^ 
 or where the seller takes from the buyer a bill of 
 exchange or other security payable at a future day, 
 which is inconsistent with the existence of the lien ;' or 
 where the seller repudiates the contract by wrongfully 
 refusing or rendering himself unable to deliver the 
 goods/ or deals with them in a manner inconsistent with 
 a mere right of possession, as by consuming them ;* or 
 where the seller claims to keep the goods on some other 
 ground than upon his right of lien/ 
 
 Section 3 — Stoppage ix Transitu. 
 
 When Right Exists. — Subject to the provisions of 
 the Act/ when the buver of goods becomes insolvent, 
 the unpaid seller who lias parted with the possession of 
 the goods has the right of stopping them in transitu, 
 that is to say, he may resume possession of the goods 
 as long as they are in course of transit, and may retain 
 them until payment of the price. ^ 
 
 The right of stoppage in transitu arises solelv when 
 the seller has parted with the possession of the goods, 
 and the goods are in course of transit to the buyer, i.e., 
 they are in the possession Qf the carrier as the buyer's 
 agent.*' It arises solely upon the insolvency of the 
 
 1 See R. V. Jones (1898) 1 Q.B. 219; Sparfali v. Bencckc (1850) 10 
 C.B. 212; Ford v. Yates (1841) 2 M. & G. 549; Lockett v. Nicklin 
 (1848) 2 Ex. 93 ; Greaves v. Ashlin (1813) 3 Camp. 426 ; cf. Godts v. 
 Rose (1855) 17 C.B. 229 ; Field v. Lelean (1861) 6 H. & N. 617. 
 
 - Hewison v. Guthrie (1836) 2 Bing. N.C. 755; Horncastle v. 
 Farran (1820)3 B. & Aid. 497; Alsagerv.St. Katherine's Dock Cox- 
 (1845) 14 M.&W. 794; Angus v. McLachlan (1883) 23 Ch.D. 330; 
 Bank of Africa v. Salisbury Gold Mining Coy. (1892) A.C. 281. 
 
 ■'• Jones V. Tarleton (1842) 9 M. & W. 675 ; Kerford v. Mendel (1859) 
 28 L.J. Ex. 303 ; Davies v. Vernon (1844) 6 Q.B. 443; Joiu\s v. C//# 
 (1833) 1 C. & M. 540; Gurr v. Cuthbert (1843) 12 L.J. Ex. 309; 
 Mullincr v. Florence (1878) 3 Q.B.D. 484. 
 
 * Gurr V. Cuthbert, supra ; Mulliner v. Florence, supra. 
 
 ■' Boardman v. Sill (1808) 1 Camp. 410 ; Youngniann v. Bricseinann 
 (1893) 67 L.T. 642; White v. Gainer (1824) 2 Bing. 23; Cannec v. 
 Spanton (1844) 8 Scott. N.R. 714; Weeks v. Goode (1859) 6 C.B. N.C. 
 367 ; Mo r ley v. Hay (1828) 3 Man. & Ry. 396. 
 
 " See Sects. 45-48 (1) ; and infra. ■ Sect. 44. 
 
 8 Kendall v. Marshall (1883) 11 Q.B.D. 356 ; James v. Griffin (1836) 
 
 1 M. & W. 20; cf. Hawes v. Wat.son (1824) 2 B. & C. 540; Stovcld v. 
 Hughes (1811) 14 East. 302; Moakes v. Nicholson (1865) 19 C.B. N.S. 
 290; Cahn v. Pockctt (1899) 1 Q.B. 643; McEican v. Smith (1849) 
 
 2 H.L.C. 309; Kinloch v. Craig (1790) 3 T.R. 783.
 
 RIGHTS OF INI'AID SLLI.I U. 1 S:3 
 
 buyer, and is based on the plain reason ot jusiici' and 
 equity that one man's goods shall not he a]-)plicd to the 
 payment of another man's di'bts.' It is "a ri<j;^ht 
 to interfere and prevent the buyer from taUinj^ actual 
 possession, which he would otherwise have a rifj^hl to 
 take, and to undo the effect of an unconditional delivery 
 to an agent to forward."" The right generally exists 
 notwithstanding partial payment of the price." But 
 when the contract is apporlionable and payment has been 
 made in respect of certain instalments the seller can onlv 
 exercise his right of stoppage in tronsilu over the goods 
 which remain unpaid for.' The right is lost if the seller 
 has taken bills of exchange or other securities in absolute 
 payment but not if the bills or securities have been taken 
 in conditional payment.^ The right is one available onh- 
 against the goods themselves,* and is not available 
 against the proceeds of an insurance polic\' efTected bv 
 the buver against damage to the goods in coiu'se of 
 transit/ 
 
 Who .may PLxercise thi-: Right. — Since an unpaid 
 seller includes any person who is in the position of a 
 seller," it follows that the right of stoppage in transitu 
 mav be exercised by an agent of the seller to whom the 
 bill of lading has been transferred;' or a consignor who 
 has bought goods on account and by order of his princi- 
 
 1 D'Aquila v. Lambert (1761) 2 Eden. 77, per Lord Northington. L.C. 
 
 - Blackburn on Sale, 264; and see Lickbirrrow v. Miison (1793) 
 6 East. 21, at p. 27, per Buller, J.; Gilson v. Cirnifliers (1S41) 
 8 M. & W. 321 ; Ke7idaU v. Marshall, supra. 
 
 ■ See Sect. 38 (1) : Hodgson v. Lov (1797) 7 T.K. 440 : Feise v. Wray 
 (1802) 3 East. 93: Eduards v. Brewer (1837) J M. & W. 375; 
 Van Casteel v. Booker (1848) 2 Ex. 702. 
 
 * Merchant Banking Coy. v. Phamix Steel Coy. (1877) 5 Ch.D. 205 
 
 •^ Sibree v. Tripp (1S4G) 15 M. & Vv. 23 ; Lichfield Union v. Greene 
 (1857) 1 H. & N. 884 ; Sard v, Rhodes (1836) 1 M. & W. 153 ; Camid^c 
 V. Allenby (1827) 6 B. & C. 381 ; Lewis v. Lyster (1835) 2 CM. & K. 
 704; Dixon V. Yates {]S33) 5 B. & Ad. 345: Fei.se \. Wray, supra, 
 Edwards v. Brewer, supra ; Patten v. Thompson (1816) 5 M. & S. 
 350 ; Miles v. Gorton (1834) 2 Cr. & M. 504. 
 
 « Berndtson v. Strang (1867) 4 Eq. 481 ; Kemp v. Falk (1882) 7 App. 
 Cas. 573 ; Phelps v. Coomber (1885) 29 Ch.D. 814. 
 
 ^ Berndtson v. Strang, supra ; Latham v. The Charttrcd Bank of 
 India (1873) 17 Eq. 205 
 
 ** See Sect. 38; and ante, p. 174. 
 
 '' See Bills of Lading Act. 1855 ; Morrison v. Gray (1824) 2 Bing. 260.
 
 184 VENDORS AND PURCHASERS. 
 
 pal or his own credit ;^ or a seller who consigns goods to 
 a factor on a joint account, drawing a bill on him for 
 half the price ;' or a person who has agreed to buy goods 
 and who resells ihem before the property has passed to 
 him;^ or a firm against a member of the firm;' or a 
 surety for the buyer, if the surety pays the seller f or an 
 agent of the seller on behalf of his principal,^ provided 
 that where the agent had no such authority, the seller's 
 ratification is made at a time and in circumstances in 
 which he himself could have done the act ratified/ 
 
 Against Whom may the Right be Exercised ? — The 
 right can only be exercised against an insolvent buyer, 
 i.e., a person who either has ceased to pay his debts in 
 the ordinary course of business, or cannot pay his debts 
 as they become due, whether he has committed an act of 
 bankruptcy or not, and whether he has become a notour 
 bankrupt or not."* The fact that the buyer or consignees 
 had "stopped payment" has been considered as a 
 matter of course to be such an insolvency as to justify 
 
 ^ Feise v. Wray (1802) 2 East. 93 ; and see The Tigress (1863) 32 L.J. 
 Adm. 97 ; Tucker v. Humphrey (1828) 4 Bing. 516; Hawker v. Dunn 
 (1831) 1 C. & J. 519; Ireland v. Livingston (1872) 5 H.L. 395; 
 Cassaboglora v. Gibb (1883) 11 Q.B.D. 797; Ex p. Miles (1885) 15 
 Q.B.D. 39 ; Exp. Francis (1887) 56 L.T. 577. 
 
 2 Newsom v. Thornton (1805) 6 East. 17 ; cf. Kinloch v. Craig (1789) 
 3 T.R. 119. 
 
 ■^ See Sect. 62 (1) ; Jenkyns v. Usborne (1844) 7 M. & G. 678. 
 
 * Exp. Cooper, re MacLaren (1879) 11 Ch.D. 68. 
 
 * See Mercantile Law Amendment Act, 19 & 20 Vict. c. 97, sect. 5 ; 
 Lockhart V. Rcilly (1857) 1 De G. & J. 464; Batchellor v. Lawrence 
 (1861) 9 C.B. N.S. 543 ; Brandon v. Brandon (1859)28 L.J. Ch. 150; 
 De Wolf V. Lindsell (1868) 5 Eq. 209 ; Phillips v. Dickson (1860) S C.B. 
 N.S. 391; Imperial Bank v. L. & St. Katherinc's Dock Cow (1877) 
 5 Ch.D. 195 ; Russell v. Shoolbred (1885) 29 Ch.D. 254 ; Morgan v. 
 Hill (1894) 3 Ch. 400 ; cf. Siffken v. Wray (1805) 6 East. 371. 
 
 <= Whitehead v. Anderson (1842) 9 M. & W. 518. 
 
 '' Aitdley V. Pollard (1597) Cro. El. 561 ; Dibbins v. Dibbins (1896) 
 2 Ch. 348; Lyell v. Kennedy (1887) 18 Q.B.D. 796, 814 ; and see Bird 
 V. Brown (1850) 4 Ex. 786 ; Hutchings v. Nunes (1863) 1 Moo. PC. 
 243. 
 
 « See Sect. 62 (3) ; Parker v. Gossagc (1835) 2 CM. & R. 617 ; 
 Biddlecombe v. Bond (1835) 4 A. & E. 322 ; Billson v. Crofts (1873) 
 15 Eq. 314 ; Re Phoenix Steel Coy. (1876) 4 Ch.D. 120; Nixon v. Verry 
 (1885) 29 Ch.D. 196; The Queen v. Sadlers' Coy. (1863) 10 H.L.C. 
 404, 425.
 
 RIGHTS OF UNPAID SFXLF.R. 185 
 
 Stoppage in transitu.^ If stoppage in transitu is made 
 before the biiver becomes insolvent, the seller is bound 
 to deliver the goods and to indemnify the buyer for the 
 expenses incurred;" but if the buyer is insolvent at the 
 time of the arrival of the goods at their destination, the 
 premature stoppage avails for the protection of the 
 seller.'' 
 
 Duration of Transit. — Goods are deemed to be in 
 course of transit from the time when they are delivered 
 to a carrier l)y land or water, or other bailee or custodier 
 for the purpose of transmission to the buyer, or his agent 
 in that behalf takes delivery of them from such carrier 
 or other bailee or custodier.' 
 
 "The essential feature of a stoppage in. transitu is that 
 the goods should be at the time in the possession of a 
 middleman, or of some person intervening between the 
 vendor, who has parted with, and the purchaser, who has 
 not yet received them."^ The test to be applied is: 
 " Has the person who has the custody of the goods got 
 possession as an agent to forward (the goods) from the 
 vendor to the buyer, or as an agent to hold (the goods) 
 for the buyer."* Thus, goods are in course of transit as 
 long as thev remain in possession of the carrier, as carrier 
 (i.e., an agent for carriage only),^ and it is immaterial 
 that the carrier has been named or appointed by the 
 buyer ;■* or whether the goods are actually in motion or 
 
 ' Vcf-tue V. Jciccll (1814) 4 Camp. 31 ; Ncwsoni v. Thornton (1805) 
 C East. 17; Dixon v. Yates (1833) 5 B. & Ad. 313; Bird v. Broun 
 (1850) 4 Ex. 736. 
 
 ^ The Constantia (1807) 6 Rob. Adm. R. i2\. per Lord Stowell. 
 
 •'' Ibid. ; The Tigress (1863) 32 L.J. Adm. 97. 
 
 ^ Sect. 45 (1). 
 
 •' Schotsniiins v. L. & Y. Rly. Coy. (1867) 2 Ch. 332. per Lord 
 Cairns; Berndtson v. Strang (1868) 3 Ch. 588, 590, per Lord Cairns, 
 Gilson V. Carritthcrs (1841) 8 M. & \V. 321. 328. per Rolfe, B. ; and see 
 Ex p. Rosevear China Clay Co. (1879) 11 Ch.D. 560. 568. 
 
 '"' Blackburn on Sale, 244. 
 
 ' Mills V. Ball (1801) 2 B. & V. 457 ; James v. Gn\^n (1836) 2 M. & 
 W. 633; Lickharroiv v. Mason (1787) 1 Sm. L.C.: 11th ed.. 693; 
 Ex p. Cooper (1879) 11 Ch.D. 68; Kendall v. Marshall (1883) 11 
 Q.B.D. 356. 
 
 " Hodgson V. Loy (1797) 7 T.R. 440; Jaekson v. Nickoll (1839) 
 5 Bing. N.C. 508; Ellis v. Hunt (1789) 3 T.R. 469; Berndtson v. 
 Strang, supra; Exp. Rosevear Coy., supra; Bethell v. Clark (1888) 
 20 y.B.D. 615.
 
 186 VENDORS AND PURCHASERS. 
 
 are lodged in any place in course of transmission.^ 
 \\^hether a delivery of the goods to the buyer's servant 
 who fetches the goods from the seller's place of business 
 in a cart or otherwise, or a delivery to the buyer's ship, 
 is a deliver}^ to the buyer so as to put an end to the 
 transit, is a question of inference as to what was the real 
 intention of the parties." A delivery on board the 
 buyer's vessel may be restrained by the seller takings 
 bills of lading so expressed as to indicate that the 
 deliverv is to the master of the ship as an agent for 
 carriage and not as the buyer's agent to receive 
 possession.^ 
 
 The course of transit may be fixed by the contract of 
 sale, or by the directions of the buyer, in which case the 
 right of stoppage exists during such course; but if the 
 goods are not in the hands of the carrier by reason either 
 of the terms of the contract or of the directions of the 
 purchaser to the vendor, but are in transitu afterw^ards 
 in consequence of fresh directions given by the purchaser 
 for a new transit, then such transit is no part of the 
 original transit, and the right to stop is gone. So also 
 if the purchaser gives orders that the goods shall be sent 
 to a particular place, there to be kept till he gives fresh 
 orders as to their destination to a new carrier, the 
 original transit is at an end w^hen thev have reached that 
 place, and anv further transit is a fresh and independent 
 transit.'* Thus the destination contemplated by the 
 buyer may be the appointed destination, i.e., the destina- 
 tion contemplated bv both buyer and seller, or it may be 
 a further destination. In the case of the appointed 
 destination it is immaterial that the seller is in ignorance 
 as to such destination if, under the contract, the goods 
 were to be delivered to a carrier for transmission to such 
 destination; the right of stoppage exists;* but the 
 
 ' Mills V. Ball, supra; James v. Griffin, supra: Kendall v. 
 Marshall, supra. 
 
 - Blackburn on Sale, 242 ; Turner v. Trustees of Liverpool Docks 
 (1851) 6 Ex. 565; Van Casteel v. Booker (1848) 2 Ex. 691 ; Berndtson 
 V. Stranfi, supra, 489 ; and see llie Merchant Banking Cov. v. Piicetiix 
 Steel Coy. (1877) 5 Ch.D. 205, per Jessell, M.K., at p. 219. ' 
 
 •* See Sect. 19 (2) : and ante, p. 147. 
 
 * Exp. Rosevcar China Clav Co. (1879) 11 Cli.D. 560; Bethell v. 
 Clark (1887) 20 Q.B.D. 615. per Lord Esher. M.R. 
 
 •' Ex p. Roscvear China Clay Cov., supra ; cf. Jobson v. Eppenheim 
 (1905) 21 T.L.R. 468.
 
 RIGHTS OF L'NPAID SELLIIR. 187 
 
 destination contemplated by the buyer is not the 
 appointed destination niereh" because' the st*ller is aware 
 of it;' nor is it such destination where the seller has no 
 authority to forward the i^^oods or to instruct the carrier 
 to forward the goods to the destination contemplated by 
 the buyer." And where the croods are consigned, partly 
 by one route and partly by another and those sent b^' one 
 route are effectiyeh- stopped in transit, the stoppage does 
 not reyest to the seller the right to the possession of the 
 goods sent by the other route and whi( h haye reached 
 their destination.' 
 
 Anticipation' of End of Transit by Buvkk. — If the 
 buyer or his agent in that behalf obtains deliyerv of the 
 goods before their arriyal at the appointed destination, 
 the transit is at an end.' The carrier and the buyer or 
 his agent to receive possession may agree together for 
 the delivery of the goods at any place they please;^ or 
 the carrier may attorn to the buyer during the transit; so 
 as to convert the carrier from an agent to forward to an 
 agent to hold the goods; the test of such attornment 
 being whether the goods will again be set in motion 
 without fresh orders of the buyer; if they will not, the 
 transit is ended. ^ 
 
 Goods Arrived at Destination but still in 
 Carrier's Posssession. — If, after the arrival of the 
 goods at the appointed destination, the carrier or other 
 bailee or custodier acknowledges to the buyer or his 
 agent that he holds the goods on his behalf and con- 
 tinues in possession of them as bailee or custodier for 
 the buyer or his agent, the transit is at an end, and it 
 is immaterial that a further destination for the goods 
 may have been indicated by the buyer, ^ Tf the goods are 
 
 1 Exp. Miles (1885) 15 Q.B.D. 39. 
 
 - Kendall v. Marshall (18S3) 11 Q.B.D. 35G : Ex />. Miles, supra ; 
 Johsoii V. Eppetiheini, supra. 
 
 " Wcntworth v. Oiiflncaite (1842) 10 M. & W. 436. 
 
 ■• Sect. 45 (2) ; Whitehead v. Anderson (1842) 9 M. & W. 51S. 534. 
 
 ■^ L.N.W. Rlv. Coy. v. Bartlett (18G1) 7 H. & N. 400; Cork Distil- 
 leries Coy. V. Gt. S. & \V. Rlv. Cov. (1874) 7 H.L. 269; Kendall v. 
 Marshall (1883) 11 Q.B.D. 369; and see Reddall v. Union Castle Mail 
 Coy. (1914) 84 L.J. K.B. 360. 
 
 ^ Reddall v. Union Castle Mail Coy., supra. 
 
 ' Sect. 45 (3).
 
 .l(S8 VENDORS AND PURCHASERS. 
 
 rejected by the buyer, and the carrier or other bailee or 
 custodier continues in possession of them, the transit 
 is not deemed lo be at an end, even if the seller has 
 refused to receive them back.^ 
 
 The appointed destination is the place to which under 
 the contract the goods are to be consigned,^ the " further 
 destination " is the place to which the buyer intends 
 for his own purpose that the goods shall go, and with 
 which the seller has no concern. \\"hether, when the 
 goods have reached their destination, the carrier is in 
 possession of the goods as carrier or as the buyer's 
 agent to receive them and hold them, is a question of 
 fact. If the carrier has the intention to hold the goods 
 for the buver and not as an agent to forward, and the 
 buyer intends the carrier so to hold them for him, the 
 transit is at an end; but both these intents must concur, 
 the carrier cannot convert himself into the buyer's agent 
 to hold the goods so as to terminate the transit without 
 the cons.ent of the buyer, nor can the buyer change the 
 carrier's possessory capacity without the carrier's con- 
 sent. "^ The carrier may hold the goods on the buyer's 
 behalf, and yet retain them in exercise of his lien for 
 unpaid freight;^ but in order to rebut the presumption 
 that such a retention is made in his capacity as carrier 
 to forward and not as the buyer's agent to hold the 
 goods there must be proof of some agreement between 
 the carrier and buyer that the former should, while 
 retaining his lien, become the buyer's agent to hold the 
 goods. ^ 
 
 Delivery on Ship Chartered by Buyer. — When 
 goods are delivered to a ship chartered by the buyer it 
 
 ' Sect. 45 (4) ; in such a case the carrier retains possession as carrier , 
 see James v. Griif^n (1837) 2 M. & W. 623 : Bolton v. L. & Y. Rly. Cow 
 (1866) 1 C.P. 431. 
 
 '■* See Mcchan v. N.E. Rly. Coy. (1911) Sess. Cas. 1348. • 
 
 '■' See Blackburn on Sale. 248; James v. Griffin (1837) 2 M. & W. 
 623; Jackson v. Nickol (1839) 5 Bing. N.C. 508'; Ex p. Cooper (1879) 
 11 Ch.D. 68 ; Bolton v. L. & Y. Rly. Coy. (1866) 1 C.P. 431 ; Taylor v. 
 G.E. Rly.Coy. (1901) 17 T.L.R. 394; Ex p. Barrow (1877) 6'Ch.D. 
 783 ; Whitehead v. Anderson (1842) 9 M. & W. 518. 
 
 * Allan V. Gripper (1832) 2 Q. & J. 218 ; Kemp v. Falk (1882) 7 A.C. 
 573. 584, per Lord Blackburn. 
 
 ■'■ Crawshay v. Eades (1823) 1 B. & C. 181 ; Edwards v. Brewer 
 (1837) 2 M. & W. 375 ; Exp. Barrow, supra ; Kemp v. Falk, supra.
 
 RKiHTS (.W rXI'AII) sr[,i.i:r. 18{> 
 
 is a question dependirif:^ on the circumstances of the 
 particular case whether they are in the possession of the 
 master as a carrier, or as agent to the buyer.' It depentis 
 on the nature of the charter-party (i.e., the shijjpin*^;^ 
 contract) whether a vessel chartered by the buyer is to 
 be considered as his own ship. Where the buyer is, by 
 the law merchant, owner for the voyage, so that the 
 master is the buyer's servant, delivery on board the ship 
 is delivery to the buyer and the transit is at an end; but 
 if the effect of the charter is merely to secure to the buyer 
 the exclusive use and employment of the vessel for 
 purposes of carriage onl\- and the vessel's owner has his 
 own master on board, then delivery to the ship is not a 
 delivery to the buyer but to an agent for carriage.^ 
 
 Carrikr's Wrongful Refusal to Delivi-:r. — Where 
 the carrier or other bailee or custodier wrongfully 
 refuses to deliver the goods to the buyer or his agent on 
 that behalf, the transit is deemed to be at an end.* A 
 refusal is wrongful where the buyer is entitled to demand 
 delivery ;* it is not a wrongful refusal where the carrier 
 refuses delivery on the buyer's demand made during the 
 transit, for the buyer cannot, any more than a seller, 
 anticipate the end of the transit by demanding' the 
 possession of the goods unless the carrier attorns to 
 him.^ 
 
 Part Delivery. — Where part delivery of the goods 
 has been made to the buyer or his ag-ent in that behalf, 
 the remainder of the goods may be stopped in transitu 
 unless such part delivery has been made under such 
 circumstances as to show an agreement to give up 
 possession of the whole of the goods.* 
 
 ' Sect. 45 (5). 
 
 ■^ See Blackburn on Sale, 242 ; Foicler v. McTaggiirf or h'yincr (1797) 
 7 T.R. 442; Siuidcmmi v. Hcnor (1866) 2 Q.B. 86; Fnizcr v. Marsh 
 (1811) 13 East. 238; Baumiccll Maniifactitr \\ Fiiniess (1893) A.C. 8; 
 Weir V. Union S.S. Coy. (1900) A.C. 525. 
 
 •' Sect. 45 (6) ; Bird v. Brown (1850) 4 Exch. 786. 
 
 ■" See Blackburn on Sale, 260. 
 
 ' Seejirckson v. Nickol (1839) 5 Bing. N.C. 508; Bootli S S. Coy. v. 
 Cargo Fleet Coy. (1916) 2 K.B. 570. 600. 
 
 •^ Sect. 45 (7) ; and see ante, p. 179.
 
 190 VENDORS AND PURCHASERS. 
 
 Exercise of Right. — The unpaid seller may exercise 
 his right of stoppage in transitu, either by taking actual 
 possession of the goods, or by giving notice of his claim 
 to the carrier or other bailee or custodier in whose posses- 
 sion the goods are. Such notice may be given either to 
 the person in actual possession of the goods or to his 
 principal. In the latter case the notice, to be effectual, 
 must be given at such time and under such circumstances 
 tkat the principal, by the exercise of reasonable diligence 
 may communicate ii to his servant or agent in time to 
 prevent a delivery to the buyer. ^ Thus a demand for the 
 bill of lading is a good stoppage ;" and so is the taking 
 possession of a part of the goods in the name of 
 the whole ;^ and so is the giving of notice of claim to 
 customs officials ;* but a notice to consignees to hold the 
 proceeds ot the goods to his order is not a good stoppage, 
 for it implies that the goods themselves will be delivered 
 to the buyer. ^ The seller need not prove his right to 
 stop; he takes the risk of the stoppage being justified.* 
 Where timely service of notice is sent to the principal of 
 the agent in possession, it is the duty of such principal 
 to forward the notice to his agent/ When the right is 
 exercised and persisted in, the seller must take or give 
 -directions as to the delivery of the goods and to discharge 
 the carrier's freight; if he repudiates this obligation, 
 he is liable to the carrier in damages for loss sustained 
 by the latter through non-completion of transit/ 
 
 Duty of Carrier on Stoppage. — When notice of 
 stoppage in transitu is given by the seller to the carrier, 
 or other bailee or custodier in possession of the goods, 
 he must redeliver the goods to, or according to the 
 directions of, the seller. The expenses of such redelivery 
 
 ' Sect. 46 (1). 
 
 - Exp. Watson (1877) 5 Ch.D. 35; and see Kemp v. Isiiiay (1909) 
 100 L.T. 996. 
 
 •' HiitcJungs V. Nicnes (1863) 1 Moo. P.C.C. 243. 
 
 * Northey and Lewis v. Field (1794) 2 Esp. 613. 
 
 ■■' See Phelps v. Comber (1885) 29 Ch.D. 813 ; Siffken v. Wrav (1805) 
 •6 East. 371 ; ^]ills v. Ball (1801) 2 B. & P. 457 ; N'icliolls v. Le'Fcuvrc 
 •(1835) 2 Bing. N.C. 81. 
 
 8 The Tigress (1863) Br. & Lush 38. 
 
 ^ See Kemp v. Falk (1882) 7 A.C. 585, per Lord Blackburn. 
 
 - Booth S.S. Coy. v. Cargo Fleet Coy. (1916) 2 K.B. 570.
 
 RKiHTS OF IM'MD SKLLKR. 191 
 
 must be borne by the seller/ If the carrier, after a valid 
 notice of stoppage, refuses to deliver to the seller, or if he 
 delivers to the buyer, he is guilty of conversion.^ 
 
 Section 4 — Re-sale or Pledge by Buyer. 
 
 Effect of Sub-sale or Pledge by Buyer. — Subject 
 to the provisions of the Act," the unpaid seller's right 
 of lien or retention or stoppage in transitu is not affected 
 by any sale, or other disposition of the goods which the 
 buyer may have made, unless the seller has assented 
 thereto. Provided that where a document of title* to 
 goods has been lawfully transferred* to any person* as 
 buyer or owner of the goods, and that person transfers 
 the document to a person who takes the document in 
 good faith (i.e., honestly, whether negligently or not^) 
 and for valuable consideration, then, if such last-men- 
 tioned transfer was by way of sale the unpaid seller's 
 right of lien or retention or stoppage in transitu is 
 defeated, and if such last-mentioned transfer was by way 
 of pledge** or other disposition for value, the unpaid 
 seller's right of lien or retention or stoppage in transitu 
 can only be exercised subject to the rights of the 
 transferee." 
 
 The seller's assent must be such as in the circum- 
 stances shows that the seller intends to renounce his 
 
 1 Sect. 46 (2); see The Tigress (1863) 32 L.J. Adm. 97, per Dr. 
 Lushington; Booth S.S. Coy. v. Cargo Fleet Coy. (1916) 2 K.B. 570; 
 Somes V. Brit. Emp. Shipping Coy. (1858) 8 H.L.C. 338. 
 
 2 Jackson V. Nickoll (1839) 5 Bing. N.C. 508 ; Litt v. Cowley (1816) 
 7 Taunt. 170 ; Pontifex v. Mid. Rly. Coy. (1877) 3 Q.B.D. 23 ; see also 
 Meehan v. N.E. Rly. Coy. (1911) Sess. Cas. 1348; Schotsmann v. 
 L. & v. Rly. Coy. (1867) 2 Ch. 340. 
 
 ■' See Sects. 25 (2), and 55 ; and see Sect. 9 of the Factors Act, 1889, 
 Appendix B. IIL, ^os^. 
 
 ■• See Sect. 62 (1) ; and see Sect. 1 (4) of the Factors Act, 1889, 
 Appendix B. IIL. post : and see Kemp v. Falk (1882) 7 App. Cas. 
 573, at p. 584. 
 
 ■' See Sect. 11 of the Factors Act, 1889, Appendi.x B. IIL, ^os^ 
 and Sect. 62 (1) of the Sale of Goods Act, 1893 ; Cahn v. Pockett (1899) 
 1 Q.B. 655, per Collins, L.J. 
 
 ^ See Sect. 1 (6) of Factors Act, 1889, Appendix B. Ill,, post. 
 
 ^ See ibid., Sects. 1 (5) and 5. ** Re Westgiuthiis (1833) 5 B. and 
 
 Ad. 817 ; Coventry v. Gladstone (1868) 6 Eq. 44 ; Kemp v. Falk, supra ; 
 •and see Sect 1 (5) of the Factors Act, 1889. 
 
 '•> Sect. 47.
 
 192 VENDORS AND PURCHASERS. 
 
 rights against the goods ;^ as where, by his words or 
 condtict, he expressly or impHedly represents to the 
 transferee {i.e., the person to whom the buyer disposes of 
 the goods) that the goods will be deliverable to him 
 free from the seller's rights as unpaid seller;" a mere 
 acknowledgment by the seller of the receipt of informa- 
 tion of the fact of such disposition by the buyer is not 
 enough f and an anticipatory assent will not be inferred 
 from the mere fact that the seller has issued to the buyer 
 a document containing merely a statement that the goods 
 are ready for delivery/ or an engagement to deliver 
 them/ or similar statements, which document is not 
 othe'rwise a document of title/ or whicli does not 
 contain due representation that the goods are free from 
 lien so as to preclude the seller from averring against 
 the buyer a different state of things/ The seller's 
 assent, if given to the transferee at a time when the 
 buyer is entitled to possession of the goods, is not 
 revocable as against the transferee by reason of the 
 buver's subsequent default in payment or insolvency/ 
 By " document of title " is meant " any bill of 
 lading, dock warrant, warehouse-keeper's certificate, 
 and warrant or order for the delivery of goods, and any 
 other document used in the ordinary course of business 
 as proof of the possession or control of goods, or 
 authorising or purporting to authorise, either by 
 indorsement or by delivery, the possessor of the docu- 
 ment to transfer or receive goods flTereby represented."^ 
 Bills of lading are symbolic of the goods, ^^ and their 
 
 ^ Mordaunt Bros. v. Brit. Oil <f- Cake Mills (1910) 2 K.B. 502, per 
 Pickford, J. ♦ 
 
 - Ibid. ; Stoveld v. Huglies (1811) 14 East. 308 ; Pccrr.son v. Dawson 
 (1858) E.B. &E. 448; Merchant Banking Coy. v. Phoenix Steel Coy. 
 (1877) 5 Ch.D. 205. 
 
 •'• Mordaunt Bros. v. Brits. Oil & Cake Mills, supra ; Poulton v. 
 Anglo-Amer. Oil Coy. (1910) 27 T.L.R. 38, 216; Bellamy v. Davey 
 (1891) 3 Ch. 540. 
 
 ■* Gunn V. Bolckow (1875) 10 Ch. 491. 
 
 • Farmcloe v. Bain (1876) 1 C.P.D. 445. 
 
 ^ See next paragraph ; Gunn v. Bolckow, supra. 
 
 ' Fartneloe v. Bain, supra. 
 
 " Pearson v. Dawson, supra. 
 
 » See Sect. 62 (1) ; Factors Act, 1889, Sect. 1 (4). 
 
 '" Burdick v. Sewell (1884) 13 Q.B.D. 159. 171 ; Sanders v. Maclean 
 (1883) 11 g.B.D. 327, 341.
 
 RIGHTS OF UNPAID SliLLlil^. 193 
 
 indorsement and delivery operate (a) to transfer the 
 property in the goods, (b) as a complete legal delivery 
 of the goods/ (c) to divest the seller's Ue7i, and (ti) to 
 vest in the buyer all the seller's rights of action against 
 the ship, master and owner." But where the goods have 
 not yet reached the actual possession of tiie buyer, and 
 if no third person has acquired rights by obtaining a 
 transfer of the bill of lading from the buyer, the seller 
 may exercise his right of stoppage in transitu in the 
 event of the buyer's insolvency before payment.^ A 
 " delivery order " is an order given by the seller on 
 a bailee who holds possession as the seller's agent, and 
 is, until it is acted upon, a mere " promise to deliver,"^ 
 and delivery is not complete until the bailee attorns to 
 the buyer. ^ A warrant is a document issued by a 
 wharfinger, dock-owner or warehouseman, stating that 
 certain goods therein mentioned are deliverable to a 
 person therein named or his assigns by indorsement. 
 A wharfinger's or warehouseman's certificate, when it 
 is not in the form of a warrant, is simply an acknowledg- 
 ment that goods described therein are deposited at the 
 wharf or in the warehouse, and is generally expressed 
 to be not transferable. " The indorsement of a delivery 
 order or dock warrant has not. independently of the 
 Factors Act,* any effect beyond that of a token of an 
 authority to receive possession.'" The effect of the 
 proviso to Section 47 of the Sale of Goods Act, 1893,* 
 is, now, to defeat the seller's rights of lien or stoppage 
 in transitu when a document of title within the above 
 definition is transferred by the buyer, and to put all 
 such documents of title upon the same footing as bills 
 of lading. 
 
 In order to defeat the unpaid seller's rights of lien or 
 stoppage in transitu, the document of title must be 
 
 ' Sanders v. Maclean, supra. 
 
 ■^ See Bills of Lading Act, 18 & 19 Vict., C. Ill, Sect. 1. 
 
 •' See Lickbarrow v. Mason (1789) 2 T.R. 63 : 6 East. 20. 
 
 ' Gillmann v. Carbutt (1889) 61 L.T. 281, ;^c';- Lord Esher, M.R. 
 
 ■'' See ante, p. 158. 
 
 " Factors Act, 1889, Sect. 1 (4). 
 
 ^ Blackburn on Sale, 297-298. 
 
 " See ante, p. 191. 
 
 13
 
 194 VPINDORS AND PURCHASERS. 
 
 lawfully transferred, i.e., by indorsement and delivery 
 or mere deliver}^, as the case may be, by the buyer who 
 has the right to transfer it.* The seller's right of stop- 
 page may be only partially defeated, for where the buyer 
 has transferred the document of tide by way of pledge 
 or security for the debt, at most only the special property 
 in the goods will have been thus assigned, and the 
 general property remains in the buver.^ In such a case 
 the seller's right of stoppage remains so far as to 
 entitle him to any surplus proceeds after satisfying the 
 secured creditor.^ The transfer of the document must, 
 further, be to a third person who takes it in good faith, 
 i.e., honestly, whether negligently or not.' without 
 notice of such circumstances as to render the document 
 not fairly and honestly assignable.* The transferee 
 must also have given value for the document, and 
 though an antecedent debt is not per se consideration 
 for an assignment, it will be sufficient if it is shown that 
 the creditor has forborne to enforce payment of the 
 debt on the assignment to him of the document of title ; 
 and the case is all the stronger where the assignment is 
 given in consequence of pressure on the part of the 
 creditor. But the facts must show that it was agreed 
 between the buyer and transferee that the debt must be 
 the consideration for the transfer.* 
 
 Section 5 — Effect of Exercise of Rights of Lien 
 AND Stoppage. 
 
 Sale not Generally Rescinded. — The mere exercise 
 of his rights of lien or stoppage by the unpaid seller 
 
 ' See Cahn v. Pockett (1899) 1 Q.B. 643; The Argentina (1867) 
 1 A. & E. 370. 
 
 ^ See Blackburn on Sale, 279; Giirney v. Bchrcnd (1854) 3 E. & B. 
 622 ; Cahn v. Pockett, supra, 658, 659. 
 
 •' See Sewell v. Burdick (1884) 10 App. Cas. 74 ; Re Westzinthiis 
 (1833) 5 B. & Ad. 817 ; Spalding v. Ruding (1843) 6 Beav. 376 ; Kemp 
 V. Falk (1882) 7 App. Cas. 573. 
 
 ^ See Sect. 62 (2) ; Jones v. Gordon (1877) 2 A.C. 628-629, per Lord 
 Blackburn; London J. S. Bank v. Sinimons (1892) A.C. 221, 223, per 
 Lord Herschell ; Cuming v. Brown (1808) 9 East. 506. 
 
 •'' Cuming v. Brown, supra ; Salomons v. Nissen (1788) 2 T.R. 674 ; 
 Vcrtuc V. Jewell (1814) 4 Camp. 31. 
 
 « See Patten v. Thompson (1816) 5 M. & S. 350; Leask v. Scott 
 (1877) 2 Q.B.D. 376; Wigan v. English, &c., Corporation (1909) 1 Ch. 
 291 ; Glcgg V. Bromley (1912) 3 K.B. 474.
 
 RIGHTS OF UNPAID SKLLER. lijo 
 
 does not, subject to the provisions of Section 48 of the 
 Act, rescind tiie sale;' that is to sav, the seller cannot 
 treat the sale as rescinded ; the buyer, in an\- event, 
 cannot so treat it and so take advantac^e of his own 
 wroni^.* In i^eneral, the effect is simply to continue 
 the seller's possession where he exercises his lien, and 
 to restore his possession and resume his lien where he 
 •exercises his rio^ht of stoppa.c^e.' 
 
 Where an unpaid seller who has exercised his ric^ht 
 of lien or stoppaece in transitu resells the ^oods the buver 
 acquires a ijood title thereto as against the original 
 buver.' The original buyer has no remedy as against 
 the new buyer; he cannot sue him for trespass, or for 
 the conversion, or for the detention of the goods. But 
 if the original buyer, within the time allowed, is ready 
 and willing to accept and pay for the goods, he can 
 after a resale by the seller sue the seller for non- 
 delivery ;'^ or if within the time allowed he tenders the 
 price and demands the goods, he can sue the seller for 
 their detention ;* the plea by the seller that he has parted 
 with the possession of the goods will not avail him." 
 
 Section 6 — Rk-salk by vSeller. 
 
 Right of Re-Sale. — Section 48 (3) of the Act pro- 
 vides that : Where the goods are of a perishable nature, 
 or where the unpaid seller gives notice to the buyer of 
 his intention to resell, and the buyer does not within a 
 reasonable time pay or tender the price, the unpaid 
 seller may re-sell the goods and recover from the original 
 buyer damages for any loss occasioned by his breach 
 of contract. Section 48 (4) provides: Where the seller 
 
 " Sect. 48 (1). 
 
 - Roberts v. VV^a^MlSlO) 2 Taunt. 268; Malins v. Frcciiuin (1838) 
 4 Bing. N.C. 395. 
 
 •' See Wcntworth v. Oitthiiuiitc (1842) 10 M. & W. 436; Martindalc 
 V, Smith (1841) 1 Q.B. 389; Re Hinubcrston (1846) De G. 262; 
 Schotsinans v. L. Si Y. Rly. Coy. (1867) 2 Ch. 340 ; Phelps v. Comber 
 (1885) 29 Ch. D. 821 ; Kemp v. Fnlk (1882) 7 App. Cas. 581. 
 
 ^ Sect. 48 (2). 
 
 ^ Raxcson v. Johnson (ISOl) 1 East. 203. 
 
 « Jones V. Dowle (1841) 9 M. & W. 19; Yiingnumn v. Briesemann 
 (1892) 67 L.T. 642. 
 
 ^ Jones V. Dowle, supra ; Reeve v. Palmer (1858) 5 C.B. 84.
 
 lOG \'i:XDORS AND PURCHASERS. 
 
 e>y3resslv reserves a right of re-sale in case the bu}'er 
 should make default, and on the buyer making default 
 he re-sells the goods, the original contract of sale is 
 thereby rescinded, but without prejudice to any claim the 
 seller may have for damages. 
 
 At common law it was laid down that the seller's 
 right of re-sale depends upon whether there has been 
 a repudiation by the buyer, so as to entitle the seller 
 to treat the contract as rescinded, and to re-sell the 
 goods/ The buyer's default in not paying or tendering 
 the price within the time limited by the terms of the 
 contract of sale, or within a reasonable time (a question 
 of fact) after receipt of notice of the seller's intention 
 to re-sell, is a default " down to the last moment which 
 the law gives,"^ and is thus hardly distinguishable from 
 a repudiation of the contract by the buyer. Notwith- 
 standing, therefore, that under Section 48 (4) a re-sale 
 operates as a rescission of the contract, while Section 
 48 (3) does not expressly enact that a re-sale rescinds 
 the contract, it is submitted that these two sub-sections 
 re-enact the common law rule. When the contract is 
 thus rescinded, the property in the goods re-vests in the 
 seller, and he re-sells as owner. He may then retain 
 any profit realised on the re-sale,^ and may recover any 
 deficiency on the re-sale and the expenses of re-sale from 
 the buyer, allowing credit for any part of the price 
 paid.* After a re-sale of undelivered goods, the buyer 
 is no longer liable for the price .^ But if the seller, 
 without re-selling, keeps the goods for the buyer, he may 
 sue the buyer for the price.^ and exercise the rights 
 
 ' See Ogg V. Shtiter (1875) 10 C.P. 159, 165 ; Cornwall v. Henson 
 (1900) 2 Ch. 298; Langport v. Tiler (1704) 1 Salk. 113; Hindc v. 
 Whitehousc (1806) 7 East. 558, 571 ; Bloxaw \ . Sanders (1825) 4 B. & C. 
 945 ; Maclean v. Dunn (1828) 4 Bing. 722 ; Fitt v. Cassanet (1842) 
 4 M. & G. 898; Howe v. Smith (1884) 27 Ch. D. 89; Lamond v. 
 Davall (1847) 9 Q.B. 1030 ; Chinery v. Viall (i860) 5 H. <& N. 288. 
 
 '^ Howe V. Smith, supra, p. 105 ^cr Fry, L.J. 
 
 * On general principles ; see also Ex parte Hunter (1801) 6 Ves. 94 
 
 ^ Ibid. ■ Edwardes v. Noble (1877) 5 Ch. D. 378 ; Lamond v. Davall, 
 supra. 
 
 ' Horc V. Milner (1797) Peake 5Sn. ; Maclean v. Dunn, supra; 
 Chinery v. Viall. supra. 
 
 ^ See Sect. 49 (1) ; post. p. 199.
 
 RIGHTS OF UNPAID SELLER. 197 
 
 reserved in liini niuler Section -iT of the Act.' Where 
 the re-sale takes place under an express power to that 
 etifect given bv the contract, the seller must follow the 
 terms of the power." A re-sale without default on the 
 part of the buyer is wrongful and entitles the buyer to 
 sue the seller for non-delivery^ or to treat the re-sale as 
 a repudiation of the contract by the seller, in which case 
 he may rescind the contract" and recover any part of 
 the price paid together with damages. If at the time 
 the buver is entitled to the possession of the goods, such 
 a re-sale is a conversion."^ 
 
 Section T — Right of Withholding Delivkrv. 
 
 Existence and I^xercise of the Right. — i^y Section 
 39 (2) of the Act, where the property in goods lias not 
 passed to the buyer {i.e., on an agreement to buy),' the 
 unpaid seller has, in addition to his other remedies,' a 
 right of withholding delivery similar to and co-extensive 
 with his rights of lien and stoppage in transitu where 
 the property has passed to the buyer. Thus this right 
 arises when the price is due and unpaid, or the buyer 
 becomes insolvent. The right exists as well on an 
 agreement to sell goods to be delivered by instalments 
 as on a sale of specific goods.* 
 
 • See ante, p. 172; Greaves v. Ashlin (1818) 3 Camp. 426. 
 
 '^ Laniotui v. Diivall, supnx. 
 
 •■* Bowdcll x . Parsons (1808) 10 East. 359; Woolfc v. Home (1877) 
 2 Q.B.D. 353. 
 
 * See Fitt v. Cassanct, supra. 
 
 ' Martindale v. Smith (1841) 1 Q.B. 389 ; Chinery v. Viall. supra ; 
 cf. Wilinshttrst v. Rowkcr (1839) 5 Bing. N.C. 541. 
 
 •^ See Sect. 02 (l) ; and ante, p. 120. 
 
 ' See Sects. 49 (2) and 50, post, pp. 200, 201. 
 
 ^ Hx parte Chalmers (1873) 8 Ch. 289; Morgan v. Bain (1874) 10 
 C.P. 15 ; Griffiths v. Perry (1859) 1 E. & E. 680.
 
 CHAPTER V. 
 
 REMEDIES FOR BREACH OF CONTRACT. 
 
 Section 1 — Introductory. 
 
 Two Kinds of Remedy. — A breacli of contract is 
 attended with two kinds of remedy : an action for 
 damages or pecuniary compensation ; and an action for 
 specific performance of the contract according to its 
 terms, so far as the breach will admit. The latter 
 remedy was formerly available only in courts of equity, 
 but now, by virtue of the Judicature Act, 1873, is 
 granted in all courts. 
 
 Damages. — " The rule of the common law is, that 
 where a party sustains a loss by reason of a breach of 
 contract, he is, so far as money can do it, to be placed 
 in the same situation, with respect to damages, as if 
 the contract had been performed.'" Where no loss 
 accrues from the breach of contract, the damages are 
 nominal only, i.e., " a sum of money that may be 
 spoken of, but that has no existence in point of quan- 
 tity."" As a general rule, the damages recoverable are 
 no more than what may fairly and reasonably be con- 
 sidered as naturally arising from the breach, according 
 to the usual course of events; damages which would 
 not arise in the usual course of events, but which do 
 arise from circumstances peculiar to the case in ques- 
 tion, are not recoverable unless the special circumstances 
 are known to the person committing the breach; but 
 where the special circumstances are known or have been 
 communicated to the party in default, and where the 
 damage complained of flows naturally from the breach 
 under those special circumstances, then such special 
 damage is recoverable, as it must be supposed to have 
 been contemplated b\- the parties to the contract when it 
 
 ' Robinson v. Harmon, 1 Ex. 855 ; Hall v. Condcr (1857) 2 C.B. 
 N.S. 22 ; Michael v. Hart (1902) 1 KB. 482. 
 
 ^ Beaumont v. Greathead (1846) 2 C.B. 499.
 
 Ri:Mi:nii:s for bri:ach of contract^ 199 
 
 was made.' Damages for breach of contract are, in all 
 cases with which we are concerned here, by way of 
 compensation only. 
 
 Spixific Pkrformanti;. — Specific performance is 
 granted only where damages would be an inadequate 
 remedy." In the case of an agreement to sell goods, courts 
 of equity would decree the specific performance only in 
 the case of chattels possessing a special beauty, rarity 
 or interest. It is only by statute,' and in the case of a 
 breach of contract to deliver specific goods, that the 
 court may direct the contract to be performed specifi- 
 cally without allowing the seller an option to retain the 
 goods and pay damages. Specific performance by 
 payment of the price under a contract of sale is sub- 
 stantially the same thing as damages for the detention 
 of the money, and the ordinary remed)' b}' action for the 
 debt was considered sufficient both in law and in 
 equity;* and where under the contract the seller has 
 the option of paying damages instead of specific per- 
 formance by delivery of the goods, the court has no 
 jurisdiction to decree specific performance. 
 
 Section 2 — Remkdies of the Seller. 
 
 Action for the Price. — Where, under a contract of 
 sale, the property in the goods has passed to the buyer, 
 and the buyer wrongfully neglects or refuses to pay for 
 the goods according to tiie terms of the contract, the 
 seller may maintain an action against him for tiie price 
 of the goods.- Thus, where the property has pa.ssed and 
 the buyer is in possession of the goods, and the price 
 is payable, the seller stands in the position of an 
 ordinary creditor ; all his speci^il remedies as seller 
 
 ' Hadlcy v. Baxendalc (1854) 9 Exch. 354 ; Ai^ius v. G W . Collv. Coy. 
 (1899) 1 Q.B. 413 ; cf. Bostock v. Nicholson (1904) 1 K.B. 725 ; Re Vic 
 Mill (1913) 1 Ch. 183. 465. 
 
 ■^ Wilson V. N. & B. Rly. (1874) 9 Ch. 284. 
 
 ■^ See post. p. 208. 
 
 ^ Broitgh v.Oihlv (1829) 1 Russ. & M. 55; Morgan \. Lurivicre 
 (1875) 7 H.L. 623. 
 
 •' Sect. 49 (1) ; Scoft v. Knglaiui (1844) 2 Dow. & L. 520 ; Hanker 
 V. Smith (1795) Peake. 42n. ; Mach'ay v. DicL- (1881) 6 A.C. 251'; 
 Garey v. Pike (1839) 10 A. & E. 512; Smith v. Winter (1852) 12 C.B. 
 487.
 
 200 VENDORS AND PURCHASERS. 
 
 are gone ; his sole remedy is by personal action ; mere 
 delay on the part of the buyer in paying the price will 
 not justify the rescission of the contract by the seller 
 unless that right is expressly reserved/ The measure 
 of damages recoverable is the price fixed by the contract, 
 or, where no price has been agreed upon, the value of 
 the goods at the time of delivery ; discount upon the 
 fixed price may be allowed by the contract or by usage 
 of trade/ The damages for detaining the money due, 
 unless interest is recoverable, are nominal/ If the 
 buyer alleges a breach of warranty on the part of the 
 seller, he may " set up against the seller the breach of 
 warranty in diminution or extinction of the price.'"* 
 Where goods are sold under a contract by the terms of 
 which the buyer is to pay for them by a bill of exchange, 
 and no bill is given, the damages are the value of a bill 
 in the terms stipulated for / and if the action is brought 
 after the bill would have become due, interest is charge- 
 able upon the amount as if the bill had been given/ 
 Where, under the contract, the price is payable on a 
 day certain, irrespective of delivery, and the buyer 
 wrongfully refuses or neglects to pay such price, the 
 seller may maintain an action for the price, although the 
 property in the goods has not passed, and the goods 
 have not been appropriated to the contract/ This rule 
 applies to instalments of the price as well as to the 
 whole, where the price of each instalment is separately 
 payable/ 
 
 ' See Martindalc V. Smith (1841) 1 Q.B. 389; and see Lamond v. 
 Davall (1847) 9 Q.B. 1030. 
 
 ■^ See Sect. 8 ; Valpy v. Gibson (1847) 4 C.B. 837, 864 ; Acebal v. 
 Levy (1834) 10 Bing. 376; Exp. Worthington (1876) 3 Ch. D. «03. 
 
 •"' Page V. Newman (1829) 9 B. & C. 378; Graham v. Campbell 
 (1878) 7 Ch. D. 494 ; Wallis v. Smith (1882) 21 Ch. D. 257. 
 
 " See Sect. 53; and p. 209 post; Street v. Blay (1831) 2 B. & Ad. 
 456; Allen v. Cameron (1833) 1 Cr. & M. 832 ; Mandcl v. Steel (1841) 
 8 M. & W. 858 ; Poulton v. Lattimorc (1829) 9 B. & C. 259 ; and see 
 Bostock V. Nicholson (1904) 1 K.B. 725. 
 
 ■' Mussen V. Price (1803)4 East. 147; Paul v. Dod (1845) 2 C.B. 
 800 ; Rabe v. Otto (1904) 89 L.T. 562. 
 
 « Marshall v. Poole (1810) 13 East. 98 ; Farr v. Ward (1837) 3 M. & 
 W. 25 ; Davis v. Smyth (1840) 8 M. & W. 399. 
 
 ' Sect. 49 (2) ; DiinloP v. Grote (1845) 2 C. & K. 153 ; Stein, Forbes 
 & Co. V. County Tailoring Coy. (1916) 86 L.J. K.B. 448. 
 
 *• Workman, Clark & Co. v. Lloyd Brazileno (1908) 1 K.B. 968.
 
 J5EMED1ES FOR BREACH OF CONTRACT. 201 
 
 Damagks for X on- Acceptance. — Where the buyer 
 wrongfully neglects or refuses to accept and pav for the 
 goods, the seller may maintain an action against him 
 for damages for non-acceptance/ The measure of 
 damages is the estimated loss directly and naturally 
 resulting, in the ordinary course of events, from the 
 buyer's breach of contract." Where there is an avail- 
 able market for the goods in question, the measure of 
 damages is prima facie to be ascertained by the differ- 
 ence between the contract price and the market or current 
 price at the time or times when the goods ought to have 
 been accepted, or if no time was fixed for acceptance, 
 then at the time of the refusal to accept.' 
 
 Actual delivery of the goods is not necessarily a con- 
 dition precedent to the seller's right of action for the 
 price. In every case, however, where the buyer refuses 
 to accept and duly pay for the goods under the contract 
 of sale, the seller can elect to treat the contract as broken, 
 €ven though the goods may have passed to the buyer, 
 and can sue for damages for breach of contract.* And, 
 in cases where the seller has not actually transferred to 
 the buyer the property in the goods, the breach of the 
 promise to accept and pay can only affect the seller by 
 way of damages. The goods still remain his property; 
 he may re-sell them or not at his pleasure.^ His only 
 action against the buyer is for damages for non-accept- 
 ance, except in the case where the price is payable on 
 a day certain irrespective of delivery.® 
 
 As a general rule, the seller can recover only the 
 damage he has sustained, not the full price of the goods. ^ 
 And since he may take his goods into the market (if 
 they are marketable) and obtain the current price for 
 them, the ordinary measure of damages is the diflference 
 between the contract price and the market price at the 
 
 ' Sect. 50 (1). 
 
 '^ Sect. 50 (2). 
 
 ^ Sect. 50 (3) ; Phillpotts v. Evans (1839) 5 M. & W. 475. 
 
 * Maclean v. Dunn (1828) 4 Bing. 722. 
 
 •^ Ibid. 
 
 « See ante, p. 200. 
 
 ^ Laird v. Pirn (1841) 7 M. & W. 474 ; Atkinson v. Bell (1828) 8 B. 
 -& C. 277; Boswell v. Kilbont (1862) 15 Moo. P.C. 309.
 
 202 VENDORS AND PURCHASERS. 
 
 time when the contract is broken;^ or if the goods are 
 to be accepted in instalments at several times, the 
 damages are the sum of the instalment differences at 
 those times." The price obtained upon a re-sale within 
 a reasonable time is relevant evidence as to the market 
 price -^ but the price obtained after a delav during 
 which the price may have materiallv altered is not.* Li" 
 no evidence is given of any loss upon the market price. 
 i.e., if the contract price is equal to the market price, 
 the damages recoverable are only nominal,* unless there 
 are special circumstances affecting the case.* Where 
 there is no market for the goods, the seller is entitled to 
 the full damage sustained, i.e., such an amount as 
 would place him in the same position as if delivery had 
 been duly accepted.^ 
 
 Prima facie, the time at which damages should be 
 assessed is the time expressly or impliedly appointed for 
 acceptance,'^ whether or not the seller resells the goods. 
 If he resell he is bound, in order to minimise the buyer's, 
 loss, to obtain the best price he can; he is not obliged 
 to postpone the sale in order to obtain better prices; 
 but if he does, and obtains better prices, the buyer is 
 not entitled to the benefit ; on the other hand, the buyer 
 is not subjected to a greater loss if the market price 
 decreases after the date of the breach.' 
 
 But the date of the breach of contract ma}' precede 
 the date fixed for performance ; for the buyer may, in 
 advance, repudiate the contract by intimating his inten- 
 
 ' See Barrow v. Arnaiid (1846) 8 Q.B. 604; Phillpotts v. Evans 
 (1839) 5 M. & W. 475 ; Gainsford v. Carroll (1824) 2 B. & C. 624 ; 
 Boonnan v. Nash (1829) 9 B. & C. 145; Valpv v. Oaklev (1851) 16 
 Q.B. 941 ; Grimths v. Perry (1859) 1 E. & E. 680; Boswcll v. Kilborn, 
 supra . 
 
 ■^ Broun V. Mullcr (1872) 7 Ex. 319. 
 
 ^ Stewart V. Caiitv (1841) 8 M. & W. 160; Pott v. Flather (1847) 
 16 L.J. Q.B. 366. 
 
 ^ Waddcll V. Blockcy (1879) 4 Q.B.D. 678. 
 
 ^ Valpy \ Oakley, supra ; Nichol v. Bestwick (1858) 28 L.J. E.\. 4. 
 
 « See Sect. 54; and see Hadley v. Baxendale (1854) 9 Ex. 341. 
 
 ■ See Dunkirk Colly. Coy. v. Lever (1878) 9 Ch. D. 20; Cort v. 
 Amhergate (1851) 17 Q.B. 127. 
 
 " Sect. 50; see Boorntan v. Nash (1829) 9 B. & C. 145; Brown v. 
 Muller (1872) 7 Ex. 319; Phillpotts v. Evans (1839) 5 M. & W. 475. 
 
 •' Seejamal v. Moolla Dawood, Sons & Co. (1916) A.C. 175.
 
 REMEDIES FOR BREACH OF CONTRACT. 203 
 
 tion not lo accept the goods.' The seller may then 
 either treat the notice of intention as inc^perative and 
 await the time for performance and then iioUl the buyer 
 responsible for all the consequences of non-performance, 
 or treat the repudiation as puttin<j^ an end to the con- 
 tract and bring an action at once as on a breach of it. 
 In the former case the contract is kept open for the 
 benefit of both parties, and the buyer may then, not- 
 withstanding his repudiation, choose to complete his 
 contract, and also ma\' take advantage of any super- 
 \-ening circumstance which would justify him in declin- 
 ing performance; in the latter case, tiie measure of 
 damages is that amount which will cover the injury 
 arising from the non-performance at the appointed time, 
 subject, however, to abatement in respect of an\- cir- 
 cumstances which miglit have afforded means wherebv 
 the loss could have been mitigated.' Thus, where one 
 party sues upon an " anticipatory " breach committed b\ 
 the other, the contract \\'\\\ be regarded by the court as 
 rescinded, subject to the seller's right to damages.' To 
 constitute an " anticipator)- " breach, the bu}er's repu- 
 diation must be clear and unequivocal,' and be so 
 regarded by the seller;^ a mere expression of inability 
 to perform is not sufficient.* The buyer's insolvency 
 does not per se put an end to the contract ; but if the 
 buyer gives such a notice to the seller of his insolvency 
 as to amount to a declaration of his inability or unwil- 
 lingness to pav for the goods, the seller may be justified 
 in treating the notice as a repudiation." 
 
 * Phillpotts V. Evans, supra ; Braithwaite v. Foreign Hardwood 
 Coy. (1905) 2 K.B. 543. 
 
 •^ Frost V. Knight (1872) 7 K\. Ill : Roth v. Tavsen (1896) 12T.L.R. 
 211 ; Hochster v. Dc la Tour (1853) 2 E. & B. 67S' 
 
 ■*' Ibid. 
 
 < Ripley V. McClure (1849) 4 Ex. 345; Avery v. Bouden (185^ 6 
 E. & B. 953 : Reid v. Hoskins (1855) 5 E. & B. 729 ; Cort v. Ambcrgate 
 (1851) 17 Q.B. 127; Byrne v. Van Tienhovcn (1880) 5 C.P.D. 350; 
 Hochster v. De la Tour, supra. 
 
 ' Averv V. Boziden. supra: Johnstone \. Milling (1885) IC p.B.D. 
 460. 
 
 6 See Danube Cov. v. Xenos (1862) 13 C.B. N.S. 825 ; Bar rick v. Buba 
 (1857) 2 C.B. N.S. 563 ; Gueret v. Andouy (1893) 62 L.J. Q.B. 633. 
 
 • SeeTolhurst v. Assoc. Portland Cement Mfrs. (1903) AC. 414; 
 Re Phrcnix Bessemer Steel Cov. (1876) 4 Ch. D. 108; Mess v. Duffus 
 (1901) 6 Com. Cas. 165 ; Ex p' Stapleton (1879) 10 Ch. D. 586; Ex p. 
 Chalmers (1873) 8 Ch. 289; Morgan v. Bain (1874) 10 C F. 15.
 
 204 VENDORS AND PURCHASERS. 
 
 If at the buyer's request the seller has delayed 
 delivery, and the buyer subsequently refuses to accept 
 the goods, the seller is entitled to have the damages 
 assessed with reference to the market price of the goods 
 within a reasonable time after the request to withhold 
 delivery.' When the seller has intimated to the, buyer 
 that he wishes the latter to take delivery in accordance 
 with the contract, he may, upon the latter's refusal or 
 neglect, charge a reasonable sum for the care and 
 custody of the goods and any loss occasioned by the 
 buyer's default ;'^ but he is not, in such a case, entitled 
 to sell the goods. "^ 
 
 Section 3 — Remedies of the Buyer. 
 
 Damages for Xox-Delivery, — Where the seller 
 wrongfully neglects or refuses to deliver the goods to 
 the buyer, the buyer may maintain an action against the 
 seller for damages for non-delivery/ The measure of 
 damages is the estimated loss directly and naturally 
 resulting in the ordinary course of events from the 
 seller's breach of contract.^ Where there is an available 
 market for the goods in question the measure of damages 
 is prima facie to be ascertained bv the difference between 
 the contract price and the market price of the goods .'!t 
 the time or times when they ought to have been delivered, 
 or, if no time was fixed, then at the time of the refusal 
 to deliver.* 
 
 As a general rule, the damages recoverable are the 
 difference between the contract price and the market 
 value of the goods at the time when the contract is 
 broken.' The market value is taken because it is pre- 
 sumed to be the true value of the goods to the purchaser. 
 
 ' Hickman w Hayncs (\S75) 10 C.P. 598; Jones v. Gibbons (1853) 
 ■8 Ex. 920. 
 
 '^ See Sect. 37, and cintc, p. 172. 
 
 •• Greaves v. Ashlin (1813) 3 Camp. 426. 
 
 * Sect. 51 (1). •■ Sect. 51 (2). « Sect. 51 (3). 
 
 " Barrow w A ma lid (1846)8 Q.B. 604; Leigh v. Paterson (1818) 
 8 Taunt. 540; Gainsfordv. Carroll (1824) 2 B. & C. 624 ; Valpy v. 
 OaA;/cj (1851) 16 Q.B. D. 941 ; Peterson v. Eyre (1853) 13 C.B. ibi ; 
 Griffiths V. Perry (1859) 1 E. & E. 680; Josling v. Irvine (1861) 6 H. 
 & N. 512 ; Ashmore v. Cox (1899) 1 Q.B. 436 ; Williams Bros. v. Agius 
 (1914) A.C. 510. 
 
 \
 
 RIiMKDIES FOR BUIIXCH OF CONTRACT. 205> 
 
 Where the buyer does not ^et the oroods he boui^ht. 
 it is assumed that these would be worth to him, if he 
 had them, what they would fetch in the open market; 
 and hf should receive by way of damages enough to 
 enable him to buy similar goods in the open market.' 
 Damages, as a rule, are not increased or lessened by 
 circumstances arising subsequent to the moment of 
 default." The market is the place to which the goods 
 are to be carried according to the intention of the 
 parties as declared by them or to be inferred from the 
 circumstances; priind facie, the market is the place 
 where the buver was to take delivery;' but if the goods 
 were intended for a resale, and this fact was known to 
 the seller, the market price is to be fixed by reference 
 to the price ruling at the place to which they were 
 ultimately to be carried.^ \Vhere there is no market at: 
 the place of deliverv, the market price at the nearest 
 place, or in a controlling market, or at a place which 
 according to the course of dealing between the parties 
 is the destination of the goods, less the cost of carriage, 
 mav be taken/ Tf the delivery is to be made in instal- 
 ments, the measure of damages is the sum of the differ- 
 ences of the market value at the several times of deliver}- ; 
 and the damages are to be thus calculated, though the 
 action is brought upon a complete breach before the 
 times for deliverv have all elapsed.* The full market 
 value in every case is to be taken, though the goods 
 have become enhanced in value since the sale, owing 
 to scarcity, or increased demand, or any other cause. ^ 
 The buyer cannot claim damages for the loss of profit 
 on a resale of the goods at a price higher than the market 
 price, unless the seller had notice of the intended 
 
 ' Wertheim v. Chicoutiiiii Pulp Coy. (1911) A.C.311 : and see SAroHf/ 
 V. Austin (1883) Cab. & Ell. 119. 
 
 •^ Barry V. Van den Hurk (1920) 36 T.L.R. 663; cf. Ogle v. Vane 
 (1868) 3 Q.B. 272. 
 
 ^ Hinde v. Liddell (1875) 10 Q.B. 265: Werthciw v. Chicoutiini 
 Pulp Coy., supra. 
 
 * Van den Hurk v. Martens & Co. (1920) 1 KB. 850. 
 
 •^ Wertheim v. Chicoutiini Pulp Coy., supra. 
 
 ' Josling V. I)~i'ine, supra ; Roper v. Johnson (1873) 8 C.P. 167 ; 
 Brown v. Muller (1872) 7 Ex. 319. 
 
 ^ Josling V. Irvine, supra.
 
 206 VENDORS AND PURCHASERS. 
 
 resale, so as to make him liable for the risk.' If the 
 contract price and the market price are equal in amount, 
 the damages recoverable are only nominal." If the 
 buyer has paid the price, he is entitled to the full market 
 value of the goods at the time appointed for delivery ; 
 and the same rule applies where the price has been 
 paid by a bill ; but if the bill is subsequently dis- 
 honoured the buyer is in the same position as if he had 
 not made payment, and can only recover the difference 
 between the contract price and the market value. If 
 payment of the price was a condition precedent to 
 deliver}^ and the buyer has not made payment, either 
 b}^ reason of the dishonour of the bill or otherwise, the 
 seller is excused altogether.^ Where the buyer has 
 paid an increased price in special consideration of 
 delivery b}' a certain day, he is not thereby entitled to 
 greater damages.^ 
 
 If the buyer forbears delivery at the request of the 
 seller, the damages will be regulated by the state of the 
 market when he withdraws the forbearance and claims 
 delivery, and he will have the benefit of a rise in the 
 market at that time.* If the buyer forbears delivery for 
 his own convenience and not at the request of the seller, 
 the mere forbearance in fact does not entitle him to claim 
 the benefit of a rise in the market price after the 
 appointed time for delivery.® Neither buyer nor seller 
 can prevent the damages accruing from a fall or rise 
 in the market price by merely giving notice to the other 
 that he does not intend to accept or deliver the goods 
 when the appointed time 'comes, unless the other party 
 accepts such notice as an immediate breach of the con- 
 tract.' 
 
 ' Williams v. Reynolds (1865) 6 B. & S. 495 ; Thol v. Henderson 
 (1882) 8 Q.B.D. 457. 
 
 2 Valpy V. Oakley (1851) 16 Q.B.D. 941 ; Nichol v. Bcstunck (1858) 
 28L.J. Ex. 4. 
 
 ^ Ibid. ; and Gri-Ffiths v. Perry (1859) 1 E. & E. 680; and see Sects. 
 18. 28, 55. 
 
 ^ Brady v. Oastlcr (1864) 3 H. & C. 112. 
 
 •^ Ogle V. Vane (1868) 3 Q.B. 272 ; Tyers v. Roscdale Iron Coy. (1875) 
 8 Ex. 305 ; 10 Ex. 195 ; Hickman v. Haynes (1875) 10 C.P. 598. 
 
 8 Re Voss (1873) 16 Eq. 155. 
 
 ^ Frost V. Knight (1872) 7 Ex. Ill ; Johnstone v. Milling (1886) 16 
 Q.B.D. 460.
 
 KKMKniKS FOR BRr.\( H OF CONTRACT. JOT 
 
 The measure of damages by the market price is avail- 
 able only where there is a market for the goods bought 
 or sold to which buyer or seller can resort. " W'licre, 
 from the nature of the article, there is no marktn in 
 which it can be obtained, tiiis rule is not applicable; 
 but it would be unjust if, in such cases, the damage 
 must be nominal ; and there are several decisions show- 
 ing that such is not the law."* Where the buyer was 
 unable to procure goods of precisely the same kind and 
 was obliged, in order to meet his own contracts, to buy 
 the nearest substitute he could get, which was of a 
 superior qualitv and price, it was iield that he was 
 entitled to charge that price as damages.' And where 
 goods of a similar (|uality are not procurable in the 
 market, the price at which the buyer had contracted to 
 re-sell the goods in the ordinary course of his business 
 is presumptively the basis of value, subject to the 
 deduction of anv matter of mitigation;' btit the profits 
 or losses on a resale, tis such, cannot be charged as 
 damages unless the seller had notice that the goods 
 were bought for the purpose of resale, and only so far 
 as the terms of the resale were brought to his notice.* 
 Where the seller knew that the goods were intended for 
 shipment and sale abroad, and made default in delivery, 
 and delivered a portion only after delay, and the goods 
 were not procurable in tiie market, he was held liable 
 for the extra freight and insurance upon the late delivery, 
 but not for damages payable to the buyer under a sub- 
 contract/ The damages recoverable for non-delivery 
 of a specific chattel are measured by the cost of pro- 
 curing another, if reasonably possible, and if it cannot 
 be procured, or until it can be procured, the damages 
 are measured by the average profit made by the ordinary 
 use of such article.* The contracts made by the buyer 
 in the course of business for the use of the article when 
 
 ' Elbinger v. Armstrong (1874) 9 Q.B. 476. 
 
 2 Hinde v. Liddell (1875) 10 Q.B. 265. 
 
 ** Wertheim v. Chicoiitimi Pulp Coy. (1911) A.C. 301. 
 
 •■ Elbinger v. Armstrong, supra ; Thol v. Henderson (1882) 8 Q.B.D. 
 57 ; Grebert-Borgnis v. Nugent (1885) 15 Q.B.D. 85. 
 
 * Rorries v. Hutchinson (1865) 18 C.B. N.S. 445. 
 
 ^ Fletcher V. Taylciir (1855) 17 C.B. 21 ; Cory v. ThcJDics Ironuorks 
 Coy. (1867) 3 Q.B. 181.
 
 208 VENDORS AND PURCHASERS. 
 
 delivered, though not specifically chargeable as 
 damages, are evidence of the ordinary profits for which 
 the seller is liable.^ 
 
 Specific Performance. — In any action for breach of 
 contract to deliver specific or ascertained goods the 
 court may, if it thinks fit, on the application of the 
 plaintiff, by its judgment or decree direct that the con- 
 tract shall be performed specifically, without giving the 
 defendant the option of retaining the goods on payment 
 of damages. The judgment or decree may be uncon- 
 ditional or upon such terms and conditions as to 
 damages, payment of the price, and otherwise, as to the 
 court may seem just, and the application by the plaintiff 
 may be made at any time before judgment or decree.^ 
 
 At common law a contract to sell or transfer a thing 
 was treated as a merely personal contract, for the breach 
 of which damages, and damages only, were recoverable ; 
 but in equity the due performance of the contract itself 
 would, in certain cases, be enforced, upon the ground 
 of the inadequacy of the damages recoverable for the 
 breach. " The question in all cases where the specific 
 performance of an agreement relative to personalty was 
 sought was this : — Would damages at law afford an 
 adequate compensation for breach of the agreement ? 
 If thev would, there was no occasion for the interference 
 of equity;^ the remedy at law was complete; if they 
 would not, specific performance of the agreement, as in 
 the case of an agreement relating to realty, would be 
 enforced."* Thus, specific performance of a contract of 
 sale of goods would not be granted where the breach 
 was satisfied b}^ damages assessed at the market price 
 for which such goods might be bought or sold f and 
 where the plaintiff fixed a money value for goods it was 
 contrary to the practice of the court to order specific 
 delivery.* The same rule applied to a contract for the 
 
 1 Waters V. Towers {l853) 8 Ex. 401. 
 
 2 Sect. 52. 
 
 •" See Fofhcrgill v. Rou-laml (1873) 43 L.J. Ch. 252 ; 17 Eq. 132. 
 
 '' See White and Tudor's Leading Cases in Equit}'. 7th ed., vol. II., 
 423; Falcke v. Gray (1859) 4 Drew. 651. 658; Dounell v. Bennett 
 (1883) 22 Ch. D. 835 ; /. Jones & Sons v. Tankervillc (1909) 2 Ch. 440. 
 
 •' Cuddce V. Rutter (1719) 5 Vin. Ab. 538. 
 
 6 Whitcley, Ltd., v. Hilt (1918) 2 K.B. 808.
 
 KKAIEUIES FOR BRliACH OF CONTRACT. 209 
 
 sale of ^oods to be delivered at future times by instal- 
 ments, although dama,i,''es in such cases must be 
 assessed upon conjecture as lo tlic future market price;' 
 nor would the court i^rani an injunction to restrain the 
 seller from disposing- of the qoods otherwise than 
 according" to the contract.' Where there had been a 
 specific appropriation so as to vest rm ec|uitable title to 
 the goods in the buyer, and the ^oods so appropriated 
 could be identified, the court would jsrotect his pro- 
 prietary- right, but not otherwise.' By Section 2 of the 
 Mercantile Law Amendment Act, 1856, in actions for 
 breach of contract to deliver specific goods, the court had 
 a statutory power to order execution for the delivery 
 of such goods without giving the defendant the option 
 of retaining the goods upon paying the damages 
 assessed, and this right is now confirmed by the section 
 of the Sale of Goods Act under discussion. Where the 
 sale of goods is attended with exceptional circumstances, 
 as in the case of goods possessing special mercantile 
 value and no other like goods being procurable in the 
 market at the time,'* or where the goods have a special 
 and peculiar value to the party entitled, as in the ca.se 
 of valuable works of art,"' family picture.*^ and heir- 
 looms,* specific delivery will be ordered. 
 
 Remedy for Bre.\ch of Warranty. — Where there is 
 a breach of warranty b}- the seller, or where the buyer 
 elects or is compelled to treat any breach of a condition 
 on the part of the seller as a breach of a warranty, the 
 bu^■er is not by reason only of such breach of warranty 
 entitled to reject the goods; but he may (a) set up 
 against the seller the breach of warranty in diminution 
 or extinction of the price, or (6) maintain an action 
 against the seller for damages for the breach of war- 
 
 > Pollard V. Clayton (1855) 1 K. & J. 462; Fothcrgill v. Rowland, 
 infra ; Dominion Coal Coy. v. Dominion Iron Coy. (1909) A.C. 293. 
 
 2 Fothcrgill v. Rowland (1873) 17 Eq. 132. 
 
 '^ Hoare v. Dres.scr (1859) 7 H.L.C. 290. 
 
 J Hughes V. Graeme (1864) 33 L.J. Q.B. 335. 
 
 •"' Somerset v. Cookson (1735) 3 P. Wms. 389. 
 
 6 Macclesfield v. Davis (1814) 3 V. & B. 16. 
 
 14
 
 210 VENDORS AND PURCHASERS. 
 
 raniy.' The measure of damages for breach of warranty 
 is the estimated loss directly and naturally resulting, 
 in the ordinary course of events, from the breach of 
 warranty.^ In the case of breach of warranty of quality, 
 such loss is prima facie the difference between the value 
 of the goods at the time of delivery to the buyer and 
 the value they would have had if they had answered to 
 the warranty/ The fact that the buyer has set up the 
 breach of warranty in diminution or extinction of the 
 price does not prevent him from maintaining an action 
 for the same breach of warranty if he has suffered further 
 damage.* 
 
 The buyer's right to reject goods upon breach of a 
 condition has already been considered." The distinction 
 between a condition and a warranty has also been 
 considered/ And it is laid down by the Act that a 
 warranty is " an agreement with reference to goods 
 collateral to the main purpose " of the contract, such 
 that its breach does not give rise to a right to reject the 
 goods. ^ On the sale of specific goods the measure of 
 damages varies according to whether the goods have 
 been returned, or kept. A breach of warranty in itself 
 is not sufficient to entitle the buyer to reject the goods, 
 so that the buyer can reject the goods only where the 
 contract so provides in the event of a breach of warranty ; 
 or where the contract is made conditional upon the war- 
 ranty ; or where the seller agrees to take the goods 
 back ; or where the sale was effected by a fraudulent 
 warranty and the buyer has repudiated it on that 
 
 ' Sect. 53 (1) ; see Williamson v. Allison (1802) 2 East. 446; Wood 
 V. Smith (1829) 5 M. & Ry. 124 ; Brown v. Eilgingfon (1841) 2 Man. & 
 G. 279 ; Rowe Bros. v. Crosslcy (1912) 57 Sol. Jo. 144 ; Klian v. Diichc 
 (1905) 10 Com. Cas. 87. 
 
 - Sect. 53 (2). 
 •■' Sect. 53 (3). 
 
 •■ Sect. 53 (4) ; see Mondel v. Steel (1841) S M. & W. 858; Riggc \ . 
 Bnrbridgc (1846) 15 M. & W. 598; and see Davis v. Hedges (1871) 
 
 6 Q.B. 687. 
 
 ■' See ante, pp. 131-139; and see Street v. Blay (1831) 2 B. & Ad. 456 ; 
 Gompcrtz v. Denton (1832) 1 Cr. & M. 207 ; Heilbittt v. Hickson (1872) 
 
 7 C.P. 438 ; Heyworth v. Hutchinson (1867) 2 Q.B. 447. 
 
 6 See ante, pp. 131-139. 
 ^ See Sect. 62 (1).
 
 REMi;DIli:S FOR BREACH OF CONTRACT. 211 
 
 I^TDund.' If the i^oods have been returned, the measure 
 of damages is the price paid for them, unless the goods 
 were returned under an agreement to a different effect. 
 If the goods are kept, the measure of damages is the 
 diminution in value owing to the defect warranted 
 against; unless the buyer is, by the terms of the con- 
 tract, precluded from recovering any damages.^ The 
 loss of profit on a resale cannot as a rule be recovered; 
 but such a sale at a diminished price, after discovery of 
 the breach of warranty, would be evidence of the real 
 value of the goods/ Upon a sale of goods by descrip- 
 tion, the seller is bound to deliver goods answering to 
 the description, which he substantially warrants; the 
 buver mav refuse to accept inferior goods and sue the 
 seller for not delivering goods according to the con- 
 tract, in which action the measure of damage is the 
 value of goods of the description contracted for at the 
 time appointed for delivery, or the difference between 
 I hat value and the contract price, accordingly as the 
 price has or has not been paid. If the goods have been 
 <iccepted, the measure of damages is the difference 
 between the value of goods of the description contracted 
 for and the value of those actually delivered and 
 accepted.* By keeping the goods the buyer does not 
 alter his rights, but only his remedy; such an act does 
 not convert a condition into a warranty ; nor is the buyer 
 precluded from recovering damages in respect of a false 
 description unless the contract .so provides in the 
 clearest terms.* If the seller knew the buyer was 
 buving for the purpose of resale, he may al.so be liable 
 for the .special damage occasi()ned to the buyer by reason 
 of his not being able to complete such resale.* 
 
 ' See Sects. 11-15; and ante, pp. 134, 139, 140; and see Adatii v. 
 Ricluirds (1795) 2 Bl. A. 573 ; Head v. Tattersall (1871) 7 Ex. 7. 
 
 -• Caswell v.Coare (1809) 1 Taunt. 566; Clare v. Maynard (1837) 
 6 A. & E. 519 ; Cox v. Walker (1837) G A. & E. 523n. 
 
 •' Clare v. Maynard, supra. 
 
 ^ See Sects. 13, 30; and ante, pp. 136, 163. 
 
 ■'■ Wallis V. Pratt (1910) 2 K.B. 1003 ; (1911) A.C. 394. 
 
 e See Dingle v. Hare (1860) 7 C.B. N.S. 145.
 
 212 VENDORS AND PURCHASERS. 
 
 Section 4 — Interest. Special DaiAiages and Failure 
 OF Consideration. 
 
 Interest. — By the general rule of the common law, 
 interest, claimed as damages, is allowed only where 
 there has been an express promise to pay it, or where 
 such promise is to be implied from the usage of trade- 
 or other circumstances/ Where the price is payable 
 by a bill of exchange or promissory note, and the bill 
 is not given or made, an agreement on the part of the 
 buyer to pay interest on the price may be inferred, such 
 interest to date from the time when the bill or note 
 would have matured." 
 
 Special Damages. — If properly pleaded, special 
 damage, i.e., the particular damage resulting from the 
 special circumstances of the case, may be superadded to 
 the general damage which the law implies in any breach 
 of contract.^ The rule laid down in the case of Hadley 
 V. Baxendale^ applies to special damage as well as to 
 general damage ; the damage must be such as may 
 fairly and reasonably be considered as arising naturally 
 from such breach of contract itself, or such as may 
 reasonably be supposed to have been in the contempla- 
 tion of both parties at the time when the contract was 
 made as the probable result of the breach of it. The 
 mere communication of the special circumstances of the 
 case made by the one party to the other is not sufficient ; 
 the knowledge must be brought home to the party 
 sought to be charged under such circumstances that he 
 must know that the person he contracts with reasonably 
 
 1 Gordon v. Swan (1810) 2 Camp. 429n. ; Calton v. Bragg (1812) 
 15 East. 223; Higgins v. Sargent (1823) 2 B. & C. 348; Harrison v. 
 Allen (1824) 2 Bing. 4 ; Willmot v. Gardner (1901) 2 Ch. 548 ; L. C & 
 D. Rly. V. S. E. Rly. (1S93) A.C. 429; Re W. W. Duncan &Co. (1905) 
 1 Ch. 307. 
 
 2 Marshall v. Poole (1810) 13 East. 98; Farrv. Ward (1837) 3 M. & 
 W. 25 ; Rhodes v. Selsey (1840) 2 Beav. 359; Davis v. Smvth (1841) 
 8 M. & W. 399 ; Harper v. Williams (1843) 2 Q.B. 219. 
 
 •■' See Sect. 54 ; Radcliffe v. Evans (1892) 2 Q.B. 524 ; The Mediana 
 (1900) A.C. 113. 
 
 * (1854) 9 Ex. 341.
 
 Ui:.Mi:i)lliS FOR BKKACH OF CONTRACT. 213 
 
 believes that he arce]3ts tlit^ contract with the special 
 condition attacherl to it.'" 
 
 IvMi-iRR OF Consii)i;r ATiox. — \\'liei-e the c(»nsi(lera- 
 tion tor payment of the price has failed, a buyer who 
 has paid the price mav recoxcr it back' as nione\- had 
 and received hv the seller to the use of the bu\-er.^ 
 TIuis, the price may be recovered where the _i^(jods for 
 which the money Avas paid turn out to have been 
 stolen, and the buyer has been compelled to deliver 
 them up to the true owner;'' or where the goods are 
 different from those described in the contract of sale;"* 
 or where there has been a breach of a condition of 
 qualitv or fitness ;" or where the specific goods con- 
 tracted for had ceased to exist at the time of making the 
 contract;" or where the whole contract is rescinded, 
 either by agreement to that effect^ or under a ccjndition 
 subsecjuent, express or implied, in favour of the buyer;* 
 or where the buyer is entitled to treat a default by the 
 seller as an offer to rescind and rescinds accordingly." 
 Where the failure of consideration is only partial, the 
 buyer's right to recover the price paid depends on 
 whether the contract is entire or not. A failure of part 
 of an entire consideration is a failure of the whole, unless 
 
 ' See Brit. Col. Sawmill Cov. v. Ncttlcsliip (1868) 3 C.P. 499; 
 McMcrhon v. Field (1881) 7 Q.B.D. 591 ; Hamilton v. Magill (1883) 
 12 L.R. Ir. ISG; Elhinger v. Armstrong (1874) 9 Q.B. 473; Grcbcrt- 
 Borgnis V. Nugent (1885) 15 Q.B.D. 85. 
 
 - See Royal Bank of Canada v. Rex (1913) A.C. 283 ; but see Fitt v. 
 Ca.s.sancf (1842) 4 M. & G. 898; Hall v. Burnell (1911) 2 Ch. 551; 
 Boston Fishing Coy. v. An.sell (1888) 39 Ch. D. 339 ; Thomas v. Broun 
 (1876) 1 Q.B.D. 714. 
 
 '^ Eichholz V. Bannister (1864) 17 C.B. N.S. 708; Fdicards v. 
 Pearson (1890) 6T.L.R. 220. 
 
 ' See ante, p. 136. 
 
 ■' See Sects. 14 and 15, ante. pp. 137-140; Fortune v. Lingham (1810) 
 
 2 Camp. 416. 
 
 « Strickland v. Turner (1852) 7 Ex. 208. 
 
 ' Caswell V. Coare (1809) 1 Taunt. 566; Gomery v. Bond (1815) 
 
 3 M. & S. 378 ; Long v. Preston (1828) 2 M. & P. 262. 
 
 " Head V. Tattcrsall (1871) 7 Ex. 7. 
 
 " Walstab v. Spottisivoode (1846) 15 M. & \V. 501.
 
 214 VENDORS AND P URCHASERS. 
 
 part performance has been accepted, in which case it 
 becomes a partial failure of the whole, and neither the 
 w^hole nor part of the price paid can be recovered.' If, 
 on the other hand, the consideration is orig-inally sever- 
 able, a failure of part is a total failure of that part only, 
 and the buyer's rights are unaffected by his acceptance 
 of the other parts of the consideration. 
 
 1 Whinciip y Hughes (lcS71) 6 C.P. 86; Derhv v. Hun, her (18^7) 
 2 C.P. 247.
 
 PART III. 
 THE SALE OF REAL PROPERTY. 
 
 CHAPTER L 
 THE CONTRACT OF SALE. 
 
 SixTiox 1 — Formation of thk Contract. 
 
 Cii:xi:RAL Principles Applicable. — Sales of real pro- 
 jjeriy are subject to the same general legal principles 
 as other contracts, and what has already been stated as 
 to the capacity of parties, mutual assent, the require- 
 ments of the Statute of Frauds, and reality of consent, 
 need not, therefore, be recapitulated here.' 
 
 Sale under " Open " Contract. — An " open " con- 
 tract is one which simpl}' ascertains the parties, the 
 property to be sold, and the price, and leaves all other 
 terms to be implied by law-. What these implied terms 
 are, and the rights and obligations of vendors and 
 purchasers under them, will appear hereafter;' they are, 
 however, such that it is not desirable, as a rule, that the 
 ^•endor should undertake the full legal liability implied 
 imder an open contract, so that the contract of sale 
 usually contains express stipulations, excltiding or modi- 
 fying in particular respects these implied terms. If the 
 sale is by private agreement, the conditions are 
 embodied in the formal contract; if the sale is bv public 
 auction, the purchaser signs a memorandum attached to 
 or incorporating by reference printed particulars <md 
 conditions of sale. 
 
 Distinctixe Functions of Particulars and 
 Conditions. — It is the proper office of the particulars 
 of sale to describe the subject-matter of the contract; 
 that of the conditions of sale to state the terms on which 
 
 ' See, generally, Part I., ante. 
 
 '^ See under " Conditions of Sale," post, p. 217 ct sec/.
 
 216 VENDORS AND PU RCHASERS. 
 
 it is sold.' It is not the function of the particulars to 
 deal with the title to the property; it is the function 
 of the conditions to state what evidence of title the pur- 
 chaser is to have." An omission from or a misrepre- 
 sentation contained in the particulars will not necessarily 
 be remedied by information, however explicit, given in 
 the conditions, unless the purchaser's attention was 
 expressly directed to it.' But a mere ambip;-uitv in the 
 particulars may be corrected bv the conditions;^ and an 
 ambiguity in the conditions may be corrected by a 
 clearer description in the particulars.'' 
 
 Section 2 — Particulars of Sale. 
 
 Description of Property. — The particulars should 
 fairly and accurately describe the property to be sold* 
 in clear and unambiguous language,^ with such particu- 
 larity that the purchaser may be able to judge of the 
 nature or value of the property.*' If a plan is attached 
 and referred to in aid of the description, it should be 
 perfectly accurate.' 
 
 An agreement for the sale of land is, in the absence 
 of any restrictive expressions, an agreement to sell the 
 whole of the vendor's interest therein;'" and, unless the 
 contrary be expressed, such interest will be presumed 
 to be accompanied by all those advantages which are 
 legally incidental to it." Prima facie, ownership of the 
 
 ' Torrance v. Bolton (1872) 14 Eq. 130. 
 
 - Blaiberg v. Kccves (1906) 2 Ch. 175. 
 
 ■' See Robins v. Evans (1863) 2 H. & C. 410: Higginson v. C/ouv.s- 
 (1808) 15 Ves. 516; Torrance v. Bolton, supra. Jones \. Rinniier 
 (1880) 14 Ch. D. 588. 
 
 •• Caniherwell, &c., Bhlg. Socy. v. Holloxcay (1S79) 13 Ch. D. 754. 
 
 •"^ Lake v. Dean (1860) 28 Beav. 607. 
 
 « See Calvcrley v. Williams (1790) 1 Ves. 210, 213. 
 
 ^ Taylor V. Martindale (1842)1 Y.&C. C.C. 658; Synions v. James, 
 ibid., 490 ; Swa island v. Dearslcy (1861) 29 Beav. 430. 
 
 " Baskcomb v. Bcckwith (1869) 8 Eq. 100; Lcyland and Taylor's 
 Contract (1900) 2Ch.625; Brandling v. Pliimmer (1854) 2 Dr. 430; 
 Heywood v. Mallalicu (1883) 25 Ch. D. 357. 
 
 3 Denny v. Hancock (1870) 6 Ch. 1 ; Breit'cr v. Broxcn (1884) 28 Ch. 
 D. 309; Arnold v. Arnold (1880) 14 Ch. D. 270. 
 
 '" See ante, p. 50. 
 
 " Skull V. Glenister (1864) 16 C.B. N.S. 81 ; Cato v. Thompson (1882) 
 9 g.B.D. 616.
 
 Ri:.\L ruoprcRTY : contract of sale 'Z12 
 
 surface carries with it ownership of everything above 
 and l)elow the surface to the centre of the earth;' so 
 that where the vendor has no title to an undero^round 
 cellar," or to the minerals underneath,'^ the contract may 
 be avoided by the purchaser. But an agreement to sell 
 land to a Railwav or Water\\<>rks Company or to a 
 local authoritv for purposes of " sanitary works," does 
 not include the minerals unless they are expressly 
 inchided in the purchase.' 
 
 Any charge upon the estate, or right restrictive of the 
 purchaser's enjoyment of it, the release of which cannot 
 be procured by the vendor, should be stated ;^ and 
 reference should also be made to rights of way or water;* 
 but matters affecting the property and of which the pur- 
 chaser has notice in the legal sense of the word, need 
 not be mentioned ^ 
 
 Section 3 — Conditions of Sali:. 
 
 Gknkkalia. — The Conditions of vSale should be 
 printed and circulated some time previously to the sale, 
 or at any rate in the auction room, so as to give each 
 intending purchaser an opportunity of ascertaining the 
 terms on which the property is sold Many provincial 
 I^aw Societies have printed common-form conditions 
 which are used on every sale ; these are or may be modi- 
 fied or extended bv the inclusion of such special condi- 
 tions as the particular sale may necessitate or render 
 desirable. If the conditions are merely written and 
 produced and read over at the sale, but not circulated, 
 
 ' See Lewis v. Branthwaite (1831) 2 B. & Ad. 437; Keyse v. Powell 
 (1853) 2 E. & B. 132. 
 
 ■^ Whittington v. Corder (1852) If) jiir 1034. 
 
 •■' Uppcrton V. Nicholson (1871) 6 Ch. 436. 
 
 ^ Rly. CI. Consol. Act, 1845, Sect. 77; Wat. CI. Act, 1847, Sect. 18; 
 Pub. Health Act, 1875 (Support of Sewers) Amendment Act, 1883. 
 
 ■'' See Torrance w Bolton (1872) 8 Ch. 118 ; Nottinglutni Brick Coy. 
 V. Butler (1886) 16 Q.B.D. 778 ; Re Davis ami Cavey (1888) 40 Ch. D. 
 601 ; Seaman v. Vinnlrev (1810) 16 Ves. 390: Rawsilen v. Hurst (1858) 
 6 W.R. 349; Re White and Smith (1896) 1 Ch. 637 ; Re Haedicke and 
 Lipski (1901) 2 Ch. 666. 
 
 ^ See Heywood v. Mallalieu (1883) 25 Ch. D. 357. 
 
 ' SeeBailevv. Barnes (1S94) 1 Ch. 25: White v. Cuddon (1842) 8 
 C. & F. 766: Hayford v. Criddle (1855) 22 Beav. 480; but see p. 30, 
 ante.
 
 218 VENDORS AND PURCHASERS, 
 
 a purchaser is very liable to be misled or insufficiently 
 informed on some material point, and the contract may 
 then be liable to rescission.^ 
 
 Biddings. — At sales by auction, it is usual to stipu- 
 late that the amount of each biddino^ shall be such sum 
 as is specified in the conditions or such sum as shall be 
 given bv the auctioneer at the sale; that no bidding shall 
 be retracted, notwithstanding- that such a stipulation may 
 be unenforceable;^ that the highest bidder shall be the 
 purchaser, subject to any rights reserved by the vendor;^ 
 and that in case of any dispute as to biddings, the 
 auctioneer shall put up the property again at the last 
 undisputed bidding. 
 
 Vendor's Reservations. — Section 5 of the Sale of 
 Land by Auction Act, 1867, provides that the particulars 
 or conditions of sale shall state whether the land will 
 be sold without reserve or subject to a reserved price, or 
 whether a right to bid is reserved ; and if it is stated that 
 such land will be sold without reserve, or to thai effect, 
 then it shall not be lawful for the seller to employ any 
 person to bid at such sale, or for the auctioneer to take 
 knowingly any bidding from any such person. Section 
 6 of the same Act provides that where the sale is declared 
 either in the particulars or conditions of such sale to be 
 subject to a right for the seller to bid, it shall be lawful 
 for the seller or any one person on his behalf to bid at 
 such auction as he mav think proper.* It is, therefore, 
 usual to provide that the vendor reserves the right to 
 bid as often as he mav please ; and if the sale is subject 
 to a reserved price, the right of bidding generallv is 
 reserved to the vendor as well. 
 
 Payment of Deposit. — Under an open contract of 
 sale, the purchase-monev is not payable until the time 
 fixed for completion, i.e., the time when the vendor has 
 shown a good title." The conditions of sale, however, 
 usually stipulate that the purchaser shall immediately 
 
 1 See Torrance v. Bolton (1872) 8 Cli. lis. and see ante, p. 23. 
 
 ^ See ante, pp. 35 and 36 : and seejovcs v. N'unncy (KS24) 13 Pr. 99 ; 
 Freer y. Riiiniicr (184^) 14 Si. 39\. 
 
 ■' See ante, pp. 23, 35 ; and intra , ne.xt paragraph. 
 
 ' See ante, pp. 23, 24, 
 
 ■ Binks V. RoL-ehv (1819) 2 Suanst. 222; Gray v. Sftrnion (1836) 
 1 M. & W. 695.
 
 Ri;.\L PROPKKTV : CONTRACT OF SALM. 219 
 
 after ihe sale pav a deposit of a certain amount (usually 
 ten per cent, of tlii' piircliase price), and that it shall be 
 paid either to the auctioneer or to the vendor's solicitor. 
 The payment of the deposit serves as a guarantee for the 
 due performance of the contract by the purchaser; on 
 completion it is applied as part payment of the purchase- 
 monev,' and the purchaser cannot elect to forfeit the 
 deposit and avoid the a<i"reement." It is usual and ad\is- 
 ahle to stipulate expressly that the deposit shall be for- 
 feited if the purchaser fails to complv with the condi- 
 tions;' and should he fail to complete within the time 
 stipulated, or, if no time is fixed, within a reasonable 
 time, the deposit is forfeited even in the absence of any 
 express stipulation to that effect.' And the, purchaser 
 cannot recover the deposit if, after he has failed to pro- 
 vide the balance of the purchase-money at the time 
 fixed for completion and the vendor consequently 
 rescinds the contract, he discovers that the vendor had 
 no title to the land contracted to be sold.'' If, however, 
 the vendor is not able to make a good title, the purchaser 
 is entitled to the return of the deposit, and with interest 
 in the absence of anv express stipulation to the contrary.* 
 If the deposit is paid to the auctioneer, he holds it as 
 stakeholder,' unless the conditions provide expressly 
 otherwise ; the mere fact that upon the sale being effected 
 he signs the metnorandum of sale as the vendor's agent 
 is not sufficient to constitute him the vendor's agent to 
 receive the deposit." As stakeholder the auctioneer 
 should not part with the deposit until completion of the 
 purchase, except with the consent of both \('nd(»r and 
 
 ' Howe V. Suiith (1884) 27 Ch. D. 89: CoUiits v. St in, son (1.SS3) 
 11 Q.B.D. 143 : Soper v. Arnold (1889) 14 A.C. 435. 
 
 - Cnifchlcv V. Jcniini<Iu7iii (1S17) 2 Mer. 50C : Paliiur \ Tiiiify/c 
 (1S39) 9 A. & E. 520. 
 
 ■' See Gee v. Pearsc (1848) 2 De G. & S. 325. 
 
 •■ Howcv. Smith, supra; Spniiiiic v. Booth (1909) AC. 576; Hall 
 V. Burnell (1911) 2 Ch. 551. 
 
 •' Soper V. Arnold, supra ; Re Scott (*- Alvarez (1895) 2 Ch. 603. 
 
 « Want V. Stallibrass (1873) 8 Ex. 181 ; cf. Re Scott and Alvarez, 
 supra: Jacobs v. Revell (1900) 2 Cli. 858; Re HiicL-leshv and Atkin- 
 son's Contract (1910) 102 L T 214. 
 
 • See Harington V. Hoi<garf (1830) 1 H. <.\: Ad 575; Lee \ Mnnn 
 (1817) Holt. N.P. 569. 
 
 "- Fttrtado v. Luniley (1890) 6 T.L.K. 168.
 
 220 VENDORS AND PURCHASERS. 
 
 purchaser,' unless either party has in the meantime 
 broken the contract. Upon breach of the contract by the 
 purchaser or upon completion, the deposit should 
 be paid over to the vendor ; upon breach of the 
 contract by the vendor, the deposit should be returned 
 to the purchaser. If by the conditions of sale, 
 the auctioneer is expressly constituted the vendor's agent 
 to receive the deposit, he must pa}- it over to the vendor. 
 If the deposit is payable to the vendor's solicitor, the 
 solicitor is, unless the conditions expressly provide other- 
 wise, the vendor's agent to receive the deposit and not a 
 stakeholder.^ 
 
 Commencement of Title. — Before the passing of the 
 Vendor and Purchaser Act, 1874, a purchaser under an 
 open contract of sale might require title to be shown for 
 at least 60 years ; and if a deed 60 vears old was not a 
 sufficient root of title,'' the title had to be carried back 
 further still. Thus, if a deed 60 years old depended for 
 its validity on a prior deed, e.g., an appointment under 
 a power, the prior deed had to be abstracted, and 
 generally, whenever an abstracted deed recited or 
 referred to an earlier document, the purchaser was 
 entitled to the production of the earlier document. By 
 the Vendor and Purchaser Act, 18T4, the purchaser 
 under an open contract could only require title to be 
 shown for 40 vears, except that an earlier title than 40 
 years might be required in cases similar to those in 
 which earlier title than 60 vears might have been required 
 prior to the Act.' On the sale of advowsons. title must 
 be shown for 100 years ; on the sale of tithes or anv other 
 property held under a grant from the Crown, the 
 original grant must be shown together with the assign- 
 ments for 40 years preceding the contract of sale ; on the 
 sale of -easeholds, the lease even though more than 40 
 years old, must be produced with the assignments for the 
 
 ' See Smith v. Jackson (1816) 1 Madd. 620; Robinson v. Riittcr 
 (1855) 4 E. & B. 954 ; Ftirtado v. Litiiiley (1890) 6 T.L.R. 168. 
 
 -' See Edficll v. Day (1865) 1 C.P. 80 ; Wiggins v. Lord (1841) 4 Bea\-. 
 30; Ellis V. Goulton (1893) 1 Q.B. 350: Baniford v. Shitfflczrorflt 
 (1840) 11 Ad. & El. 926. 
 
 =' Seeposl, pp. 247-249. 
 
 ' Vendor and Purcliaser Act, 1874, Sect. 1 ; Rcjiiil}ic anil Slwriilini, 
 96 L.T. 451 ; Jacobs v. Rcvell (1900) 2 Ch. 858.
 
 Ri;.\l, I'ROPIIRTV : CONTRACT OK SAI.K. 221 
 
 4(1 years precedinii thi' contract of sale;' on the sale of 
 reversionar^' interests, the deed or other instrument 
 creating' the interest, with the assignnienls for the 4U 
 Years preceding the contract of sale, iniisl be shown.' 
 
 It is not often possible or advisable to show the title 
 for the full period imposed under an open contract of 
 sale. If, therefore, the vendor wishes to commence his 
 abstract of title with an instrument which is not otherwise 
 a good root of title, or if he wishes to deduce a title for 
 less than 40 vears, such instrimient should be specified 
 in the conditions of sale as the instrunient w'ith which the 
 title is to commence. A stipulation that the title shall 
 commence with a specified instrument is misleading and 
 unenforceable if it is used for the purpose of palming 
 off upon the purchaser a title which the vendor knows 
 to be bad/ or if the instrument is described in the condi- 
 tions as a conveyance simply, without disclosing the 
 fact that it is a voluntary one.' Wherever possible, a 
 purchaser should insist on having the full statutory 
 length of title, since he is deemed to have notice of every- 
 thing that he would have discovered if he had insisted on 
 and investigated the title for the statutory period '' 
 
 A mere stipulation that the title shall commence with 
 a specified instrument does not preclude the purchaser 
 from investigating the earlier title by other means;* Init 
 if it is stipulated that the earlier title, whether appearing 
 in the abstract or not, shall not be required, investigated 
 or objected to, this precludes inquiry and investigation 
 for every purpose," though if the vendor allows the 
 
 ' See Frend v. BucK'lcv (1870) 5 OH. 213; Williuiiis v. S/xn-o 
 (1S93) W.N. 100. 
 
 - See Vendor and Purcha.ser Ace, 1874. 
 
 ■' Re Scott and Alvarez (1805) 1 Ch. 596; Rcczr v. Hcrridflc (1888) 
 20 Q.B.D. 523 : Re Davis and Cavcy (1888) 40 Ch. I). COl : Re Hacdicke 
 aiid Lipski's Contract (1901) 2 Ch. 666; and see ante, pp. 76, 77. 
 
 * Re Marsh and Granville (1883) 24 Ch. D. 11. 
 
 •"• Re Cox and Neve's Contract (1891) 2 Ch. 109; Re Nisbet and 
 Potts' Contract (1905) 1 Ch. 391. 
 
 ° Sellick V. Turner (1S43) 11 M. & W. 722; Darliiiilton \. Hamilton 
 (1S54) Kay 550; and see Conveyancing Act, 1881, Sect. 3 (3); see 
 Nottingham Brick, &c.. Coy. v. Butler (1885) 15 Q.B.D. 261; (1886) 
 16 Q.B.D. 778 ; Re Cox and Neve's Contract (1891) 2 Ch. 109. 
 
 • Re Nat. Prov. Bank and Marsh (1895) 1 Ch. 190; Re Arran and 
 Knowlesden and Greer's Contract {\9\2) 2 Ch 141 ; and see Waddell 
 V. Wolfe (1874) 9 Q.H. 515.
 
 222 VENDORS AND PURCHASERS. 
 
 purchaser to inspect the deeds relating to the earher title, 
 and this discloses some defect in the title, the purchaser 
 is not precluded from raising the objection/ If the 
 vendor stipulates that such title as he has must be 
 accepted," he is not absolved from the obligation of mak- 
 ing out the best title he can from the material in his 
 possession f but the purchaser is bound by such a con- 
 dition, even though the title proves defective;" but he is 
 entitled to assume that the vendor has disclosed every- 
 thing relating to the title that it was his duty to disclose, 
 <)therwise the puchaser is not bound/ 
 
 Identity. — It is usually stipulated that the purchaser 
 shall not require any other evidence of the identity of the 
 property as described in the particulars with the property 
 described in the abstracted documents than that afforded 
 by a comparison of the descriptions in the particulars 
 and documents respectively, and a statutory declaration 
 by the vendor or some other person,* to be made if 
 required at the purchaser's expense, that the propertv has 
 been held consistently with the title shown by the abstract 
 during the last twelve years or such period as the case 
 admits. If the comparison afifords no evidence that the 
 property sold corresponds with that described in the 
 abstracted documents,'' or if the descriptions in the 
 abstracted documents differ from one another and from 
 those in the particulars,* in the absence of satisfactory 
 ■evidence of identity or where such differences cannot be 
 reconciled, the vendor's title is not established and the 
 
 ' Warren v. Richardson (1830) You. 1 ; Smitli v. Robinson (1879) 
 13 Ch. D. 148. 
 
 - See Frame v. Wright (1819) 4 Madd. 364 ; Groom v. Booth (1853) 
 1 Drew. 548 ; Tweed v. Mills (1865) 1 C.P. 39. 
 
 ■' Keyse v. Heydon (1853) 20 L.T. (O.S.) 244 ; Hume v. Pocock (1866) 
 
 1 Ch. App. 379; Goold v. Birm., Dudley, &c., Banking Coy. (1888) 
 4 T.L.R. 413 ; Best v. Hamand (1879) 12 Ch. D. 1. 
 
 < Wilmot V. Wilkinson (1827) 6 B. & C. 506 ; Duke v. Barnett (1846) 
 
 2 Coll. 337 ; Ashworth v. Moitnsev (1853) 9 Exch. 175; and see Re 
 Scott and Alvarez (1895) 2 Ch. 603 ; Re Nat. Prov. Bank and Marsh. 
 supra; Johnson v. Smiley (1853) 17 Beav. 223; Hopkiiison v. Cham- 
 berlain (1908) 1 Ch. 853. 
 
 •'' Re Haedickc and Lipski (1901) 2 Ch. 666. 
 
 6 See Hohson v. Bell (1839) 2 Beav. 17. 
 
 ^ Curling v. Austin (1862) 2 Drew. & Sm. 129. 
 
 " Flower v. Ilartopp (1843) 6 Beav. 476.
 
 RKAL JM^Ol'KRTV : CONTRArT OF SALK 223 
 
 purchaser cannot be r('(|uirccl lo complete, even thoiij^h 
 lie is precluded b\' this (^ondilion from calling" for further 
 evidence of title.' 
 
 Objicctioxs and Rhoiisiiions. — It is usually stipu- 
 lated that all objections and requisitions in respect of 
 the title, or evidence of title, or the abstract, or the par- 
 ticulars or conditions of sale, shall be stated in \vritinj4' 
 and sent to the vendor's solicitors within a fixed time 
 from the delivery of the abstract, and that any objection 
 or requisition not so stated and sent shall be considered 
 as waived; that in default of or subject only to such 
 requisitions or objections, the purchaser shall be deemed 
 to have accepted the title; and that in this respect time 
 shall be of the essence of the contract." Independently 
 of any stipulation to that effect, the vendor is bound to 
 deliver an abstract' of the title, and that within a reason- 
 able time,' Formerly, delivery within such time was 
 regarded at law as of the essence of the contract, and the 
 piir(^haser was relieved from performance of his contract 
 and entitled to the return of the deposit if delivery was 
 not made within that time;" but, in equity, time was not, 
 as a rule, of the essence of the contract ;* and now the 
 equitable rule prevails in all courts.^ But time may be 
 made essential bv express agreement of the parties, or 
 impliedly by the nature of the property or the circum- 
 stances of the case.* A condition that the vendor shall 
 deliver an abstract of title within a certain time is pre- 
 sumpiivelv not of the essence of the contract,' and it is 
 for the purchaser, on default by the vendor, to insist on 
 
 1 Robinson v. Musgrovc (1838) 2 Mood. & R. 92. 
 
 - See Blackburn v. Smith (1848) 2 Exch. 783 : Siiiitlison v. Pozi-cll 
 (1852) 20 L.T. (OS.) 105: Spurrier v. Hancock (1799) 4 Ves. 667; 
 Taylor \. Broxcn (1839) 2 Beav. 180;- PcgH v. Wisdcn (1852) 16 Beav. 
 239. 
 
 •' See pp. 2-\7 -251, post. 
 
 ' Compton V. Baglcy (1892) 1 Ch. 313. 
 
 « Bcrrv v. Young (1788) 2 Esp. 640. n. ; Wilde v. Fort (1812) 4 
 Taunt. 334 ; Noble v. Eclu-ardcs (1877) 5 Ch. 378. 
 
 " See Tillev v. Thomas (1867) 3 Ch. .\pp. 61 ; Roberts v. Berry (18531 
 3 De G. M. & G. 284. 
 
 ■^ Judicature Act, 1873, Sect. 25 (7) ; see Noble v. Edwardes, supra. 
 
 *• Tillcy V. Thomas, supra : Nokes v. Kilmorcv (1847) 1 De G. and 
 Sm. 444 ; Steedman v. Drinkle (1916) A.C. 275. 
 
 ® Roberts v. Berry, supra.
 
 224 VENDORS AND PURCHASERS. 
 
 the abstract being sent. If he neglects to apply for it on 
 the day fixed for delivery/ or within such a period as 
 will leave time for completion of the contract by the 
 agreed day," or if upon its being tendered after the day 
 fixed for delivery he receives it without protest/ he will 
 be held to have waived the condition ; but if the vendor 
 fails to deliver the abstract on being pressed to do so bv 
 the purchaser, the latter can treat the contract as at an 
 end as soon as a reasonable time has elapsed after such 
 demand/ Failure of delivery of the abstract within the 
 specified time relieves the purchaser from any condition 
 binding him to make his objections or requisitions within 
 a given time after delivery of the abstract,* and the same 
 result follows if the abstract delivered is imperfect, for 
 the time limited for making and sending in requisitions 
 only runs from the delivery of a perfect abstract/ i.e., 
 an abstract as perfect as the vendor could furnish at the 
 time of delivery, though it ma)' be an abstract of a 
 defective title/ 
 
 It is, further, usually stipulated that the abstract shall 
 be deemed perfect for the purpose of any particular 
 requisition or objection, if it supplies the inf(jrmation 
 suggesting the same, though otherwise defective. If 
 the abstract is imperfect, the purchaser is not precluded 
 from making any requisition as to matters subsequently 
 discovered which were not disclosed on the face of the 
 abstract, though the time for making such requisition 
 has expired/ The condition that all objections and 
 requisitions should be sent within a fixed time from the 
 
 J Guest V. Homfmy (1801) 5 Ves. 818. 
 
 •^ Jones V. Price (1797) 3 Anst. 924. 
 
 •^ Smith V. Biirnam (1795) 2 Anst. 527; ci. Re Priestley and 
 Davidson (1892) 31 L.R. Ir. 122; Oakden v Pike (1865) 11 Jur. (N.S.) 
 666; Seton v. Slade (1802) 7 Ves. 265. 
 
 * Venn v. Cattell (1872) 27 L.T. 469 ; Seton v. Slade, supra ; Hip- 
 well V. Knight (1835) 1 Y. & C. Ex. 401. 
 
 •' Upperton v. Nicholson (1871) 6 Cb. App. 436; Re Todd and 
 M'Faddcn (1908) 1 Ir. R. 213. 
 
 6 Hobson V. Bell (1839) 2 Beav. 17. 
 
 ' Morley M . Cook (1842) 2 Hare 106; Blackburn v. Suiith (1848) 2 
 Exch. 783; Want v. Stallibrass (1873) 8 Exch. 175; Pryce-J ones and 
 Williams (1902) 2 Ch. 517; Gray v. Fowler (1873) 8 Exch. 249. 
 
 ** Wardcv. Dixon (1858)28 L.J. Ch. 315; Gray v. Fowler (1873) 8 
 Exch. 249; Sherwin v. Shakspear (1854) 5 De M. & G. 517; Blacklow 
 V. Laws (1842) 2 Hare 40.
 
 HKAL I'K()1'I:KTY : CONTRAC T OF SA LE. 225 
 
 delivery of the abstract makes the timr f)f the essence of 
 the contract.' But it is waived or extended l)y ihe ven- 
 dor's delay in delivering the abstract," or in delivering 
 an incomplete abstract/ or by his accepting the objec- 
 tions and requisitions sent in after the time.' And the 
 condition does not apply where the vendor's title is 
 wholly bad ;^ so that it cannot be used to f(jrce a bad title 
 on a purchaser who has made his recjuisitions too late, 
 and the purchaser may in such cases recover his deposit." 
 
 Ri:scissiOX. — It is usually provided that, if the pur- 
 chaser shall make and insist on any objection as to title, 
 conveyance, or otherwise," which the vendor shall be 
 unable or unwilling to rem6ve or comply with, the 
 vendor shall, notwithstanding any previous negotiation 
 or litigation, have power to annul the sale. Though the 
 extension of the condition to objections to conveyance 
 has been disapproved, the practice has become general." 
 Sometimes the condition is made to apply only to 
 requisitions which the vendor shall be unable or unwil- 
 ling to comph- with on the ground of expense or 
 difficult}- ; such a qualification prevents a vendor from 
 being able to rescind the contract in order to accept a 
 better offer.® Where the words are " make or take an}' 
 objection, etc.," the right to rescind arises immediately 
 on the requisition being made.^" Where the word is 
 " insist," the right to rescind arises only where the 
 purchaser insists on his requisition, and the vendor is 
 
 1 Oakden v. Pike (1865) 34 L.J. Ch. 620; Rosenberg v. Cook (1881) 
 51 L.J. Q.B. 170. 
 
 - Uppcrton V. Nickolson (1871) 6 Ch. 436. 
 
 •' Blijcklo-w V. Laws, (1842) 2 Hare 40; Oakdcii v. Pike, supra; 
 Want V. Stallibrass (1873) 8 Ex. 175.- 
 
 ^ Cutts V. Thodcy (1842) 13, Sim. 206; (1844) 1 Coll. 223n. 
 
 •'' Want V. Stallibrass, supra. 
 
 ^ Ibid.; Rosenberg v. Cook, supra; Re Taiiqucrav-Willauiiie and 
 Landau (1882) 20 Ch. D. 465 ; Saxby v. Thomas (1891) 64 L.T. 65; 
 and see Re Pryce-Jones and Williams (1902) 2 Ch. 517. 
 
 ^ See Re Terry and White (1886) 32 Ch. D. 14. 
 
 ** See Hardman V. Child (1885) 28 Ch. D. 712; Re Deighton and 
 Harris (1898) 1 Ch. 458. 
 
 'J See Smith v. Wallace (1895) 1 Ch. 385. 
 
 1" Re Starr-Bowkett, &c. (1889) 42 Ch. D. 375 ; Woolcott v. Peggie 
 (1889) 15 A.C. 42. 
 
 15
 
 226 VExnoRs and purchasers. 
 
 unable or unwilling- to comply with it, and he communi- 
 cates the fact {() the purchaser.^ 
 
 It is necessary to distinguish between recjuisitions as 
 to conveyance and requisitions as to title. When the 
 purchaser merely requires the performance of an act 
 which the vendor is able to do by virtue of his own 
 interest in, or power over, the property, or the concurrence 
 of a party to the conveyance, which the vendor can direct 
 or compel, the requisition is as to the conveyance only;" 
 as where the concurrence of mortgagees is required;'' or 
 a legal estate or outstanding term is to be got in;'' or 
 trustees should be appointed for the purposes of the 
 Settled Land Acts/ But a requisition that certain 
 annuitants, whose concurrence was unnecessary, should 
 join in the conveyance;* or that a rent-charge should be 
 paid off, when the contract was for sale free from incum- 
 brances f or an objection to an tmdisclosed right of 
 way;* or that no title has been shown to the minerals;'* 
 or an objection on grounds not disclosed by the 
 abstract;'" or on account of irregularities in previous 
 transactions," have all been held to be objections to title. 
 
 In the absence of such words as " notwithstanding 
 previous negotiations," or the like, an answer by the 
 vendor made with the view to completing the title will 
 destroy the right of rescission.'^ but not where the right 
 
 1 Duddell V. Simpson (1866) 2 Ch. 102 ; Greaves v. Wilson (1858) 
 25 Beav. 290; Tnrpin v. Chambers (1861) 29 Beav. 104: and see 
 Bowman v. Hyland (1878) 8 Ch. D. 588. 
 
 '^ Bain v. FotherRill (1874) 7 H.L. 158. 
 
 •^ Soper V. Kemp (1847) 6 Hare 155 ; Greaves v. Wilson (1858) 25 
 Beav. 290. 
 
 ^ Kitehen v. Palmer (1877) 46 L.J. Ch. 611 ; Re Deighton ami 
 Harris (1898) 1 Ch. 458. 
 
 ^ Hatton V. Russell (1888) 38 Ch. D. 334. 
 
 6 Page V. Adam (1841) 4 Beav. 269. 
 
 ' Re G.N.R. Co. and Sanderson (1884) 25 Ch. D. 788. 
 
 " Ashburner v. Sexvell (1891) 3 Ch. 405. 
 
 '■' Mawson v. Fletcher (1870) 6 Ch. 91 ; Re Jackson and Haden (1905) 
 1 Ch. 472. 
 
 1" Gray v. Fowler (1873) 8 Ex. 249. 
 
 " Re Cooke and Holland (1898) 78 L.T. 100. 
 
 "* Tanner v. Smith (1840) 10 Sim. 410 ; Gardom v. Lee (1865) H. and 
 C. 651 ; cf. Morley v. Cook (1842) 2 Hare 106.
 
 KKAi. i'R()im;u) V : ( onikac r of salk. 2'^7 
 
 only arises on insisicnce bv the purchaser,' or where ihe 
 answer is stated to be made " without prejudice."^ The 
 rioht may also be lost by acquiescence in, or confirma- 
 tion of, the contract;' or bv the commencement, bv the 
 vendor, of an action for specific performance, and that in 
 si:)ile of the words "notwithstanding" litigation,'" as 
 regards objections already taken, ^ but not as regards 
 objections raised for the first time by the defence in the 
 action." The tendency of the Court is rather to regard 
 the commencement of an action by the vendor as strong. 
 but not conclusive, evidence of waiver of the condition/ 
 But though the words " notwithstanding litigation " are 
 absent, the vendor mtxy still rescind after the institution 
 of proceedings by the purchaser for specific per- 
 formance'* or for the return of his deposit,'' at any time 
 before the hearing; but no rescission can be made after 
 judgment, except by express agreement between the 
 parlies.'" AX'here the vendor rescinds pending litigation 
 and the amount of the purchase has been reasonable, 
 the court mav order the vendor to pay the costs of the 
 litigation till rescissiofi, in addition to the costs of 
 investigation of the title and the return of the deposit;" 
 the jurisdiction of the court in this respect cannot be 
 ousted by a condition that, on rescission, payment of 
 the deposit shall be in full satisfaction of all claims 
 whatever.'^ 
 
 ' See Duddell v. Simpson (1866) 2 Ch. App. 102 ; Turpin v. Chuiubcrs 
 (1861) 29Beav. 104 ; Greaves v. Wilson (1S58) 25 Beav. 290. 
 
 - Morley v. Cook (1842) 2 Hare 106 ; Tanner v. Smith (1840) 10 Sim. 
 410; Ga'rdom v. Lee (1865) H. and C. 651; and see M'CiiUoeh v. 
 Greilory (1855) 1 K. & J. 286. 
 
 •' See Cole v. Gibbons (1713) 3 P.W. 290 ; Flint v. Wood in (1852) 9 
 Ha. 618 ; Loxc v. Low (1905) 1 Ch. 140 ; Dc Montmorency v. Deverenx 
 (1840) 7 C. & F. 188. 
 
 ' Sheard v. Venables (1867) 36 L.J: Ch.. 924. 
 
 ■■' Gray v. Foxvler (1873) 8 Ex. 240; but see Warde v. Diclcson 1859) 
 88 L.J. Ch. 322 ; Isaacs v. Tozvell (1898) 2 Ch. 290. 
 
 •• Gray v. Fowler, supra. 
 
 ' See Lsaacs v. Towell (1898) 2 Ch. 292. 
 
 " Hoy V. Smithies (1856) 22 Beav. 510; Proctor v. Ptifih, infra. 
 
 '■' L'iaacs v. Towell, supra ; Proctor v. Puf^h (1921) 2 Ch. 256. 
 
 '" Re Arbib and Class (1S91) 1 Ch. 601. 
 
 " Re Hi}<gins and Hitcliam's Contract (1882) 21 Ch. D. 95; Re 
 Spindler and Mears Contract (1901) 1 Ch. 908; and see Duddell v. 
 Simp.-ion (1866) 2 Ch. 102 
 
 Re Spindler and Mcar, supra.
 
 228 VENDORS AXD PURCHASERS. 
 
 The right of rescission may be exercised even thouj^h 
 the point objected to falls within the condition as to com- 
 pensation;' but not where the vendor is unable to make 
 any title at all,^ whether to the whole or part of the pro- 
 perty f nor where he knows he is unable to make a good 
 title without the concurrence of persons whom he cannot 
 direct or compel to and who have not promised to con- 
 cur ;■* nor where the condition relates to title only and the 
 recjuisition is as to the conveyance ;^ nor where the vendor 
 has been guilty of wilful misrepresentation ;* nor where 
 the purchaser refuses to accept an indemnity against a 
 small contingent incumbrance/ The right must be 
 exercised reasonably and in good faith, and not 
 arbitrarily or capriciously ;^ or as a means of escaping 
 from the contract in order to accept a better offer;' or as 
 a means of ridding himself of his obligations under the 
 contract, as where he has undertaken to give possession 
 and the purchaser has made a requisition that a part^' 
 wrongfully in possession should be ousted before com- 
 pletion/" But the reasons for rescission need not be 
 stated, and the court will not infer that the vendor is 
 acting unreasonably where the right is exercised 
 apparently in good faith ;^' but there must be no failure 
 on his part to act as a prudent man would do/" 
 
 ^ Mawson v. Fletcher (1870) 6 Ch. 91 ; Ashburner v. Sewell (1891) 
 3 Ch. 405 ; Vowlcs v. Bristol, &c. (1900) 44 Sol. Jo. 592 ; Heppenstall 
 V. Hose (1884) 33 W.R. 30 ; Re Dames and Wood (1888) 29 Ch. D. 626 ; 
 Re Terry and White (1886) 32 Ch. D. 14. 
 
 2 Bowman v. Hvland (1878) 8 Ch. D. 588 ; Re Deiglifon and Harris 
 (1898) 1 Ch. 458; Re Jackson and Hadcn (1906) 1 Ch. 412. 
 
 ■^ Re Jackson and Haden, supra. 
 
 * Nelthorpe v. Holgatc (lS-14) 1 Coll. 203. 
 
 ® See ante, p, 226. 
 
 6 See Price v. Macanlay (1852) 2 D. M. & G. 347. 
 
 ' Re Weston and Thomas (1907) 1 Ch. 244. 
 
 « Re Starr-Bowkett (1889) 42 Ch. D. 387 : Vowles v. Bristol, supra : 
 Quinion v. Home (19061 1 Ch. 596; HoUixvell v. Scacotiibc, ibid, lib, 
 289. 
 
 9 Smith V. Wallace (1895) 1 Ch. 385. 
 
 1" Engell V. Fitch (1868) 3 Q.B. 314 ; and see Greaves v. Wilson 
 (1858) 25 Beav. 290. 
 
 " Re Starr-Bowkett, supra ; Re Simpson and Moy (1907) 53 Sol. 
 Jo. 376. 
 
 '^ Re Jackson ami Hadcn, supra.
 
 REAL I'R01'I;KIV : CONIKACT OK s\L\:. 22!) 
 
 Co.Mi'LETlON. — It is usual to specify the day on which 
 the purchase is to be completed.' Such a date is not of 
 the essence of the contract unless there is an express 
 stipulation to the contrary," or unless an intention that 
 it should be so can be implied from the circumstances 
 of the case, as in the case of the sale of leasehold pro 
 perty held for a short term which is running out pending' 
 completion, "^ or where the sale is of a lease fc^r lives,* or 
 of property required for immediate use in manufacture 
 or trade, e.g., a public house as a going concern ;' or ot 
 property sold for immediate residence.* Where the con- 
 dition of time was not originally essential, and where 
 such condition has been waived, time may afterwards be 
 made essential, as regards the claim for specific per- 
 formance, bv either party requiring completion within a 
 fixed time and giving notice to that effect.^ The notice 
 must give a reasonable time for completion with 
 reference to the circumstances of the case ;^ it ought to be 
 the longest time that could be reasonably required for 
 the performance of the acts that remain to be done." 
 If it is intended to rescind the contract for any further 
 delav, it must be unequivocally so expressed in the 
 notice;'" and the notice may be waived by negotiations 
 in respect of the transactions after the time therein 
 fixed." Where time is of the essence of the contract, 
 an extension bv request or agreement only substitutes 
 that extended time for the original time and does not 
 afifect the condition in any other respect;'^ and the time 
 
 ' See Stowell v. Robinson (1837) 3 Bing. N.C. 928; Gray v. Sntith 
 (18S9) 43 Ch. D. 208, 214 ; Sinipso)t v. Hitfilics and Arntstron^i (1897) 
 76 I..T. 237; Green v. Sevin (1879) 13 Ch. D. 589. 
 
 - Sec Tilley v. Thomas (1867) 3 Ch. App. 61. 
 
 •' Hudson V. Temple (1861) 29 Bea\ . 536. 
 
 ' Wheeler v. D'Hsterre (1814) 2 Dow. 359. 
 
 ■'• Coslake v. Till (1826) 1 Russ. 376 ; Co'wles v. Gale (1871) 7 Ch. 12 ; 
 Farnham Brewery v. Hunt (1893) 68 L.T. 440. 
 
 « Tilley V. Thomas, supra; Webb v. Hughes (1870) 10 Eq. 281. 
 
 ' Sticknev v. Keeble (1915) A.C. 386; and see Re Bayley and^Shoo- 
 smith (1618) 87 L.J. Ch. 626; and Brickies v. Snell (1916) 2 A.C. 599. 
 ^ Green v. Sevin, supra ; Compton v. Baglcy (1892) 1 Ch. 313. 
 9 See Crawford v. Toogood (1879) 13 Ch. D. 15S, per Fry. J. 
 '" Reynolds v. Nelson (1821) 6 Madd. 18. 
 " King V. Wilson (1843) 6 Bea\ . 124. 
 '-' Barclay v. Messenger (1874) 43 L.J. Ch. 449.
 
 230 VENDORS AND PURCHASERS. 
 
 is extended in fact bv continuation of negotiations for 
 completion/ provided the negotiation is continued bond 
 fide and not merely for the purpose of gaining time, as 
 in the case of a purchaser who is not prepared with the 
 purchase-monev ^ 
 
 Interest on Purchase-money. — It is usually stipu- 
 lated that interest shall be paid on the balance of the pur- 
 chase-money from the date fixed for completion until the 
 actual date of payment if the purchase-money is not paid 
 by the date fixed/ The condition may be so framed as 
 to make such interest parable if the delay in payment 
 arises (a) from any cause whatever / or (b) from anv 
 cause whatever other than the wilful default of the vendor, 
 or (c) from the default of the purchaser. Where the delay 
 is due to the wilful default of the vendor, the purchaser is 
 not bound to pay interest during such delay even if the 
 condition stipulates for payment in case of delay from 
 any cause whatever / but, otherwise, the purchaser is 
 bound by a condition framed in either of the first two 
 modes and can be compelled to pay such interest unless 
 he is able to bring the case within the exception.® If the 
 condition is framed in the third mode, the purchaser is 
 only liable to pay interest if the delay is attributable 
 to him and not if it is due to the state of the vendor's 
 title.' The onus of proof that the vendor was guilty of 
 wilful default and that this default was the cause of the 
 non-completion on the date fixed is on the purchaser.* 
 *' Default " is a purely relative term, just like negli- 
 gence. It means nothing more or less than not doing 
 
 ' Wood V. Bcrnal (1812) 19 Ves. 220; Wcbhv. Hughes (1870) 10 Eq. 
 281 ; Bnincr v. Moore (1904) 1 Ch. 305. 
 
 '^ Gee V. Peijrse (1848) 2 De G. & Sm. 325. 
 
 =* See Herbert v. Salisbury, &c., Rl\\ Cov- (1866) 2 Eq. 221 ; Re Keeble 
 and Stilwell's Brick Coy. (1898) 78' L.T. 383; Kershaw v. Kershaw 
 (1869) 9 Eq. 56 ; cf. Re RUcy to Strcatfield (1886) 34 Ch. D. 386. 
 
 ^ See Murk v. Huskisson (1827) 4 Russ. ]21n. 
 
 •^ See Vickers v. Hand (1859) 26 Bea\-. 630; Williams v. Glenton 
 (1886) 1 Ch. App. 200 ; Re Rilev to St real field, supra ; Re Wood and 
 Lewis's Contract (1898) 1 Ch. 433 ; Bennett v. Stone (1903) 1 Ch. 509. 
 
 « Ibid. 
 
 ' Jones V. Gardiner (1902) 1 Ch. 191 ; Perry v. sinith (1842) 
 Car. & M. 554 ; Denning v. Henderson (1847) 1 De G. & Sm. 689. 
 
 ** Re London Corporation and Tuhb's Contract (1894) 2 Ch. 524; 
 Bennett w Stone (1902) 1 Ch. 226.
 
 Ri:\i. I'Uoi'KUTY : CON ruACT nv salk. 2:J1 
 
 what is reasonablt' under the circumslances : — not doini^ 
 soiiK'thinii- which you nu.<::ht to do, havino: regard to the 
 relations which you occupy towards other persons in- 
 irrested in the transaction. " Wilful " implies nothini,' 
 hlameal)Ie. but merely that the person of whose action or 
 default the expression is used is a free ai^ent, and that 
 what has or has not been done arises from the spon- 
 taneous action of his will. It amounts to nothinij more 
 than this, that he Unows what he is doinc^, and intends to 
 do what he is doinj^". and is a free a<^ent." Thus, the 
 omission to deliver any abstract whatever, until long 
 after the time lixed for completion, is prima facie gross 
 negligence which avoids th(^ condition,^ even though 
 such an omission might admit of a satisfactory explana- 
 tion. Similarly if the delay to deliver an abstract is due 
 to a misinterpretation of the conditions;' or if the 
 vendors omit to procure the concurrence of necessary 
 parties;' or if the vendor goes abroad two days before 
 the dav fixed for completion.' A mere oversight or 
 honest mistake of fact is not a wilful default.® 
 
 ^IlSDicscRiPTiON. — Conditions providing for errors in 
 description of the property and either allowing or exclud- 
 ing the right to compensation in respect of such errors, 
 are intended to guard against unintentional errors only, 
 and do not applv to cases of actual fraud or misrepre- 
 sentation calculated materially to mislead the purchaser." 
 if the condition is so framed as to provide that any error 
 or omission in the description shall not rmnid the sale 
 but shall he the subject of compensation on either side, 
 
 1 Re Young and Harston (1885) 31 Ch. D. 168, per Bowen. L.J. at 
 p. 174; Re Hetling <rn<l Mcrfoii (1893) 3 Ch. 209. per Lindley. L.J. ; 
 and see note 8, p. 230. 
 
 - Wall is V. Sarel (1852) 5 De G. & S. 429. 
 
 ^' Re Pelly ami Jacob' s Contract (1899) 80 L.T. 43. 
 
 * Re Strafford and Maples (1896) 1 Ch. 235. 
 
 ' Re Young and Harsfon, sitpra. 
 
 « Bennett v. Stone (1902) 1 Ch. 226: Re Bayle^^Worthington and 
 Cohen's Contract (1909) 1 Ch. 048 ; North v. Percival (1898) 2 Ch. 12.S. 
 135; Sheruu'n v. Shakspear (1854) 5 De G. M, & G. 517: Williams v. 
 Glenton (1865) 34 Beav. 528 : (1866) 1 Ch. App. 200: Vickers w Hand 
 (1859) 20 Beav. 630; Palmerston v. Turner (1804) 35 Beav. 524. 
 
 • Clermont v. Tasbnrgh (1819) 1 Jac. & W. 112: Stewart v. Alliston 
 (1815) 1 Mer. 20: Diminock v. Hallett (1866) 2Ch. App. 21 : Norfolk \. 
 Worthy (1808) 1 Camp. 337; Tiirquand v. Rhodes (1808) 37 Lj. 
 Ch. 830.
 
 232 VKNDORS AND PUKCHASERS^^ 
 
 the purchaser must complete the purchase and accept 
 compensation for any deficiency, even though the defi- 
 ciency is considerable/ unless the property is substan- 
 tially different from that which the purchaser ag-reed to 
 buy." Independently of fraud and on the ground of the 
 materiality of the misdescription, the usual condition as 
 to compensation will not entitle the vendor to enforce 
 the contract against an unwilling purchaser : (a) where 
 the propertv is not of the same description as it appears 
 to be in the particulars, as where a leasehold for a long 
 term is described as freehold,^ a copyhold is described as 
 freehold,* or where land which was formerly copyhold 
 and has been enfranchised, but remains subject to the 
 rights of the lord of the manor in respect of minerals, is 
 described as freehold,^ or where an underlease is sold as 
 an original lease," or w^here land let on lease at a rack 
 rent is described as being let at a ground rent,^ or where 
 the occupation rent is mis-stated,* or where a house is 
 wronglv described as a brick-built house/ or (b) where 
 the property as described is not identical with that 
 intended to be sold/" or (c) where a material part of the 
 property described has no existence or cannot be found," 
 
 1 Re Faiccctt and Holmes (1889) 42 Ch. D. 150 : cf. Calcraft w 
 Roebuck (1790) 1 Ves. 221 ; Drewc v. Hanson (1802) 6 Ves. 675 ; Binks 
 V. Rokeby{\^lB,) 2 Swan. 222 ; McKenzie v. Hcsketh (1877) 7 Ch. D. 675 : 
 Englisli V. Murray (1883) 32 W.R. 84. 
 
 - Flight V. Booth (1834) 1 Bing. N.C. 370; Jacobs v. Rcvcll (1900) 
 2 Ch. 858 ; Jones v. Edncy (1812) 3 Camp. 285. 
 
 ■' Fenton v. Browne (1807) 14 Ves. 144 ; Drew v. Corpe (1804) 9 ^'es. 
 368 ; but see Conv. Act, 1881, sect. 65. 
 
 ^ Ayles V. Cox (1852) 16 Beav. 23; Uppcrton v. Nicholson (1871) 
 6 Ch. 436; Price v. Macaulay (1852) 2 D. M. & G. 339 ; Wadmore v. 
 Toller (1888) 6 T.L.R. 58 ; cf. Re Steel (1903) 1 Ch. 135. 
 
 ■' Upperton v. Nicholson, supra; Bellamy v. Debcniunu (1S91I 
 1 Ch. 412 ; Kerr v. Paivson (1858) 25 Beav. 394. 
 
 ^ Madeley v. Booth (1848) 2 De G. & Sm. 718; Broom v. Phillips 
 (1896) 74 L.T. 459. 
 
 ■^ Stewart v. Alliston (1815) 1 Mer. 26. 
 
 " Dimmock v. Hallett (1866) 2 Ch. 21 ; cf. Davenport v. Charsley 
 (1886) ,54 L.T. 372. 
 
 '•■ Powell V. Doubble (1832) Sug. 14 ed. 29 ; Arnold v. Arnold (ISSO) 
 14 Ch. D. 270 ; English v. Murray (1884) 49 L.T. 35. 
 
 ^" Leach v. Mnllett (1828) 3 C. & P. 115. 
 
 " Robinson v. Musgrove (1838) 2 Mo. & R. 92.
 
 Ki;\I. I'KOI'IRTY : CONTRACT OF SALE. 233 
 
 or where no title can be shown lo it,' or the lenf^th of 
 lerm of a leasehold propert\' is much overstated;' or 
 ((/) where the misdescription is upon a point material to 
 thi^ due enjoyment of the property, as where there are 
 imdisclosed easements,^ or undisclosed restrictive 
 covenants;' or (c) where the misdescription materially 
 affects the value of the property, as where the extent is 
 much understated or overstated,'' or w'here the property 
 is found to be subject to a long lease for lives at a low 
 rent;* or (/) where the case is such that the amoimt of 
 compensation cannot be cstiniaH^tl.' 
 
 " Speaking- oeneralh', ever^• purchaser has a right to 
 take what he can get, with compensation for what he 
 cannot get.'"* Where a vendor having onlv a particular 
 estate, e.g., a life estate, contracts to sell the fee simple, 
 or having only a partial interest, contracts to sell the 
 entirety, the purchaser may compel him, within limits 
 of hardship, surprise or the like, lo convey such estate 
 or interest as he has, and to allow compensation for as 
 much as he. cannot convey.' Thus a vendor has been 
 
 ' Dobcll V. Hutchinson (1835) 3 A. &. E. 355 ; and see Re Ncalc 
 unci Drew (1897) 41 Sol. Jo. 274 : Dcbcnham v. Sawhruigc (1901) 2 Ch. 
 98. 
 
 - Nash V. Wooiicrson (1885) 52 L.T. 49. 
 
 •' Shacklcton v. Sittcliffc (1847) 1 De G. & Sm. 609 : Dykes v. Blake 
 (1838) 4 Bing. N.C. 463; cf. Puckctt v. Smith (1902) 2 Ch. 258; and 
 see Re Brewer v. Hankin (1899) 80 L.T. 127 ; Shepherd v. Croft (1911) 
 1 Ch. 521. 
 
 ^ Flight V. Booth (1834) 1 Bing. N.C. 370; Rtidd v. Lascelles 
 (1900) 1 Ch. 815 ; Cato v. Thompson (1882) 9g.B.D. 61G ; Penisel ami 
 Wilson V. Tucker (1907) 2 Ch. 191 ; Re Davis and Cavev (1888) 40 Ch. 
 D. 601. 
 
 ' Price V. North (1837) 2 Y. & C. 620; Durham v. Legard (1865) 
 34 Beav. 611 ; Cordingley v. Cheesborough (1862) 4 D. F. & J. 379; 
 Leslie v. Thompson (1851) 9 Hare 268 ; Orange to Wright (1885) 54 
 L.J. Ch. 590; Bourne v. London. &c. Bldg. Coy. (1885) W.N. 109. 
 
 « Hughes V. Jones (1861) 3 De G. F. & J. 307. 
 
 ' Brooke v. Rounthu-aite (1846) 5 Hare 298 ; Smithson v. Pou-ell 
 (1852) 20 L.T. OS. 105; Ridgu\iy v. Gray (1849) 1 Mac. & G. 109; 
 Cato V. Thompson (1882) 9 Q.B.D. 616, 618. 
 
 " Hughes V. Jones (1861) 3 De G. F. & J. 315, per Turner, L. J. 
 
 3 Mortlock V. Buller (1804) 10 Ves. 316 ; Western v. Ri4ssell (1814) 3 
 V. & B. 187; Rudd v. Lascelles (1900) 1 Ch. 815; Lunilev v. 
 Ravenscroft (1895) 1 Q.B. 683 ; Hexter v Pearce (1900) 1 Ch. 341.'
 
 234 VENDORS AXD PURCHASERS. 
 
 compelled to convey an undivided moift\' with an abate- 
 ment of half the price ;' to convey an estate excepting the 
 minerals which have been reserved to a third party, with 
 compensation for the exception ;^ to convev a term where 
 he had contracted to sell the fee f to convey a life estate 
 with compensation for the remainder;* or to convey a 
 remainder with compensation for the life estate "^ 
 
 A condition framed to cover " errors in the descrip- 
 tion " of the property, does not extend to defects in title.* 
 A defect of title mav impose a contingency of loss or 
 disturbance which is not suitable for pecuniary compen- 
 sation ; "the proper compensation is an indemnity b^• 
 which the loss, if it happens, will be made good; and if 
 it does not happen there is no occasion for compensa- 
 tion."^ The court cannot compel a purchaser to take or 
 the vendor to give an indemnity, unless it forms part of 
 the contract; but the purchaser mav claim it as a condi- 
 tion of accepting a defective performance; and the 
 vendor may submit to specific peformance so far as he 
 is able, with indemnity for the deficiency/ Thus, on a 
 sale of a leasehold with a covenant for renewal which 
 could not be enforced to the extent stated in the par- 
 ticulars of sale, the purchaser obtained specific perfor- 
 mance with an indemnity against the risk of not obtain- 
 ing the renewal contracted for;'' but where leasehold was 
 sold, which was found to be subject to forfeiture under 
 the covenants in a superior lease, specific performance 
 was refused upon the ground that the defect was not the 
 
 ' Hooper v. Stnart (1874) 18 Eq. 683 ; Railcv v. Piper (1874) 43 L.J. 
 Ch. 704; Horrocks v. Rigby (1878) 9 Ch. D. 180. 
 
 2 Seaman v. Vawdry (1810) 16 Ves. 390. 
 
 ' Wood V. Griffiths (1818) 1 Swanst. 54. 
 
 ' Barnes v. Wood (1869) 8 Eq. 424 ; Horner v. Williams (1839) Jo. 
 and Car. 274. 
 
 •' Nelthorpe v. Holgate (1844) 1 Coll. 203 ; Barker v. Cox (1876) 4Ch. 
 I). 464 ; Thomas v. Bering (1837) 1 Keen, 729. 
 
 ^ Debenham v. Sawbridge (1901) 2 Ch. 98 ; Re Bexfits and Masters' 
 Contract (1888) 39 Ch. D. 110 ; Re Neale and Dreu's Contract (1897) 
 41 Sol. Jo. 274 ; Re Leyland and Taylor's Contract (1900) 2 Ch. 625. 
 
 " Milligan v. Cooke (1808) 16 Ves 13, per Eldon. L.C. 
 
 " Bahnanno v. Liimley (1813) 1 V. & B. 225 ; Wood v. Bcrnal (1812) 
 19 Ves. 220. 
 
 ^ Milligan \ . Cooke, supra.
 
 Ki:\i. i'R(M'i:iri\- : contuact OF sale. 2-ii> 
 
 prt)per subject of cuiiipcnsaiiitii or inclt*ninit\, hccaiise 
 ihe purchaser was liable to be deprived of the |)r()perty.' 
 
 PoSSKSSION OR RlXKIl'T OK RkNTS AND I'roFITS. — 
 
 It is usual to provide that upon completion of the pur- 
 chase the purchaser shall be entitled to possession' of ihc 
 land sold or receipt of the rents and profits accruini;- 
 therefom as from tlie day fixed for completion, and shall 
 be liable to all out<j^oin<,^s' as from that date, subject to <in 
 apportit)nment' of such rents and profits and outj^^oin^^s 
 if necessary. Prima facie, payment of the purchasc^- 
 monev, delivery of possession or receipt of the rents and 
 profits, and execution of the conveyance are concurrent 
 and dependent acts, whether a particular clay is 
 appointed for completion or not.' In the absence of ex- 
 press provision to the contrary, delivery and taking- of 
 possession ma\- be insisted iij^on as part of (he comple- 
 tion of the contract, and the vendor is entitled to the 
 actual possession or the receipt of the rents and profits 
 until the whole of the purchase-money is paid ; but he is, 
 at the same time, bound to discharije all ouliioinj^s dur- 
 ing- that period.' If the contract provides expressl\- for 
 possession at a fixed date, the vendor may be bound to 
 ""ive possession before the purchase-mont^v is paid,' or 
 the purchaser ma\' be recjuired to take possession with all 
 its incidental liabilities, before the vendor has made out 
 his title.' Since the completion of the contract is 
 dependent on the vendor making out his title," the pur- 
 chaser is not safe in paving the |)urchase-mone\ and 
 lakini:^ possession tintil the title is made oiu.'" 
 
 ' Fildcs V. Hooker (1818) 3 Madd. 193 ; Nouaillc v. Flight (1884) 
 7 Beav. 521 ; and see /?a/.i<ic-av v. Grav (1849) 1 Mac. & G. 109 : Halscy 
 V Grunt (1806) 13 Ves. 73 : I'lornibloxc v. Shirley (1806) 13 Ves. 81. 
 
 '^ As to this see post. p. 274. 
 
 ' See^o.s^, p. 236. ' See post, p. 236. 
 
 ■ SeeLcwis v. South Wtik-s Rlv. Cow (1852) 10 Hare 113 : Hcanl v. 
 Witilhani (1801) 1 Kast 619 ; Marsdcn v. Moore (1859) 4 H. & N. 500. 
 
 « Carrodits v. Sharp (1855) 20 Heav. 56; Barsht v. Tagg (\000} 1 
 Ch. 231 : Re Highctt and Binls Confraet (1902) 2 Ch 214 ; Bennett v. 
 Stone (1903) 1 Ch. 509. 
 
 ■ Gedyc V. Montrose (1858) 26 Hea\-. 45. 
 
 " See Tilley v, Thomas (1867) 3 Ch. App. 61, 66. 
 
 ■■' Gray v. Stanion (1836) 1 M. & W. 695. 
 
 '" Binks V. Rokeby (1818) 2 Swan. 222 : U'/7.so»/ v Claf)hani (1819) 1 
 Jac. & W. 36 ; and see Barsht \ Tagg, supra.
 
 236 VENDORS AND PURCHASERS. 
 
 Outgoings. — In the absence of any stipulations to the 
 contrary, the vendor must bear all expenses and out- 
 goings in respect of the property sold down to the time 
 when a good title is first shown, so that the purchaser 
 could safely take possession, and as from that time all 
 such expenses and outgoings must be borne bv the pur- 
 chaser.' The fact that the vendor stipulates that he shall 
 be entitled to the rents and profits up to the date of actual 
 completion in lieu of interest on the unpaid balance of 
 the purchase-money, in case of delav in completion, 
 does not relieve the purchaser from his obligation in 
 respect of the outgoings." Although under the Appor- 
 tionment Act, 1870,'' all rents and other periodical pay- 
 ments are to be considered as accruing from dav to dav, 
 and are apportionable accordinglv, it is usual to insert 
 in the contract an express provision for the apportion- 
 ment not only of rents and profits but also of outgoings. 
 The term " outgoings " includes not merely rates, taxes, 
 repairs and the ordinary expenses of cultivating or 
 managing the property,* but also expenses charged upon 
 the property sold of works executed by a local authority 
 under statutor}' powers.' Expenses incurred bv and 
 payable to a local authority in respect of work done are 
 not apportionable, and the liability for them as between 
 vendor and purchaser depends on whether or not they 
 are charged on the property, and if so charged, when the 
 charge was created. Where a charge is created it usuallv 
 attaches to the premises on the execution of the \\orks 
 and not at the time when the apportionment is made by 
 the local authority, among the various premises affected, 
 and the expenses must be borne bv the vendor or the 
 purchaser according as the wc^rks are completed before or 
 
 ' Rarsht v. Taf<^ (1900) 1 Ch. 231 ; Re Higlictf and Binl's Contract 
 (1902) 2 Ch. 214 ; Bennett v. Stone (1903) 1 Ch. 509. 
 
 . '^ Barsht v. Tagg, supra. 
 
 •■^ 33 and 34 Vict., c. 35, sect. 2. 
 
 ' Carrodiis v. Sliarp (]S55} 20 l^eav. 56: Be/fast Bank \ Callan 
 (1910) 1 Ir. R. 38. 
 
 •'■ See Public Health Act, 1875, sects. 150, 257; Re Bettesivorth and 
 Riehcr (1888) 37 Ch. D. 535 ; East Ham v. Aylett (1905) 2 K.B. U ; 
 Private Street Works Act, 1892; Stock v. Meakin (1900) 1 Ch. 683; 
 Surtccsw Woodhoiisc (1903) 1 K.B. 396; Midglcy v. Coppock (1879) 
 4 Ex. D. 309; Barsht v. Tagg, supra. Tuhbs v. Wynne (1897) 1 
 Q.B. 74.
 
 RKAL PRdPl.inV : (ONTUACT OK SALK. 2-37 
 
 after the date fixed for coniplelion.' If ilie t'xpenses are 
 not a charge upon the prrmises, they fall, under ihe con- 
 (.jition in the conttact, upon the vendor or the purchaser 
 according^ as thev become payable before or after the date 
 for completion.' In the absence of the condition, a pur- 
 chaser who pavs by reason of his liabilitx' as owner for 
 the time being cannot recover the amount from the 
 vendor.'^ Frequenth' a condition is inserted throwing" 
 upon the j)urchaser the expense of comphiuL;" with an\' 
 notices served by the local authority between the dale of 
 sale and completion.' 
 
 CowKVAXCK. — It is usual to stipulate thai upon pa\- 
 ment of the purchase-money the vendor shall execute a 
 proper conveyance to the purchaser or as he shall direct, 
 such conveyance to be prepared by and at the expense of 
 the purchaser. Such a stipulation is, however, merely a 
 statement of the legal rights of the parties.* The expense 
 of perusal and execution bv the vendor and all other 
 necessary parties, in the absence of conditions to the 
 contrary, falls on the vendor, who must also bear the 
 expense of getting in any outstanding legal estate, or of 
 any act necessary for completing his own title.* If the 
 concurrence of other persons besides the vendor is neces- 
 sarv to convey to the purchaser the whole interest sold, 
 such concurrence must be obtained and paid for bv the 
 Aer.dor in the absence of a contrary stipulation." But a 
 condition merely expressing that the purchaser is to bear 
 the expense of preparing the conveyance will not throw 
 upon him the expense of procuring the concurrence of 
 mortgagees,* though a stipulation that the assurance 
 " and every other assurance, act and thing required by 
 
 ' Stock V. Meakin (1879) 4 Ex. D. 309 , Re Waterhouse's Contract 
 (1900) 44 Sol. Jo. 645 ; Re Allen and Driscoll's Con-tract (1904) 2 Ch. 
 226. 
 
 - Midgley v. CoppocI; (1900) 1 Ch. 6^5: Tiihhs v \\'\)i)ic (1897) 
 1 O.B. 74; Barsht v. Tagf^ (1900) 1 Cli. 2J1. 
 
 '■' Egg V. Blayney (1888) 21 Q.B.D. 107. 
 
 ' Re Leyland and Taylor's Contract (1900) 2 Cli. 625. 
 
 • Poole V. Hill (1840) 6 M. & W. 835 ; Egmont v. Smith (1877) 6 Ch. 
 D. 469. 
 
 '^ Ibid. ; Reeves v. Gill (1838) 1 Bea\ . 375. 
 
 ■ Esdailc v. Oxenham (1824) 3 H. & C 225 ; Re Saiuhrand Walford 
 (1900) 83 L.T. 316. 
 
 ^ Re Sander and Walford, supra
 
 2-"^S VENDORS AND PURCHASERS. 
 
 the purchaser for perfecting or completing the vendor's 
 title or olher\vise '' should be " prepared, obtained, made 
 and done by and at the expense of the purchaser " would 
 do so,' Where the vendors are trustees or mortgagees, 
 words are often inserted stating that fact and that thev 
 will only enter into such statutory covenants for title as 
 are implied by their conveying in that character. Such 
 words are unnecessary provided that the character of the 
 vendors appears in the particulars or conditions or is 
 otherwise notified to the purchaser.^ 
 
 Title Deeds. — In the absence of any stipulations on 
 ■the subject, the vendor is bound to hand over to the pur- 
 chaser all title deeds in his possession or power which 
 relate exclusively to the property sold ; the fact that he 
 may be put to trouble and expense in obtaining the deeds 
 for this purpose is no answer to the purchaser's demand 
 for [hem.^ If it is desired to varv this lialDility on the 
 vendor's behalf a condition should be inserted accord- 
 ingly. Where the vendor retains part of the land 
 to which any documents of title relate, he is entitled t(^ 
 retain such documents.' Where documents of title are 
 retained bv the vendor, the purchaser is, in the absence 
 of stipulations to the contrary, entitled at his own 
 expense to have attested copies of them,^ and to a 
 covenant for, or an acknowledgment of his right to, their 
 production, and, unless the vendor is a trustee or mort- 
 gagee, an undertaking for their safe custody.^ 
 
 Sta:mps. — Prima facie, a purchaser is entitled to have 
 all documents forming the vendor's title properly 
 
 ' Re Willett and Argcnti (1889) 60 L.T. 735; and see Strong v. 
 Hawkcs (1856) 2 Jur. N.S. 388 ; Hopkinson v. Chamberlain (1908) 1 
 Ch. 853 : Re Wood and Lcxvis's Contract (1900) 83 L.T. 433. 
 
 - Worley v. Frainpton (1846) 5 Hare 560 ; Onsloiv v. Londcsborough 
 (1852) 10 Hare 67. 
 
 ■^ Re Diithy and Jcsson's Contract (189S) 1 Ch. 419; and see Austin 
 V. Croome (1842) Car. & M. 653 ; Re Williams and Newcastle's 
 Contract (1897) 2 Ch. 144. 
 
 ' See Vendor and Purchaser Act, 1874, sect. 2, rule 5; Re Williams 
 and Neii'castle's Contract, supra ; Re Lehmann and Walker's Con- 
 tract (1906' 2 Ch. 640. 
 
 ' Conveyancing Act, 1881. sect. 3 (6) ; see Dare v. Tucker (1801) 6 
 Yes. 460 ; 'Houghton v. Jewell (1808) 15 Yes. 176. 
 
 *5 See Y. & P. Act, 1874, sect. 2, rule 3 ; Conv. Act, 1881, sect. 9: cf. 
 Yates V. Plumbe (1854) 2 Sm. & G. 174 ; Cooper v. Emery (1844) 1 Ph. 
 .388 ; and see host, p. 244, as to sale of land in lots.
 
 Ri:.\L I'KOl'KKTV : CU N TRACT Ol-' SALi: 'S-tU 
 
 siainpi'd at tlic vendor's expense,' and, as rej^ards doeu- 
 menls executed since the Khh Mav, LSSS, an\- condition 
 excluding- this right on the part of the purchaser is void." 
 Hut it is usual to stipulate that the expense of stamping 
 any unstanipetl or insufficientlv stamped documents 
 executed before that date shall be borne In- the 
 purchaser. 
 
 i^xisTiNc; Ti:\AN( ii:s and Iv\si:.mi:nts. — It is usually 
 stipulated that the prop>erty is sold subject to the existing 
 tenancies and the claims of tenants'* and to rights of 
 way and water and other easements affecting it, to the 
 rights (if anv) of adjoining owners, and to all (if any) 
 chief rents and outgoings and incidents of tenure. Such 
 a condition does not absolve the vendor from his dutv to 
 disclose to the purchaser all matters affecting the pro- 
 perty which are within his knowledge.' and such matter^ 
 should, as far as pcjssible, be stated in the particulars. 
 But such a condition protects the vendor if it subse- 
 quenth' appears that there is some right subsisting in a 
 third part\' of which he was ignorant at the date of the 
 contract.' The condition, however, only applies to rights 
 available against the vendor and not to the rights of one 
 tenant as against another.* 
 
 Notwithstanding that the condition provides that 
 "anv error, mis-statement or omission shall not annul 
 the sale, nor shall any compensation or abatement be 
 allowed in respect thereof." the ventlor cannot enforce 
 specific performance with or without abatement, if the 
 mis-description is material and substantial,^ and in such 
 
 ' Whiting to Loonies (1880) 14 Ch. D. 822 ; (1881) 17 Ch. D. 10 : Hx 
 parte Birkbeck Freehold Laud Soc. (1883) 24 Ch. D. 119; Coleman \ 
 Coleman (1898) 79 L.T. 66. 
 
 ■^ Stamp Act, 1891, sect. 117. 
 
 •' See Re Derby and Fergnsson'^ Contract (1912) 1 Ch. 479. 
 
 * Heyu-ood \. Mallalieu (1883) 25 Ch. D. 357; Nottingham Brick 
 Coy. V, Butler (1886) 16 g.H.D. 778 ; Donghertv v. Oates (1900) 45 So!. 
 Jo. 119. 
 
 ■^ Russell V. Harford (1866) 2 Eq. 507. 
 
 « Daniel v. Anderson (1862) 8 Jur. N.S. 328; Delaf>arelle v. St 
 Martins-in-the-Ficlds Vestry (1890) 34 Sol. Jo. 545. 
 
 ■ Jacobs V. Revell (1900) 2 Ch. 858; Flight v. /ioo//i (1834) 1 Binp 
 N.C. 370; Portman v. Hill (1826) 2 Russ. 570; Whittemore v 
 Whittemore (1869) S Eq. 603; Re Arnold (1880) 14 Ch. D. 270; 
 Cordinglev v. Cheeseborough (1862) 4 De F. & J. 379; Re Terry .'- 
 U7i;7c (1886) 32 Ch. D. 14; Re Pnckett & Smith (1902) 2 Ch. 258; 
 Shepherd v. Croft (1911) 1 Ch. 521.
 
 240 VENDORS AND PURCHASERS. 
 
 circumstances the purchaser is entitled to rescind the 
 contract and recover his deposit/ On the other hand, 
 the purchaser cannot enforce the contract against the 
 vendor with compensation ; but he may take the propertv 
 without compensation." 
 
 Forfeiture of Deposit and Re-Sale.- — It is usual to 
 insert a condition providing for forfeiture of the deposit 
 and a re-sale of the property in case the purchaser does 
 not comply with the conditions of sale/ and that any 
 deficiency upon such re-sale, together with the costs 
 thereof, shall be borne by the purchaser. Even without 
 such a condition, the vendor is entitled to retain the 
 deposit if the purchaser's conduct amounts to a repudia- 
 tion of the contract,* for the deposit is not merelv a part 
 payment of the purchase-money but also an earnest of 
 the performance of the contract f or the vendor may 
 re-sell and bring an action for damages, i.e.. the amount 
 of the loss (if any) on re-sale, against the purchaser. "^ If 
 upon the re-sale, under an express power on that behalf 
 reserved by the conditions of sale, the estate produces 
 more than the original purchase-money, the purchaser 
 in default cannot call for an account of the surplus.^ A 
 condition providing that the purchaser making default 
 should pay a specified sum (exceeding the amount of the 
 deposit) as liquidated damages* w^as held at law not to 
 amount to a condition for forfeiture of the deposit f and 
 the usual condition for forfeiture of the deposit is not a 
 bar to an action for general damages if the purchaser 
 
 " Nottingham Brick Coy. v. Butler (1886) 16 Q.B.D. 778 ; Hcywood v. 
 Mallalieu (1883) 25 Ch. D. 375. 
 
 - Cordinglcy v. Cliccscborough (1862) 4 De G. F. & J. 379; Re 
 Terry & White s Contract (1886) 32 Ch. D. 14. 
 
 ^ See Gee v. Pearse (1848) 2 De G. & S. 325. 
 
 * Howe V, Smith (1884) 27 Ch. D. 89 ; Levy v. Stogdon (1898) 1 Ch. 
 478 ; (1899) 1 Ch. 5 ; Cornwall v. Henson (1900) 2 Ch. 298. 
 
 '• Howe V. Smith, supra; Collins v. Stimson (1883) 11 Q.B.D. 143; 
 Soper V. Arnold (1889) 14 A.C. 435. 
 
 •^ Noble V. Edwardes (1877) 5 Ch. D. 378. 
 
 ^ Ex parte Hunter (1801) 6 Ves. 97. 
 
 " /.c, a sum proportioned to the damage resultin.s; from the purchaser's 
 breach of contract and not in the nature of a penalty. 
 
 ^ Palmer v. Temple (1839) 9 A. & E. 508; Houc v. Smith, supra, 
 100.
 
 RKAI, I'ROPKRIA : CONTRACT OF SALE. 1^41 
 
 refuses to complete;' but after a re-sale at a loss the 
 vendor cannot sue for the original purchase-money.^ 
 Where the vendor re-sells and the deposit has been for- 
 feited, the deposit is taken into account in assessing (he 
 damages on a claim for deficiency on the re-sale.' Where 
 the vendor does not succeed in effecting a re-sale, he is 
 entitled to retain the deposit and to the costs of the 
 abortive sale.* 
 
 SkCTIOX 4 SlMXTAr. Conoition's. 
 
 FiXTURKS. — In the absence of express stipulations, 
 common fixtures, "* including such as are not strictly fix- 
 tures, will be held to be included in a contract for sale, 
 and Avill pass by the conve\ance, unless a contrar\- inten- 
 tion can be inferred.' It is usual to insert a condition as 
 to fixtures if the purchaser is to pay for any; and the 
 price is either staled in the particulars or the condition 
 provides that the price shall be as determined by valua- 
 tion in a specified manner. It is sometimes further 
 stipulated that failing such valuation, the fixtures shall 
 be taken at a fair valuation or price. This last provision 
 enables the court to direct a reference to ascertain the 
 price." 
 
 Tlmber. — If it is intended that the purchaser shall pay 
 separately for timber, express provision should be made, 
 as in the absence of express stipulations, such timber is 
 included with the land.* Where a particular statement 
 was appended to the descriptions of lots C and D that 
 the timber on them should iDe paid for, it was held that 
 the effect of the general condition was destroyed as to 
 lots A and B.* " Timber " includes oak, elm and ash, 
 
 1 Icely V. Green (1836) 6 N. & M. 467. 
 
 - Lamomi v. Duvall (1847) 9 Q.B. 1030. 
 
 •'' Ockemhii V. Henley (1858) 1 E. 1^. & E. 485. 
 
 • Essex V. Daniell (1875) 10 C. P. 538. 
 
 • See ex parte Quincy (1750) 1 Atk. 477. 
 
 6 Conv. Act. 1881, sect. 6; Colegrave v. Dias Santos (1823) 2 B. & C. 
 76; Hitchman v. Walton (1838) 4 M. & VV. 409 
 
 • See Wilks v. Davis (1817) 3 Mer. 507; Morgan v. Milnian (1S53) 
 3 De G. M. & G. 24. 
 
 " Higginson v. Cloves (1808) 15 Ves. 516. 
 9 Ibid. 
 
 16
 
 242 VKNDORS AND IH'RCHASERS. 
 
 everywhere; and, b}^ local custom, beech/ and various 
 other trees such as cherry, chestnut and walnut ;' but no 
 wood, however, is timber until of twenty years' growth.'' 
 Pollards may be timber by local custcjm. The expression 
 " timber and timber-like trees " includes not only 
 ordinary timber and such trees as bv local custom are 
 considered timber, but even " thinnings " and also, it 
 would seem, sound pollards/ 
 
 Covenants for Title. — Where the vendor is selling 
 under a trust for or power of sale, e.g., as trustee or mort- 
 gagee or executor or administrator as the case may be, 
 it is usual to insert a condition stating the character in 
 which he sells and providing that the purchaser shall not 
 require the concurrence of the persons beneficially 
 interested in the property sold or the purchase-money, 
 and shall not be entitled to any covenant for title other 
 than the statutory covenant by the vendor that he has 
 not encumbered. Such a condition does not absolve the 
 vendor from showing that he has power to sell in the 
 character stated, and it only expresses the rights of the 
 parties apart from the condition, since a vendor-trustee 
 need covenant against his own acts only, provided notice 
 of the fact that he is selling as trustee is given. "" If the 
 vendor is in fact a trustee, but notice of the trust has 
 been kept off the title, he should not disclose his 
 character but should stipulate that no covenant for title 
 should be given except an express covenant that he has 
 not encumbered. 
 
 Section 5 — Sale bv Auction in Lots. 
 
 Where land is sold by auction in lots, conditions of 
 sale similar to those discussed above are invariably made, 
 but they are expressed to bind the purchaser of anv lot. 
 It is usual to stipulate thdt any documents forming part 
 
 ^ Aubrey v. Fisher (1809) 10 East 446 ; Dashxcooci v. Maiiuiac (1891) 
 3 Ch. 306. 
 
 - Chaiulos V. Talbot (1731) 2 P.W. 606. 
 
 ■'' Foster v. Leonard (1582) Cro. Eliz. 1 : and see Honeywood w 
 Honeywood (1874) 18 Eq. 306; Dashwood v. Ma^niac, supra. 
 
 * Gordon V. Woodford (1859) 27 Beav. 603 ; Chandos v. Talbot, supra. 
 
 'See Worlcy v. Frampton (1846) 5 Hare 560; Onslow v. 
 Londcsborough (1852) 10 Hare 67 ; and see Re Saicyer S- Barins^'s 
 Contract (1884) 51 L.T. 356.
 
 REAL PROPERTY ; CONTRACT OF SALE. t34-3 
 
 of the title to several lots shall be retained bv the vendor 
 until all those lots have been sold, whether at the auction 
 contemplated or at some future sale, and shall then be 
 delivered to the nurchaser who shall then have boui^ht 
 the largest part in value of these lots.' Under the ("on- 
 \eyancing" Act, 1881, and in the absence of a contrarv 
 intention expressed in the contract," a purchaser at the 
 same auction of several lots held under the same title is 
 not entitled to more than one abstract of title, except at 
 his own expense.' If the land sold is subject to an entire 
 rent-charge, and the owner of the rent is imable or 
 tinwilling to concur in an apportionment thereof under 
 the provisions of the Inclosure Acts,' or to release the 
 land under the Law of Property Amendment Act, 18o9, 
 or the owner of the land is unable to redeem the rent- 
 charge under the Conveyancing Act, 1881/ it is usual to 
 stipulate that each purchaser shall pay a specified por- 
 tion of the rent-charge, and the amount apportioned to 
 each lot should, in such a case, be stated in the particu- 
 lars. If any part of the land comprised in two or more 
 lots is held on lease at an entire rent, or if all or any part 
 of the property comprised in one lot is let together with 
 other property at an entire rent, the consent of the tenant 
 to an apportionment of the rent should, if possible, be 
 obtained before ihe sale. If such consent cannot be 
 <ibtained, the conditions should provide for the appor- 
 tif)nment of the rent; and where it is clearlv specified, 
 it mav well be stipulated that the concurrence of the 
 tenant to such apportioniiK^nt shall not be rt^quired.'' 
 
 ' Grimths V. Hatchard (1S54) 1 K. & J. 17; Scott v. Jdckntan (1855) 
 _'l Beav. 110. 
 
 •^ Sect. 3 (9). 
 
 '■' Sect. 3 (7). 
 
 ' See Inclosure .'\ct, 1854, sects. 10, 14. 
 
 •■ Sect. 45. 
 
 « See Walter v. Maiiiulc (1820) 1 J. & \V. 181 ; Bliss v. Collins (1822) 
 5 B. & Aid. 876.
 
 CHAPTER 11. 
 
 PROOF AND INVESTIGATION OF VENDOR'S 
 
 TITLE. 
 
 Section 1. — Vendor's Obligation in General. 
 
 As TO Title to be Shown. — Where the contract for 
 the sale of hind is an open contract/ there is imphed an 
 agreement on the part of the vendor to make a good, 
 i.e., a marketable, title to the property sold.' A market- 
 able title is one which at all times and in all circumstances 
 can be forced on an unwilling purchaser.^ When the 
 vendor shows that he, or some person or persons whose 
 concurrence he can require or direct, can convey to the 
 purchaser the whole legal and equitable interest in the 
 land sold, his obligation is discharged.* It is sufficient 
 if this is done b\' the time fixed for completion,^ but 
 if before that time it appears that the vendor has not a 
 title, and is not in a position to obtain one, the pur- 
 chaser can repudiate the contract." The title is 
 " shown " when all the matters which, if proved, would 
 make the title good are stated in the abstract/ it is 
 " made " \\hen these matters are proved.** As it is not 
 often advisable or possible for the vendor to discharge 
 the obligation imposed upon him under an open con- 
 tract, it is usual to insert special conditions in the con- 
 
 ^ See ante, p. 215. 
 
 2 See Flitrcau v. Thonihill (1776) 2 Wm. BL 1078; St. Albans v. 
 Shore (1879) 1 Hy. BL 270; Ogilvie v. Foljawbc (1817) 3 Mar. 53; 
 Sontcr V. Drake (1834) 5 B. & Ad. 992 ; Gray v. Stanion (1836) 1 M. & 
 W. 695 ; Turner v. Turner (1852) 2 DeG. M. & G. 28 ; Ellis v. Rogers 
 (1885) 29 Ch. D. 661 ; Re Judge ami Sheridan (1907) 96 L.T. 451. 
 
 ^ Pyrke v. Waddinghaui (1852) 10 Hare 1. 
 
 * Braybrooke v. Inskip (1803) 8 Ves. 417 ; Caniberwell lUdg. Socy. v. 
 Holloivay (1879) 13 Ch. D. 754. 
 
 ' Boehni v. Wood (1820) 1 Jac. & W. 419. 
 
 « Forrer v. Nash (1865) 35 Beav. 167 ; Re Heads Trustees and 
 Macdonald (1890) 45 Ch. D. 310 ; Re Cooke and Holland (1898) 78 L.T. 
 196 ; Re Bryant and Barninghani (1890) 44 Ch. D. 218 ; Re Baker and 
 Sehnon (1907) 1 Ch. 238 ; Re Huckleshx and Atkinson (1910) 102 L.T. 
 214. 
 
 "' See post p. 247. 
 
 ** Parr v. Lovegrove (1857) 4 Drew 170.
 
 I'KOOl- AM) IWKSIKiAl ION OF TITLK. 245 
 
 tract o[ sale as to the title to be shown, in which case 
 the title which the purchaser ma\- reciuire is nnh' such 
 a title as the conditions of sale entitle him to.' Hul 
 such stipulations merel\- liniii the cxiclencc ot title that 
 may be required of the vendor, and do not exempt him 
 from the i^"eneral obli<4"ation of jDroxinL;- that he has the 
 rig'ht to con\e\- what he had sold.' 
 
 Lkngth of Titlk. — A i^ood title is shown bv proving 
 such ownership as is promised, expressly or impliedly, 
 by the contract of s^ile. I'nder an open contracn, the 
 purchaser is entitled, in the case of freehold or cop\- 
 hold land, to call for the title for a period of at least 
 40 years preceding the sale." In the case of freeholds 
 which were formerlx- copyhold, but enfranchised with- 
 in 4(1 years of the sale, the freehold title back to and 
 including the enfranchisement can be called for, and be- 
 yond that the copyhold title back to 40 years before the 
 contract, but not the title to make the enfranchisement.' 
 In the case of leaseholds for years, the vendor must pro- 
 duce the lea.se under which the property is held; and if 
 the lease be more than 40 years old, the title under the 
 lease must be proved for the 40 years next before the 
 contract, otherwi.se the whole title subsequent to the 
 lease; but the purcha.ser may not, in such a case, call 
 for the title to the freehold,'' nor, in the case of the sale 
 of propert\ held b\' underlease, to the title to an\- lease- 
 hold reversion.* In the ca.se of advowsons, the title 
 
 ' Uppcrton V. Nicholson (1871) 6 Ch. App. 436 ; Lawn'c v. Lees (1881) 
 7 App. Cas. 19 ; and see ciiife, pp. 221, 222. 
 
 ■^ See Phillips v. Cahic/cufih (1868) 4 g.B. 159: Wmldcll k . Wolfe 
 (1S74) 9 g.B. 515 ; Noftiii.iihaiii Brick- Coy v. Butler (1885) 15 Q.B.D. 
 261 : (1886) 16 g.B.D. 778 ; Re Cox and Neve's Contract (1891) "^2 Ch. 
 109. 
 
 •' Vendor and Purchaser Act, 1874, Sect. 1 ; see ante, p. 220; and see 
 Barnwell v. Harris (1809) 1 Taunt. 430 , Cooper v. Hnicry (1844) 1 Ph. 
 388; Colver v. Finch (1854) 19 Bea\ . 500 : Parr v. Lovegrove (1857) 
 4 Drew 170 ; Moulton v. Edmonds (1859) 1 De G. F. & J. 246: Re Cox 
 and Neve's Contract (1891) 2 Ch. 109: Phillips v. Caldcletiiih (1868) 
 4 Q.B. 159. 
 
 * Sug. V. & P. 372 ; Dart.. V. & P. vol. 1, 7th ed. p. 326. 
 
 • V. & P. .\ct. 1874. sect. 2 ; Jones v. Watts (1890) 43 Ch. D. 574 ; 
 Pnrxus V. Raver (1821) 9 Price 488; Soiiter v. Drake (1834) 5 P. & Ad.. 
 992. 
 
 " Convevancin^ Act. 1881, sect. 3 (1): and see Re Bevftts and 
 Master's Contract (1888) 39 Ch. D. 110; Goslinfi v. Woolf (1893) 
 1 g.B. 39.
 
 246 VENDORS AND PURCHASERS. 
 
 for at least lUO )ears before the contract may be called 
 for.' In the case of tithes or other property held under 
 grant from the Crown, the purchaser is entitled to pro- 
 duction of the original grant, and the title thereunder 
 for the 40 \'ears preceding the sale." In the case of a 
 reversionary interest, the instrument creating it must be 
 produced, and proof must be given that possession of 
 the land has been enjoyed under and in accordance with 
 the instrument so produced.^ It should be remembered 
 that the periods stated above apply only so far as the 
 contract of sale contains no express stipulations to the 
 contrary. 
 
 Proof of Tfile. — The chief and usual evidence of 
 title given on sale is documentary, i.e., the deeds bv 
 which the land sold has been conveyed on former sales 
 or mortgages thereof, and anv will or wills, bv which 
 the land fnay have been devised. The vendor, there- 
 fore, usually shows his title by delivering an abstract, 
 i.e., an epitome of the documents and facts which con- 
 stitute his title, to the purchaser, and makes his title 
 by proving the contents of the abstract by proper evi- 
 dence.^ In the absence of contrary stipulations, recitals, 
 statements and descriptions of facts, matters and parties 
 contained in deeds, instruments. Acts of Parliament 
 and statutory declarations, twenty years old at the date of 
 the sale, are deemed, except so far as they can be proved 
 to be inaccurate, sufficient evidence of the truth of such 
 facts, matters and descriptions,"" and the purchaser must 
 assume that recitals contained in the abstracted instru- 
 ments of any deed, will, or other document forming part 
 
 • See Dart, V. & P., vol. 1. 7th ed. 329. 
 ^ Ibid., p. 331. 
 
 •' Ibic!.. pp. 329, 330. 
 
 * Parr v. Lovegrove (1857) 4 Drew 170; Games v. Boinior, 35 W.R. 
 64; cf. Mullings v. Trindcr (1870) 10 Eq. 449; Home \. Wingfield 
 (1841) 3 Scott (N.R.) 340. 
 
 ^ Vendor and Purchaser Act, 1874, sect. 2 ; and see Re Wallis and 
 Grout (1906) 2 Ch. 206; Gould v. White (1S54) Kay 683; Drysdale v. 
 Mace (1854) 5 De G. M. & G. 103 ; Poppletou v. Buchanan (1858) 4 
 C.B. N.S. 20; Gillctt v. Abbott (1838) 7 Ad. & El. 783; Bringloe v. 
 Goodson (1839) 5 Bing. N.C. 738.
 
 I'RUOl- AND l\Vi:STl(JAT10N OF TlTLi:. '-^47 
 
 (jf ihe title prior to the time prescribed by law, or slipii- 
 Inted for the comniencenKMit of title, are correct and 
 s^"i\e all the inalnial contents of the iU'o.], will, or other 
 docnnit-nt so reciied, and that e\er\- document so recited 
 was duh' executed and perfectrd by an\ necessary 
 formalities.' 
 
 TiiLK iNDKR Statiti-: ()!■■ LIMITATIONS. — I'nder an 
 opi-n contract, the xcntlor nia\ (-ompel tlie purchaser to 
 take a title which depends on the Statute of Limita- 
 tions," that is to say, which depends on the extinij;^uish- 
 ment under that statute of the riglit and title of some 
 person or persons A\ho are shown to have been rip^ht- 
 fidh entitled.' But in such a case the vendor must 
 show that his possession has effectualh- barred the claims 
 of the riofhtfiil owner.' 
 
 SixTiox 2. — .\Hsrl^\(•| ok 'rrn,!-:. 
 
 I)i;i-"!.\ri lox.— The absli\ict of title is a summary of all 
 the docimients b\' which any dispositions of the pro- 
 pert v have been shown during- the period for whicli tith; 
 l.^.as to be shown, and of all the facts, such as births, 
 marriages, deaths, or other matters affecting the devolu- 
 tion of the property during the .same period. 
 
 Root of Titmc. — The abstract must always commence 
 with a document which is or has been agreed upon as a 
 proper root of title.* A good " root of title " is a docu- 
 ment which purports to deal with the entire legal and 
 equitable estates in the propert\- sold ; or should at least 
 afford prima facie evidence that the title to such legal 
 and ec{uitable estates was. at tln' date of such docu- 
 ment, consistent with the title as subsequently deduced; 
 
 ' Conveyancing Act, 1881. sect. 3 (3) ; cf. Arraii mi, I Knniclcsilcii mul 
 Crecr's Contract (1912) 2 Cli 141 : Re Lloyd's B<nil; mit! l.illiniitoiis 
 Contract (1912) 1 Ch. 601 
 
 - 3 and 4 Will. IV.. c. 27, sect. 34 
 
 •^ Scott V. Nixon (1843) 3 Dm. & War. 3.SS , (Janus \ lionnor. ii 
 W.K. 64 ; Re Atkinson and Horscll (1912) 2 Cli. 1. 
 
 * See Real Property Limitation Act, 1874, sects. 1-5 ; Redder v. Hunt 
 (1887) 18 Q.B. D. 565; Re Rarl of Devon's S.K. (1896) 2 Ch. 562; 
 facobs V. Revell (1900) 2 Ch. 858; Re Nisbeff and Potts (1905) 1 Ch. 
 391 ; (1906) 1 Ch. 386. 
 
 • Re Cox and Neve (1891) 2 Ch. 118.
 
 248 VENDORS AND PURCHASERS. 
 
 and should not be dependent for its validity upon any 
 previous document ; and should contain nothing- raising 
 a fair doubt whether the party or parties claiming the 
 interests there purported to be dealt with were in fact 
 entitled so to deal with them.' Where the document 
 specified in the conditicjns (^f sale is not otherwise a good 
 root of title within the description just given, but is 
 agreed upon as the document with which the title is to 
 commence, the nature or effect of the document should 
 be stated in the conditions or agreement, as otherwise 
 the purchaser will be entitled to assume that such docu- 
 ment discloses a good root of title. ^ 
 
 In the case of freeholds, a conveyance on sale is the 
 most satisfactory root of title f and next to that, a legal 
 mortgage in fee. A settlement 40 years old would 
 appear to be a good root;* but a condition that the title 
 shall commence with an instrument less than 40 years 
 old cannot be enforced if it omits to state that sucli 
 instrument is a voluntary settlement.' A specific devise 
 in a will would appear to be a good root,'^ but a general 
 devise is not sufficient without proof of the testator's 
 seisin.' An appointment 40 years old, which recites the 
 power under \\hich it was made, would appear to be a 
 sufficient root,* and the purchaser is precluded from re- 
 C|uiring the production of any abstract of the instrument 
 creating the power. ** A disentailing deed 40 years old 
 which recites the creation of the entail, would appear 
 to be a .sufficient root." An inclosure award is not of 
 itself a sufficient root of title, as an allotment is gener- 
 ally subject to the same uses as the land in respect of 
 which it is made, so that the title of the allottee to such 
 
 ' See Dart, V. & P., vol, 1, 7th ed.. p. 332. 
 
 2 Ibid., and see Re Marsh and Earl Granville (1883) 24 Ch. D. 11 ; 
 Noyes v. Patterson (1894) 3 Ch. 267. 
 
 ■■' 1 Prest. 16: Bolton v. London School Board (1878) 7 Ch. D. 770. 
 
 '' 1 Prest. 17. 
 
 « Re Marsh and Granville (1883) 24 Ch. D. 11. 
 
 " 1 Prest. 17. 
 
 ^ Parr v. Lovegrove (1857) 4 Drew 170 ; and see Dart, V. & P., vol. 1 . 
 332 ; and see Re Banister (1879) 12 Ch. D. 131. 
 
 "" 1 Prest. 7. 
 
 9 Conv. Act. 1881, sect. 3 (3) ; and see Dart, V. & P., vol. 1, 333. 
 
 '» 1 Prest. 7 ; and see Dart, V. & P., vol. 1, p. 333.
 
 FlUH)!-- AM) l\\ Is 1 ICAI H )\ c U- IITI.i:. 'J4!» 
 
 land should be abstracted.' I-Dr a similar icason. an 
 order of exchang"e or partition under the Inelosure Acts 
 is not a ^ood root of title.' In the case of copyholds, 
 the title sliould in general commence with a surrendi'r 
 and admittance.' In the case of leaseholds, the lease 
 forming' the root of title should not be an underlease.' 
 
 l^oci'.MKXTs TO hi: A hs I ractku.- The instrument 
 forming the root of litU', and every subsequent instru- 
 ment^ dealing with the legal estate in the property sold, 
 should be abstracted in chief in chronological order,'' 
 including mortgages, though satisfied,' and all leases 
 (except expired leases), and tenants' agreements, and 
 any orders of Court or other d(n'uments on which the 
 title depends.** A mere recital of a document (such as 
 a will) forming a linl< in the title, contained in a sul)se- 
 quent document, is not in g-eneral sufficient." Similarly, 
 all material facts, such as births, deaths, marriages, in- 
 testacies, or other matters, should be stated in order of 
 date. Documents affecting mereh' the equitable estate 
 in the propertx- sold, but which are immaterial to the 
 title, are frequently suppressed, as a purchaser of ihe 
 legal estate for value, without notice of such e(|uilable 
 interests, is protected.'" This is frequently the case 
 where the legal estate has been vested in trustees who 
 are intended to stand in relation to third parties as 
 absolute owners. In such ca.ses the con\-eyance to the 
 trustees is framed so as to keep the trusts off the title, 
 
 ' Sugden. V. <^- P. 373 : Williams v. Phillips 8Q.B.D. 437. 
 
 ■•^ SeeJiJcoiiih v. Tiinicr (1892) 1 QB. 47. 
 
 •'' See Dart, V. & P., vol. 1, p. Hi. 
 
 * See Re Bey fits mid Masters (1888). 39 Ch D 110. 
 
 •■^ Except in the case of leases more than 40 years old and similar cases ; 
 see ante, p. 245. 
 
 « Re Kbsu-ortli uiid Tidy (1889) 42 Ch. D. 23: Re Staiiifard .ni.l 
 Knight (1900) 1 Ch. 287. 
 
 " See Heath v. Cmr/ocA- (1874) 10 t:h .\pp. 22: Cray v. Fouler 
 (1873) 8 Exch. 249. 
 
 ** Re Hbsu'ortli and Tidy, supra : Re Moody aiul Yates (1885' 30 
 Ch. D. 344. 
 
 ' Re Staiiiford ami KnigJit. snpni. 
 
 '" Seejared v. Clements (1902) 2 Ch. 399: (1903) 1 Ch. 428: and see 
 AV Harman and Uxbridge Rly. Coy. (1883) 28 Ch. D. 720 ; Re Blaiherg 
 and Abrahams (1899) 2 Ch. 340.
 
 250 VENDORS AND PURCHASERS. 
 
 and this object would not be attained if the beneficial 
 interests were disclosed/ And documents creating 
 equitable charges which have been paid off, or are still 
 subsisting, but are intended to be paid off on completion, 
 are frequently omitted from the abstract.^ Where, 
 however, the abstract shows that the legal estate is in 
 a trustee or trustees, and the concurrence or consent of 
 the beneficiaries to the sale is necessar}-, the equitable 
 title must be abstracted. 
 
 Liability for Xox-Disclosure. — By the Law of 
 Property Amendment Act, 1859,^ a seller or mortgagor 
 or his solicitor \\ho conceals any instrument material to 
 the title or any incumbrance from the purchaser or 
 mortgagee, or who falsifies any pedigree on which the 
 title may or does depend, with intent to defraud, is 
 guilty of a misdemeanour, and also liable to an action 
 for damages. 
 
 Recjistered Land. — I'pon a sale of land registered 
 under the Land Transfer Acts, 1875 and 1897. the pur- 
 chaser cannot require any evidence of title except (a) the 
 evidence to be obtained from an inspection of the 
 register, or of a certified copy of, or extract from, the 
 i-egister ; and (b) a statutory- declaration as to the exis- 
 tence or otherwise of matters which are declared by Sec- 
 tion 18 of the Act of 1875, and by the Act of 1897, not to 
 be incumbrances. And if the proprietor of the land is^ 
 registered with an absolute title, and there are incum- 
 brances entered on the register or subsisting at the first 
 registration of the land, the purchaser is entitled either 
 to evidence of the title to these incumbrances, or to 
 evidence of their discharge from the register. The 
 purchaser is also entitled to the like evidence 
 where the registration is with a c^ualified title, 
 together with such evidence as to any estate, right or 
 interest excluded from the effect of the registration as a 
 purchaser would be entitled to if the land were unregis- 
 
 1 Re Harman and Uxbridge Rly . Coy . (1883) 28 Ch. D. 720; ReCarritt 
 (ind Personal Advance Co\. (1889) 42 Ch. D. 263; Re Blaiberg and 
 Abrahams (1899) 2 Ch. 340'.- Re Pope's Contract (1911) 2 Ch. 442. 
 
 2 See Drumiuond v. Tracer (1860) John. f)08 ; and see Dart, V. & P., 
 7th ed. 337. 
 
 •^ Sect. 24 ; amended by sect. 8 of the Law of Property Amendment 
 Act, 1860 ; and see Malioney \ . Davoren (1892) 36 Sol. Jo. 309.
 
 I'KUOr AND l.W KSTU.ATIOV <)F 'Ull.i:. 2ol 
 
 tered. If the land is reg^isteivd with a i)().ssessorv tith^ 
 the purcliaser is entithxl to such evidcnri' of the tith^ 
 subsisting, or capable of arising at the first registration 
 of the land, as the purchaser would be entitled to if tiie 
 land were unregistered. And wliere the vendor is no; 
 himself registered as proprietor of the land, or of a 
 charge giving a power of sale over it, he must, at the 
 purchaser's request, and notwithstanding anv stipula- 
 tion to the contrar}-, either procure the registration, or 
 procure a transfer from the registered proprietor to the 
 purcliasei-.' 
 
 ExPExsKs OF Makin'c; and I)i:i.i\i:i^ix(j Abstracts. — 
 The vendor is bound to make and deliver, at his own 
 expense a perfect abstract," even though the purchaser 
 has agreed to accept the title. ^ For the purpo.se of the 
 conditions of sale, an abstract is deemed to be perfect, 
 if it is as perfect an abstract as the \endor is able to 
 furnish at the time of delivery," though the title show n 
 l)y it may be defective. In the strict .sense of the term, 
 an abstract is perfect or complete when it shows a per- 
 fect title," i.e., when it shows that the vendor is either 
 himself competent to convev to, or can otherwise procure 
 to be vested in, the purchaser, the legal and equitable 
 estates free from incumbrances.* If the documents of 
 title are not in his possession, the vendor must himself 
 bear the cost of procuring them for the purpose of fur- 
 nishing the abstract; and Section -3 (G) of the Convey- 
 ancing Act, 1881, does not relieve the vendor in this 
 respect.' 
 
 ' L.T.A. 1897. sect. 16. 
 
 - Re Johnson and Tnsf in (1885) 30 Ch. D. 42; Re Priestley and 
 Davidson (1892) 31 L.R. Jr. 122 ; Re Stamford and Knii<ht (1900) 
 1 Ch. 287. 
 
 •■' Morris v. Kcarsley (1837) 2 Y. & C. 139: Keyse \. flavden (1852) 
 20 L.T. (O.S.) 244. 
 
 * Morley v. Cook (1842) 1 Hare 111 ; Want v. Stallibrass (1873) 
 8 Ex. 175 ; Gray v. Fowler (1873) 8 K.\. 279 ; Bnrnahv v. Eqiiit. Rev. 
 Soc. (1885) 28 Ch. D. 416. 
 
 * Morley v. Cook, supra. 
 
 ^ See Braybrooke v. Inskip (1803) 8 Ves. 436: Boelint \. Wood 
 (1820) 1 Jac. & W. 419. 
 
 ' Re Johnson and Titstin. supra : Re Stani/ord and h'night, supra
 
 252 VENDORS AND PURCHASERS. 
 
 ExPKNSEs OF Production of Deeds, etc.— By tlie 
 Conveyancing Act, 1881,' on a sale of any property, the 
 expenses of the production and inspection of all Acts of 
 Parliament, inclosure awards, records, proceedings of 
 Courts, Court rolls, deeds, wills, probates, letters of ad- 
 ministration, and other documents not in the vendor's 
 possession, and the expenses of all journeys incidental to 
 such production or inspection, and the expenses of 
 searching for, procuring, making, verifying, and pro- 
 ducing all certificates, declarations, evidence, and infor- 
 mation not in the vendor's possession, and all attested. 
 stamped, office or other copies, or abstracts of, or extracts 
 from any documents aforesaid, must be borne by the 
 purchaser who requires the same; and when the vendor 
 retains possession of any document, the expenses of 
 making any copy thereof, attested or unattested, which 
 a purchaser recjuires to be delivered to him. must be borne 
 by the purchaser. Thus the purchaser must pay the 
 costs of procuring the production even of a deed which 
 is the root of the vendor's title, if it is not in the latter's 
 possession,^ and of title deeds in the hands of the ven- 
 dor's mortgagees.^ But the above provision does not 
 relieve the vendor from malcing a proper abstract and 
 procuring the necessary documents for making the 
 abstract at his own expense ;' nor does it affect the 
 ordinary right of the purchaser to have the title deeds 
 handed over on completion, and any expenses incurred 
 in obtaining them for that purpose, if they are not in the 
 vendor's possession, must be borne by the vendor.* 
 Moreover, the above provision is subject to the expres- 
 sion of a contrarv intention contained in the contract for 
 sale.* 
 
 Where the documents are in the vendor's possession, 
 and are produced for inspection at the vendor's residence 
 or at or near the land sold, or at the office of his 
 solicitor, or of the solicitor's London agent," the pur- 
 
 ' Sect. 3 (6), (9). 
 
 '■^ Re Stuart and Olivant and Scadon's Contract (1896) 2 Ch. 328. 
 
 •' Re Willctt and Argenti (1889) 60 L.T. 735. 
 
 '' Re Stamford and Knight (1900) 1 Cli. 2S7. 
 
 ■'' Re Duthy and Jesson (1898) 1 Ch. 419. 
 
 " See Re Willctt and Argenti, supra. 
 
 '' See Dart, V. & P. 7th ed. 481.
 
 PROOF AND IN \KbTlCiATIO.\ OF TITLL:. 2b'6 
 
 cluiser must bear the^expense of inspecting them by his 
 own solicitor; but it" they are prockiced elsew herei tlie 
 vendor must defray any extra cost occasioned therebv/ 
 
 Section -J. — Proof of Title. 
 
 Abstracted Doclmexts. — The mere production of 
 tlie abstracted deeds and documents is generalh- deemed 
 sufficient proof of them. Provided a document comes 
 from the proper custody.' and there is no reason for sus- 
 pecting its authenticity, proof of the due execution of 
 such deeds and documents is not generallv required/ 
 and the presumption is that such deeds and documents 
 were executed or signed as appears thereon.' 
 
 Lost Documents. — Where the loss or destruction of 
 a deed can be proved. "" secondary evidence, which should 
 be the best available/ may be given of its contents; but 
 proof must also be given of its due execution and 
 delivery.' 
 
 Acknowledgments. — An acknowledgment bv a mar- 
 ried woman of a deed executed before 188-j, is proved 
 by an office copy of the certificate filed in the proper 
 office of the Court.* An endorsed memorandum of 
 acknowledgment is not sufficient, as the acknowledgment 
 has no effect unless the certificate is filed. ^ In the case 
 of deeds executed since the 1st January. 188•^ an endorsed 
 memorandum signed bv one commissioner is conclusive 
 evidence." 
 
 ' See Rippinghall v. Lloyd (1833) 5 B. & Ad. 742 ; Re Tryoti (1844) 
 7. Beav. 496 ; Alsop v. Oxford (1833) 1 Mv. & K. 564 ; Hgrlock v. Smith 
 '1837) 2 My. & G. 495 ; Hughes v. Wynne (1836) 8 Sim. 's. 
 
 - See Croitghton v. Blake (1843) 12 M. & W. 205. 208; Jacobs v. 
 Phillips (1845) 8 Q.B. 158; Meath v. Winchester (1836) 3 Scott. 561 
 
 ' See Dart. V. & P., 7th Ed. 348. 
 
 ' See Hobson v. Bell (1839) 3 Jur. 190. 
 
 See Green v. Bailey (1847) 15 Si. 542 ; Hart v. Hart (1S41) 1 Hare 
 1 ; Parr v. Lovegrove, 4 Drew 181. 
 " Re Halifax Commercial Bank and Wood (1898) 79 L.T. 536. 
 
 • Ibid. ; Bryant v. Busk (1827) 4 Kuss. 1 ; Southbv v. Hutt (1837) 2 
 M & C. 207 ; Monlton v. Edmonds (1859) 1 De G. F. &J. 246. 
 
 " Fines and Reco\eries .Act. 1833, sect. 88: Con\eyancing .\ct, 1882, 
 sect. 7. 
 
 ■' Jolly V. Handcock (1852) 7 Exch. 820. 
 
 '" Conveyancing .\ct, 1882, sect 7.
 
 254: VENDORS AND PURCHASERS. 
 
 Private Acts of Parliament. — A private Act of Par- 
 liament is sufficiently proved bv a copy purporting to be 
 printed by the King's printer/ or under the superin- 
 tendence or authority of H.M. Stationery Office." Everv 
 Act of Parliament passed after 1850 is a public Act 
 and is judicially noticed as such, unless the contrary is 
 expressly provided by the Act.^ Private Acts which have 
 not been so printed can be proved by an examined copv 
 of the Parliament Roll.* 
 
 Admittaxc!-:. — Admittance to copvhold is pr<n'ed hx 
 the copy of Court roll, signed by the steward. It is not 
 usual to require the steward's signature lo be verified.'' 
 
 AxXXUiTiES, — Cessation of a life annuity is proved by 
 a receipt for the last payment, signed by the annuitant's 
 personal representative, whose appointment is verified 
 by the production of the probate or letters of adminis- 
 tration.' 
 
 /Vppoixtmexts. — The appointment of an administrator 
 is proved by the letters of administration or by an official 
 certificate of the grant.' The appointment of a trustee 
 in bankruptcy is conclusively proved by the certificate 
 of the Board of Trade that he has been appointed.*^ 
 Where a power of appointment over property is vested 
 in a person and the power has not been exercised, the 
 fact of default seems to be sufficiently proved by a writ- 
 ten statement of the solicitor of such person that he has 
 reason to believe that no appointment has been made.'"* 
 
 Deeds Executed by Attorney. — Where a deed is 
 executed bv attorney, the power of attorney must be 
 abstracted and produced,^" and if this was executed before 
 
 ' Evidence Act, 1845, sect. 3. 
 ■■^ Documentary Evidence Act, 18S2, sect. 2. 
 '■'■ Interpretation Act, 1889, sect. 9. 
 
 ■• Taylor on Evidence, 9th Ed. 1006; and see Doc v. Biydgcs (1843) 
 7 Sc. N.R. 333. 
 
 •'• Dart, V. & P. 7th Ed. 346. 
 
 « Sug. 415 ; Mitchell v. Holmes 8 Ex. 119. 
 
 ' See Court of Probate Act, 1857, sect. 69. 
 
 " See Bankruptcy Act, 1914, sects. 143 and 144. 
 
 « Sug. 416; Re Cull. 20 Eq. 561. 
 
 '" Danby v. Coutts (1885) 29 Ch. D. 500 ; Re Airey (1897) 1 Ch. 164.
 
 rKooi-' AND i.w LsrR.ATicjN uF tu ll:. 255 
 
 1883, evidence must be given that the power had not 
 been revoked by the donor or by his death, insanity, or 
 bankruptcy, before it was acted upon.' A power of 
 attorney executed since 1882, and either given for valu- 
 able consideration and expressed to be irrevocable, or, 
 although not given for valuable consideration, vet ex- 
 pressed to be irrevocable for a fixed time, not exceeding 
 one year, is, in favour of a purchaser, not revocable bv 
 death, insanit\' or bankruj3tc\-." 
 
 Awards. — An inclosure award is proved b\ an office 
 copy or extract." An enfranchisement award, under the 
 Copyhold Acts. 1841 to 1887, is proved by a copv under 
 the seal of the Copyhold Commissioners or Land Com- 
 missioners;* and, under the Copyhold Act 1894, by a 
 copy under the seal of the Board of Agriculture.* 
 
 Bankruptcv. — An adjudication in bankruptc\- is 
 proved by an office copy of the order, or bv a copy of 
 the London Gazette in which it is published, and annul- 
 ment is proved in the same way.*^ 
 
 Birth. — Birth is proved by a certificate of birth under 
 the seal of the General Register Office.' or by a certificate 
 of baptism.* 
 
 Covenants. — Performance of covenants, in the case 
 of leaseholds, is sufficient!}- proved b}- producti(^n (jf the 
 receipt for the last payment due for rent f except where 
 the lease is at a peppercorn rent,'" or where the coxenants 
 are shown to have been broken." 
 
 CiisTOM. — The custom of copyholds seems suHicienth- 
 proved by the certificate of the steward of the manor. 
 
 ' Smart v. Saiulers (1848) 5 C.B. 895. - 
 
 - Conveyancing Act, 1882, sects. 8, . 9 : and see Con\evancing Act, 
 1881, sect. '48 ; and see Tiiii<ley v. Mutter (1917) 2 Ch. 144.' 
 
 •■' Sug. 414 ; Dart, V. & P. 7th Ed. 346; Inclosure Act, 1845, sect. 14r.. 
 
 * Copyhold Act, 1852, sect. 49 ; S. L. Act, 1882, sect. 48. 
 
 ■■ Board of Agric. .^ct, 1889, sect. 7 ; Copyhold Act, 1894. sect. 10. 
 
 '■' Bankruptcy .\ct, 1914, sect. 137 (2). 
 
 ■ 6 and 7 Will. IV., c. 80, sect. 38 ; 37 and 38 Vict. c. 88. sect. 38. 
 
 " See Dart, V cl I'.. 7th Ed. 386. 
 
 •' Conveyancing Act. 1881, Sect. 3 : Re Hiii'^ins mut Pcrchuil (1888) 
 57 L.J. Ch. 807. 
 
 '" Re Moody and Yates (1885) 30 Ch. D. 344. 
 
 " Re lii§,heit and Bird (1903) 1 Ch. 287.
 
 -56 VENDORS AND PURCHASERS, 
 
 Death. — Death is proved by a certificate of death 
 under the seal of the General Register Office/ or by a 
 certificate of burial, or by probate of the will of the de- 
 ceased, or letters of administration to his estate." Evi- 
 dence of identity is not usually required, unless the name 
 is a common one. 
 
 Disclaimer. — Disclaimer is generallv proved bv deed 
 of disclaimer, but an informal note in writing is suf- 
 ficient, except in the case of a married woman. ^ 
 
 Enrolment. — Disentailing assurances and other deeds 
 enrolled in Chancery are proved by certificates of enrol- 
 ment, signed by the proper officer, and such certificates 
 are sufficient prima facie evidence of the enrolment. 
 Office copies of enrolments, stamped with the seal of the 
 Enrolment Office, are, by a number of statutes, made 
 as good evidence as the original documents.* 
 
 Estate Duty. — Payment of estate duty under the 
 Inland Revenue Act, 1889, is proved in the same way 
 as the payment of succession duty.^ Payment under the 
 Finance Act, 1894, is proved b)' certificate of discharge 
 of the Commissioners of Inland Revenue,*^ or by the re- 
 ceipt of the Inland Revenue Office. 
 
 Identity of Property. — The identity of the parcels, 
 if not shown by a comparison of the plans and descrip- 
 tions in the deeds with the Ordnance map, or tithe map, 
 mav be proved by statutorv declarations of old inhabi- 
 tants,' and if the identity depends on occupation or 
 seisin, it mav be proved by production of leases or 
 tenants' agreements, or by a comparison of present and 
 past assessments to poor rate and land tax.^ 
 
 Intestacy. — -The production of letters of administra- 
 tion to a deceased person's estate is generally sufficient 
 
 ' 6 & 7 Win. IV. c. 86. sect. 38 ; 37 & 38 Vict. c. 88. sect. 38. 
 
 ^ Sug. 415. 418 ; Dart. V. & P., 7th ed. 386. 
 
 « ReBirchall, 40 Ch. D. 436. 
 
 * See Mortmain and Charitable Uses Act, 1888, sect. 4 (9) ; Fines and 
 Recoveries Act, 1833, sect. 41 ; R.S.C. Ord. 61, rr. 7, 9 ; and see Williams 
 V. Uoycl (1840) 1 Man. & G. 671. 684. 
 
 •' See post, p. 258. 
 
 ^ Finance Act. 1894, sect. 11. 
 
 ^ See Sug. 417. 
 
 " 3 Prest. 33.
 
 PR«^>OF AND INVESTIGATION OF TITLt. 257 
 
 proof of his intestacy, but search should be made to see 
 that no will has been proved.' 
 
 L.\ND Tax. — Redemption of land tax is proved bv the 
 certificate of the Commissioners, with endorsed receipt, 
 or an official extract from the register." 
 
 Le.\ses. — The lease under which the prop>erty is held 
 is proved by production of the original.* Leases to 
 which the property is subject, are sufficiently proved by 
 production of the counterpart.* 
 
 Legacies. — The discharge of a legacy is proved bv a 
 release or receipt signed by the legatee. 
 
 Llnacv. — Orders in lunacy are proved by office 
 copies.* 
 
 Makrl\ge. — Marriage is proved by a ceniticate of 
 marriage under the seal of the General Register Office.* 
 or by a cenified extract from the parish register." Evi- 
 dence of identity- of the panies is not usually required. 
 
 Orders an"d Proceedings of Court. — Orders and 
 proceedings of Coun are proved by the originals or office 
 copies.* Sale by approbation of the judge is proved by 
 an office copy of the certificate of the result of the sale.' 
 
 Portions. — Discharge of f)ortions is proved by a re- 
 lease, accompanied by evidenre rhrit rh^^ releasor^ if^ 
 the portionists and are of age. 
 
 "^ --ESSORY Title. — Where me iiue dejjends on the 
 •n of the Statute of Limitations," e\-idence of the 
 circumstances under which the jx>ssession commenced is 
 essential : and as the 12 years' bar only applies against 
 a person entitled in pK)S5ession. and also sui juris when 
 time began to run, evidence on this point is necessar\- 
 
 ■ E'art. V. & P.. 7th ed. 375. 
 ' E>arT. V. & P.. 7ih ed. 393. 
 See FrmJ v Buckl^F '1S70» 5 Q.B. 213. 
 
 • See MagdaUn Hasp. v. Knotts (1879» 4 App. Cas. 324 
 
 ' Lunacy Re^nlatioa Act. 1S53. sect 100 : Lanacv Act. 1890. sect. 144. 
 « 6 i 7 WnL W . c. 86. sect 38. 
 ' Dart. V. 4 P., 7th ed. iS6 
 
 • 5ee Dart. V. ft P. 7th ed. 354. 
 Sag. 116 
 
 - See anti. p 247. 
 
 17
 
 258 VENDORS AND PIRCHASERS. 
 
 as well as evidence of no acknowledgment having- been 
 given to the person barred/ 
 
 Recited Facts. — Recited facts and matters in deeds, 
 instruments, Acts of Parliament, or statutory declara- 
 tions 20 vears old at the date of the contract, are suf- 
 ficiently evidenced by the recital.^ 
 
 Registration. — Registration of a document of title in 
 Middlesex or Yorkshire is proved by the endorsed cer- 
 tificate of registration.^ 
 
 Rent. — Payment of rent is proved by production of 
 the last receipt.* Evidence that the person giving the 
 receipt is entitled to the reversion cannot in general be 
 required.* 
 
 Seisin. — Seisin may be proved by showing acts of 
 ownership done with respect to the land, such as the 
 grant of a lease under which possession has been taken 
 bv the lessee and rent paid,* but mere possession, al- 
 though sufficient to give prima facie title in an action 
 of ejectment, raises no presumption of seisin as between 
 vendor and purchaser. '^ 
 
 Succession Duty. — Payment of succession duty is 
 proved bv the receipt of the Inland Revenue Office or 
 certificate of payment.* 
 
 Wills. — Wills are verified by production of the pro- 
 bate or official copy ;^ but, if neither be in the vendor's 
 possession, the register at Somerset House may be 
 
 1 See Dart. V. & P., 7th ed. 471 ; Re Alison (1879) 11 Ch. D. 295 : 
 Young V. Harris, 65 L.T. 45. 
 
 2 V. & P. Act, 1874, sect. 2 ; and see (jnfc p. 246. 
 
 •' Sug. 415 ; York Reg. Act, 1884, sect. 9 ; Land Reg. (Middlesex 
 Deeds) Act, 1891, sched. r. 7. 
 
 ■• Conveyancing Act, 1881, sect. 3. 
 
 * See Pcgler v. White (1864) 33 Beav. 403. 
 
 ^ Welcome V. Upton (1840) 6 M. & W. 536; Clarkson v. Woodhouse 
 (1782) 5 T.R. 412; cf. Foljambe v. Smith's Tadcnstcr Brezcerv Coy. 
 (1904) 73 L.J. Ch. 722. 
 
 ' Graham v. Pen/old (1838) 8 C. & P. 536 ; Hiern v. Mill (1806) 13 
 Ves. 114 ; and see ante, p. 247. 
 
 " Succession Duty Act, 1853, sect. 52; Finance .\ct. 1894, sect. 13; 
 Howe V. Lichfield (1867) 2 Ch. 155; Re Kidd and Gibbon's Contract 
 (1893) 1 Ch. 695. 
 
 3 Dart, V. & P. 7th ed. 358.
 
 PROOF AND INVESTIGATION Ol- TITLE. 259 
 
 inspected. An unproved will of a person dying before 
 1898, if relating only to freeholds or copyholds, seems to 
 be sufficiently verified by production of the original copy 
 attested, together with letters of administrntion to the 
 testator's estate, but search should be made to see that 
 no other will has been proved. In case of death since 
 the 1st January. 1898, production of the probnte should 
 be required.' 
 
 SlX'TION 4. I\Vi:STIG.\TIC)N OF AND RkQUISITIONS ON 
 
 Title. 
 
 Generally. — The extent of the investigations which 
 may be made of the vendor's title by a purchaser de- 
 pends, in most cases, upon the stipulations contained in 
 the contract for sale. The nature of the title which 
 a purchaser may require, and the evidence upon which he 
 may insist, have already been discussed.^ When the 
 aljstract of title has been provided, and the evidence 
 wiiich the purchaser may require has been produced, the 
 investigation of the title comprises : (a) a comparison 
 of the abstract with the title deeds and other evidence 
 of title; (6) information sought for and obtained from the 
 vendor b}- the delivery of requisitions and observations 
 on title; and (c) information sought for and obtained 
 from various public registers and records by means of 
 searches.^ 
 
 EXAMIN.ATION OF DOCUMENTS OF TiTLE. — The moSt 
 
 scrupulous care is recjuired in the examination and com- 
 parison of the abstract with the documents of title. It 
 is necessarv to ascertain that what has been abstracted 
 is correctly and sufficiently abstracted; that what is 
 omitted is clearh- immaterial to the title; that the docu- 
 ments are perfect as regards execution, attestation, en- 
 dorsed receipts, registration, acknowledgment, enrol- 
 ment, stamps, etc. ; that there are not any endorsed 
 notices or other circumstances attending the mode of 
 execution, attestation, etc.. calculated to excite sus- 
 picion.* If an important point is overlooked, the 
 
 ' See I^nd Transfer Act. 1897. sect. 1. 
 
 - See initc. pp. 244-247. 
 
 ^ See f>ost. pp. 262-266. 
 
 * See Kennedy v. Green (1834) 3 My. & K. 699 : Greensladc v. Dure 
 (1855) 20 Beav. 284 ; but see Conveyancing Act, 1881, sect. 54.
 
 2GU VENDORS AND PURCHASERS. 
 
 purchaser, after the conveyance is executed and the pur- 
 chase-money is paid, will have no remedy against the 
 vendor unless is falls within the covenants for title.' 
 
 Requisitions and Inquiries. — Subject to the pro- 
 visions of the contract for sale, a purchaser is entitled to 
 deliver to the vendor written requisitions and objec- 
 tions with reference to the title or defects therein which 
 may appear upon the abstract and be disclosed bv an 
 examination of the documents of title, and the vendor is 
 bound to comply therewith. Such requisitions and 
 objections are usually to the effect that the abstracted 
 documents do- not show the title which the purchaser is 
 entitled to, in which case a further abstract ma}' be re- 
 quired ;" that particular documents have not the effect re- 
 quired in order to make out the vendor's title; that there 
 are incumbrances on the property remaining unsatisfied; 
 that the identity of the property is in doubt ; that the 
 documents do not comply with necessary formalities, 
 such as stamping, execution, or other matters; and that 
 additional evidence to that already provided is required 
 as to matters of pedigree, payments, or otherwise. 
 
 In addition to these objections to title, the purchaser 
 generally addresses inquiries to the vendor which are 
 intended to protect himself from the possible omission 
 by the vendor to disclose matters affecting the title, such 
 as improvement or other charges f to obtain additional 
 information as to the property, e.g., as to insurance, 
 easements, tenant rights, party walls, the making 
 up of roads, notices served by local authorities, outgo- 
 ings, and to arrange for completion. 
 
 Objections clearlv frivolous, made and persisted in, 
 will indispose, even if they do not prevent,* the Court 
 from enforcing a contract at the suit of the purchaser. 
 It is sometimes desirable to make requisitions w^hich, 
 strictly are not entitled to be made, for points which 
 cannot be insisted upon, but which are of importance, 
 
 ' See M'Culloch v. Gregory (1855) 1 K. & J. 286. 
 
 '■^ See Morlcy v. Cook (1842) 2 Hare 106. Ill ; Blackburn v. Smith 
 (1848) 2 Exch. 783 ; Want v. Sfallibrass (1873) 8 Exch. 175 ; Gray v. 
 Foivler (1873) 8 Exch. 249 ; Steer v. Crowley (1863) 14 C.B. N.S. 33'7. 
 
 * Re Ford and Hill (1879) 10 Ch. D. 365; Taylor v. London. &c.. 
 Bankin!< Coy. (1901) 2 Ch. 231. 
 
 * Sug. 352.
 
 PROOF AND INVESTIGATION OF TITLE. '^Gl 
 
 may, if urged, be conceded. Hut where the condition 
 ennbUng the vendor to rescind does not expressly pro- 
 vide that notice shall be given to the purchaser of in- 
 tended rescission if the requisition is persisted in. it is 
 necess<'U'y to exercise great i-aution in framing recjuisi- 
 lions.' On the otluT hand, if a purchaser knowingly 
 holds back important objei-lions or recjuisitions. the ques- 
 tion ma\- arise whether he has not imi)liedly waived 
 them.'' 
 
 Waiver of Objections to Title. — Where a pur- 
 chaser, having taken several objections, expresses him- 
 self w illing to accept the title upon a specified objection 
 being removed, this waiver of the other objections is 
 merelv conditional upon the removal of the specified 
 objection.'' Acceptance of the title, as abstracted, is no 
 waiver of the purchaser's right to have the abstract veri- 
 fied,' nor will the Court imply a waiv^er of any objection 
 not clearly raised by the contents of the abstract f nor 
 does a purchaser, by waiving his right to an abstract, 
 necessarih- waive objections to the title otherw ise known 
 to him ;" nor does acceptance of the title bind the pur- 
 chaser, where the vendor conceals some material fact.' 
 Waiver, however, need not be expressed ; it may be im- 
 plied from words or conduct, as where the purchaser 
 fails to send in re(|uisitions or objections within the time 
 fixed bv the contract for that purpose ;" or where, though 
 not satisfied with the vendor's replies, he nevertheless 
 does not insist upon satisfactorv answers;^ or where he 
 
 ' See Re Dailies and Wood (1888) 29 Ch. D. 626; Re Glcnton to 
 Hadcn (1886) 53 L T 434 ; Re Starr-Rou^kett and Sibiin (1889) 42 Ch. 
 D. 375. 
 
 - See Ma}iennis v. Fallon (1828) Sug. 347 ; Stanton v. Tattersall 
 (1853) 1 S. & G. 529; Alexander v. Crosby (1844) 1 J. & L. 666; and 
 see next paragrapli. 
 
 " Lesturi^eon v. Martin (1834) 3 My. & K. 255. 
 
 * Sotithhy V. Hiitt (1837) 2 M. & C. 217. 
 
 •'■ Blacklow V. Laws (1842) 2 Hare 47 ; Hentlev v Craven (1853) 17 
 Beav. 204. 
 
 « Sidebofhain v. Barrinf^ton (1839) 3 Jur. 947. 
 
 ■ Boiisfield V. Hodges (1863) 33 I^eav. 90; Re Haedicke and I.ipski 
 (1901) 2 Ch. 666. 
 
 " See ante, p. 223. 
 
 '•' BiirroiiLilis v. Oakley (1819) 3 Swan. 159.
 
 262 VENDORS AND PURCHASERS, 
 
 enters into possession, or pays the whole or part of the 
 purchase-money, or does other acts which a purchaser is 
 not bound to do or entitled to do until a good title has 
 been made.^ But where the purchaser enters into pos- 
 session under an express term of the contract enabling 
 him to do so before completion,' or where the vendor 
 consents to his doing so without prejudice to his right to 
 require a good title, or where the purchaser was already 
 in possession at the time of the sale, no waiver of objec- 
 tions to title is implied, unless the purchaser retains the 
 abstract for a long time without raising objections to the 
 tide.' 
 
 Section 5 — Searches and Inquiries. 
 
 Necessity for Searches. — Immediately, or as near as 
 possible before completion, searches should be made in 
 registers or other public records for such incumbrances 
 affecting the title as are required by law to be registered. 
 Unless the purchaser expressly authorises his solicitor 
 not to search, the latter is liable for any loss occasioned 
 by his omission to make such searches as are proper 
 in the circumstances of the case.* In practice, searches 
 are confined to the period since the last preceding sale 
 or legal mortgage in fee.^ 
 
 Usual Searches. — The searches usually made are for 
 (a) writs and orders affecting the land; (b) Us pendens: 
 (c) annuities; (d) bankruptcies; (e) deeds of arrange- 
 ment ; (/) land charges ; (g) registration under the Land 
 Transfer Acts, 1875 and 1897 : (h) registration under the 
 Middlesex and Yorkshire registries; (/) entries on Court 
 rolls affecting copyhold lands; (/) disentailing assur- 
 ances ; and {k) acknowledgments of deed by married 
 women. 
 
 Writs and Orders. — Under the Land Charges 
 Registration and Searches Act, 1888, Sections 5 and 6, as 
 
 ' Fludyer v. Cocker (1805) 12 Ves. 25 ; Binks v. Rokehy (1S18) 2 
 Swan. 222; Knatchbull v. Gnieber (1815) 1 Madd. 153. 
 
 2 Bolton V. London School Board (1878) 7 Ch. D. 766. 
 
 •^ Stevens v. Guppy (1828) 3 Russ. 171 ; Vancouver \ . Bliss (1805) 
 11 Ves. 458. 
 
 * Sug. 547 ; Williams. V. &. P. 533 ; Cooper v. Stephenson (1852) 21- 
 L.J. Q.B. 292. 
 
 ■" See Dart. V. & P. 1218.
 
 PROOF AND INVESTIGATION OF TITLK. 263 
 
 amended b\- ihe Land Cliarijcs Ait, 1!M)(). S •ction -'5, eviTx 
 w lit or order atfertinj^ land issued or niaoe hv anv C'ourt 
 for the purpose of enforcin<j^ a jud^m 'Ut. statute or re- 
 cog"nizance, w hetlier obtained on behalf of the Crown or 
 otherwise, and any order appoin'in^ a receiver or seques- 
 trator of land, and every delivery in execution or otiier 
 proceedino- thereunder, is void as ap^ainst a purciiaser 
 ii)\- \alue of the land unless the writ or ortler is re<^istered 
 in pursuance of the Act, and re-registered every live 
 Aears. Search should a-cordingly be made for such 
 writs and orders for five \ears before completion, in the 
 names of the vendor and all other persons mentioned in 
 the abstract as his predecessors in title (or as ha\'ing an\- 
 such interest as would be subject to process of execu- 
 tion), back to and includino- the last purchase for value. 
 This search niav be made at the Land l\emisir\- in 
 Lini'oln's Inn Fields, London. 
 
 Lis Pendkns. — In the absence of express notice, a 
 purchaser is not affected by a lis pendens, i.e., a pending 
 action respecting the property, unless it is registered and 
 re-registered every live years.' Search should be made 
 accordingly in the lis pendens register at the Land Regis- 
 try for the last live years, and it must be made against 
 trustees" and mortgagees as well as against beneficial 
 owners. If the suit turns out to be founded on a claim 
 which is not sustainable, or if it does not affect the title 
 to the land, the purchaser cannot refuse to complete.' 
 
 An.vlitii-:s.— Annuities or rent charges granted on or 
 after April 2()th, IS")."), otherwise th.an b\- will or mar- 
 riage settlement, for a life or li\'es, or for a term of years 
 or greater estate determinaljle On a life or lives, do not 
 aflect tile lands charged therewith as against purchasers, 
 mortgagees, or cicditors. unless the\- are registered 
 .against the name of the |)erson whose land is to be 
 
 ' Jiid^jments .\ct, ISJ'J. sects. 4, 7, see licllnnty \ Siihiiic (1^57) 1 
 De G. & J 566; Htii-finivc v Har^ntvc (1S57) _'3 P.ea\ 484 ; Buxtcr v. 
 Middleton (1898) 1 Cli. 313 : Hishofy of Winchester v Paitic (1805) 11 
 Ves. 194. 
 
 -' .\nd see S. L. Act. 1884, sect 7 
 
 •' See Bull v. Hutchciis (1863) 3J Heav. 615 ; Wi-iiuin v. Buckley 
 (1S94) 3 Ch. 4S3.
 
 264 VENDORS AND PURCHASERS. 
 
 affected in the Land Registry.' Search should therefore 
 be made against owners of the land during the period of 
 search, i.e., since the last dealing for value.' 
 
 Bankruptcy. — A st^arch of the registers at the Bank- 
 ruptcy Court is necessary in order to ascertain that the 
 property has not vested in the trustee in bankruptcv of 
 the vendor or any predecessc r in title during the pre- 
 vious twelve years, after which period the trustee's title 
 would be barred by the Real Property Limitation Act, 
 1874. It is often advisable to search also in the County 
 Court of the district in which the person searched against 
 resides or carries on business.'' 
 
 Deeds of Arrangement. — It is provided by Sections 
 8 and 9 of the Land Charges Registration and Searches 
 Act, 1888, that deeds of arrangement affecting land shall 
 be registered, othervvise they are void as against a pur- 
 chaser for value of any land comprised therein. Search 
 should be made accordingly against the vendor, and (if 
 he did not acquire the property by purchase for value) 
 his predecessors in title back to and including the last 
 purchaser for value. Since there is no provision for re- 
 registration, the search should be carried back to the date 
 when the person searched against acquired the property 
 or attained the age of twenty-one, or back to the olst 
 December, 1888, whichever period is the shorter. 
 
 Land Charges. — Land charges as defined by the Land 
 Charges Registration and Searches Act. 1888, and which 
 have been executed after the 1st January, 1889, are void 
 as against a purchaser of the land charged therewith, or 
 of anv interest in such land, unless and until such land 
 charges have been registered in the register of land 
 charges in the Land Registry Ofifice ; and land charges 
 existing on the above date are similarly void unless they 
 are registered within one year from their first assign- 
 ment by act inter vivos occurring after that date. Search 
 should be made accordingly at the Land Registrv- . The 
 charges requiring registration are improvement charges 
 
 ' Judgments Act, 1855, sects. 12, 14; see Greaves v. Tofield (1880) 
 14 Ch. D. 563. 
 
 '^ See Dart, V. & P. 1226. 
 
 =* See. however, Cohen v. Mitchell (1890) 25 Q.B.D. 202 ; Bankruptcy 
 Act, 1914, sect. 47.
 
 PROOF AND INVESTIGATION OF TITLK. 2(io 
 
 created at the instance of tlu^ owner.' lliev tlo not in- 
 clude charges created under the PubUc Ileahh An, 
 1875, or other charges created witliout reference to the 
 wish of the owner.* 
 
 RkGISTUATION INDKR I, AND TuANSFKR AcTS. The 
 
 index map and list of pending apj^licalions kept at tlie 
 Land Registry should be searched on every sale of un- 
 registered land situated in an area where registration of 
 title is compulsory, in order to ascertain that the title has 
 not been nor is about to be registered, inasmuch as the 
 effect of registration with an absolute title is to enable 
 the tir.st registered proprietor by a registered tran.sfer for 
 value to extinguish the previous title/ 
 
 Mir)i)i.i:si;x and N'ouksiiiki-: Ri:(;isti;v. — \V^here the 
 land sold is situated in the C'ountx- of Middlesex, or the 
 County of York, or the Jk^dford l>evel, a .search .should 
 be made in the registries established for the.se areas. ^ 
 
 CoLRT Rolls. — On a sale of copyhold or customary 
 freehold land, search should be made in the Court rolls 
 of the manor of which the land forms part in order to 
 ascertain that all incumbrances and matters affecting 
 the land are disclo.sed by the abstract.' 
 
 Disentailing Assurances. — Where a title depends 
 upon the fact of an estate tail not having been barred, 
 search should be made in the Enrolment Department 
 of the Central Office for disentailing assurances." 
 
 AcKXOWLKDc.MKXTs OF Marrii:i) W'omi-.n. — \\'here it 
 is suspected that a married woman entitled to the land 
 sold before 1883 has made a conveyance of it which is 
 not disclosed by the abstract, a search may be made at 
 
 1 See Improvement of Land .Act. ISM: Limited Owners' Residences 
 Act, 1870; Limited Owners' Residences .\ct, 1870. .\mendment Act. 1871 ; 
 Limited Owners' Reservoirs and Water Supply I'urtlier I'acilities .\ct. 
 1877; Settled Land Act. 1882. sect. 30. 
 
 ^ R. V. Vice-Rc^istnir of Office of l.<iiul Rei^istiy (1880) J4 O.M D. 
 178. 
 
 ■' Land Transfer Act. 1875. sect. 30. 
 
 ■* See Re Weir (1SS8) 58 L.T. 792; Hnnim-s v. Hol/ey (1887) 35 Ch. 
 D. 123. 
 
 '• See Hopkiiison v. Cluniiherlirin (190S) 1 Ch. 853. 
 
 " Fines and Recoveries .\ct. (1833). sect. 13 ; R.S.C. Ord. f>] . r. 9.
 
 266 VENDORS AND PURCHASERS. 
 
 the Central Office for a certificate of acknowledgment 
 of the deed of conveyance. 
 
 Official Searches. — Official searches may be requisi- 
 tioned to be made at the office of the Land Registry for 
 writs and orders affecting land, lis pendens, life annui- 
 ties, deeds of arrangement, and land charges; and in the 
 Central Office for disentailing assurances, and certifi- 
 cates of acknowledgments of deeds by married women. 
 The official result of the search is, according to its tenor, 
 conclusive, affirmatively or negatively as the case may 
 be, in favour of a purchaser as against persons interested 
 under or in respect of the matters or documents regis- 
 tered, and also protects solicitors and trustees, executors 
 and other persons in a fiduciary position, whether acting 
 through solicitors or not, against any loss that may arise 
 from any error in the certificate. Official searches can 
 also be obtained in the Middlesex and Yorkshire Regis- 
 tries, but while the official certificate protects solicitors, 
 trustees and others in a fiduciarv position, it is not con- 
 clusive in favour of purchasers. An official search in 
 bankruptcy cannot be obtained. 
 
 Inquiries as to Tenancy. — Where the land sold is in 
 the occupation of a tenant, the purchaser should make 
 inquiries of the tenant, as to the terms of his tenancy,' 
 and as to the person to whom he pays his rent.' 
 
 Section 6 — Registration of Title. 
 
 Registration. — Under the Land Transfer Act, 1875. 
 a system of voluntary registration of title was set up 
 throughout England. The Land Transfer Act, 1897, 
 provided"' that Orders in Council might, subject lo cer- 
 tain conditions, be made declaring that registration of 
 title should, on and after a day specified in the Order, 
 be compulsory on sale in any county or part of a county 
 mentioned in the Order. 
 
 Compulsory Registration. — Registration is now 
 compulsory in the County of London on sale, both with 
 
 ' Fines and Recoveries Act, 1833, sect. 84 ; Conveyancing Act. 1882. 
 sect. 7 (7). 
 
 •■' See Hiiitf V. Lucb (1901) 1 Ch. 45; (1902) 1 Cli. 428; Re Derby 
 and Fergussotis Contnict (1912) 1 Ch. 479; George v. Thomas (1904) 
 52 W.R. 416. ■'■ Section 20.
 
 I'KOOI' AND I.W I.M K, AlK ).\ ()!• I II 1.1 . 'J(), 
 
 regard to freeholds and to leaseliolds having foriy years 
 to run or two lives to fall in, and to giants of leases and 
 underleases for similar periods. In other parts of the 
 country registration is still voluntary, but may be made 
 compulsory by Order in Council in any county or pari 
 of a county, the county council of which passes, at :i 
 meeting at which iwothirds of the whole number of 
 members are present, a resolution declaring its desire thai 
 registration should be made compulsory in the county 
 or part of the count}'. Certain kinds of property, how- 
 e\(M", are t-xemj^ted from compulsory registration, I'/r;., 
 — (a) Incorporeal hereditaments;' (6) mines or minerals 
 apart from the surface; (c) leases having less than forty 
 years to run or two lives to fall in ; {d) undi\'ided shares 
 in land; (e) freeholds intermixed witli, and indistinguish- 
 able from. Lands of other tenure; (/) corporeal heredita- 
 ments parcel of a manor and included in the sale of a 
 manor as such ; (g) leaseholds created for mortgage 
 purposes; and (h) leaseholds containing an absolute pro- 
 hibition against alienation.^ 
 
 |{i'Fi:cT OF O.MissioN TO R KGISTKR. — If, in a district 
 where registration is compulsory, the owner neglects to 
 register, the .Act provides that on a conveyance on sale 
 the purchaser shall not acquire the legal estate in free- 
 holds." Similarly, in the case of leaseholds, the legal 
 estate will not pass to the purchaser, and the assignment 
 or lease will operate onl\- as an agreement for lease or 
 sale, except in cases where, since January Isi, 1904, the 
 assignment or lease is made to trustees under the Settled 
 Land Acts, and the tenant for life is registered wiihin 
 one month. 
 
 A'oLUN'TAin Ri;(;isTKATi()N\ — \'oluntary registration 
 mav be made in the case ot (u) freehold land; (b) lease- 
 holds for a life or lives, or determinable on a life or lives, 
 or for a term of years of which more than twenty-one are 
 unexpired, except leaseholds created for mortgage pur- 
 poses, and leaseholds containing an absolute prohibition 
 against alienation. Where, in this last case, tlie pro- 
 hibition is not absolute, but only against alienation 
 
 ' I.e., reversions, remainders, annuities, &c. 
 
 - L.T.A.. 1875. sect. 11 : L.T..\ , 1S97. sect. 24. 
 
 ■' L.T.A.. 1S97. sect. 20.
 
 268 VENDORS AXD PURCHASERS, 
 
 without licence, the lease may be registered, but the 
 registry must contain an entr}^ of the limited prohibition 
 I'ndivided shares may be registered, but are exempted 
 from compulsory registration. 
 
 Freehold Land. — Application for registration of free- 
 holds may be made by {a) any person who has contracted 
 to buy for his own benefit an estate in fee simple in 
 land, whether subject to incumbrances or not, provided 
 the vendor consents to the application ; (6) any person en- 
 titled for his own benefit at law or in equity to an estate 
 in fee simple in land, whether subjecf or not to incum- 
 brances; (c) an}- person capable of disposing for his own 
 benefit by way of sale of an estate in fee simple in land, 
 whether subject or not to incumbrances;^ (d) a tenant 
 for life of settled land, who may register in his own 
 name, or, where there are trustees with powers of sale, 
 in the names of those trustees, or, where there is an 
 over-riding power of appointment of the fee simple, in 
 the names of the persons in whom that power is vested.' 
 
 Titles which may be Registered. — The owner may 
 register (a) an absolute title; or {h) a possessory title; or 
 (c) a qualified title. An absolute title will vest in the 
 owner an estate in fee simple in the land, subject (1) to 
 any incumbrances entered on the register ; (2) to incidents 
 of tenure, easements, and other liabilities which are not 
 treated as incumbrances on the register, unless the con- 
 trary is expressed ; (3) where the registered proprietor is 
 a trustee, or other person not entitled for his own benelit, 
 to any unregistered estates, rights, or equities enforceable 
 against him ; but free from all other estates and interests, 
 including rights of the Crown .^ Registration of a 
 possessory title is no evidence of title, and does not affect 
 or prejudice the enforcement of any estate, right, or in- 
 terest adverse to, or in derogation of, the title of the 
 person registering, and subsisting or capable of arising 
 at the time of registration.' A qualified title arises 
 where an absolute title is required, but it appears that 
 a title can only be established for a limited period, or 
 
 ' T..T.A., 1875, sect. 5. 
 
 ■'' L.T.A., 1897, sect. 6. 
 
 ■' L.T.A.. 1875, sect. 7. 
 
 ■* Ibid , sect. 8.
 
 I'RooF AND i.w i:sii(; \i ION ()!• TiTi.i:. :j(il* 
 
 subject to certain reservations. The rej^ister will then 
 except any estate, right or interest arising before ,i 
 certain date or covered by any reservation, and the per- 
 son registering will then have an absolute title, except 
 that the registration will not affect or prejudice anv ex- 
 cepted estate, right or interest.' 
 
 1:>easl:holij Land. — A separate register is kept i)f 
 leasehold land, and application for registration may be 
 made by any person who has contracted to bii\' for his 
 o\\ n benefit any leasehold land of the periods stated, and 
 subject to the exceptions stated," whether subject or not 
 to incumbrances, provided that the vendor consents to 
 the application; and any person entitled for his own 
 benefit, at law or in equity, to such leasehold land, 
 whether subject or not to incumbrances ; and any per- 
 son capable of disposing for his own benefit by way of 
 sale of such leasehold land, whether subject or not to 
 incumbrances. Further, if the person registering holds 
 under a lease which is derived immediately from free- 
 hold land and is able to submit for examination the title 
 of the lessor, a declaration of the title of the lessor to 
 grant the lease may be added to the registration." 
 
 The owner may register (a) an absolute title which 
 will vest in him the whole leasehold estate in the land, 
 subject to the three limitations mentioned in the case of 
 freeholds,* and all express and implied covenants, ob- 
 ligations, and liabilities incident to such leasehold 
 estate ; except that where there is no declaration added as 
 to the title to the lessor to grant the lease, the registraion 
 shall not affect or prejudice the enforcement of any estate, 
 right, or interest affecting the title of the lessor to grant 
 the lease ; (b) a qualified title, w'here it appears that the 
 lessors only had a qualified title to grant the lea.se; 
 (r) a possessory title.* 
 
 The Certificate. — On registration the owner mav re- 
 quire a land certificate prepared under the T.and Registrv 
 seal showing the title, or, in the case of lea.seholds, an 
 
 1 L.T.A., 1875. sect. 9. 
 
 ■^ See ante p. 267. 
 
 ■' L.T.A.. 1875. sect. 11. 
 
 ^ See ante p. 208. 
 
 ■' L.T.A.. 1875. sects. 11, 15
 
 270 VKNDORS AND PIRCHASKRS. 
 
 office cop3^ of the registered lease. This certificate is 
 prima facie evidence that the title is as mentioned in the 
 certificate. It may be delivered to the owner of the land 
 or kept in the registry-. ^ 
 
 Thi-: Register. — The Register consists of three parts — 
 (a) the Property Register, which contains a description 
 of the land; (b) the Proprietorship Register, which 
 states the nature of the title and the name of the regis- 
 tered proprietor, and sets out all cautions, inhibitions, 
 and restrictions ; (c) the Charges Register, which dis- 
 closes all incumbrances. Any mistake in the register 
 which cannot be rectified and which causes loss to any 
 person will entitle him to be indemnified for his loss, 
 provided the mistake was not caused by his own fault.* 
 
 Evidence of Title. — A purchaser of registered land 
 is not entitled to any evidence of title other than (a) in- 
 spection of the register, or of a certified copy of it; 
 (5) a statutory declaration as to the existence of an}' lia- 
 bilities, rights and interests declared by the Acts not to 
 be incumbrances; (c) in the case of an absolute or quali- 
 fied title, evidence of title to incumbrances entered on 
 the register as subsisting at the first registration of title, 
 or evidence of the discharge of such incumbrances; 
 
 (d) in the case of a qualified title, evidence as to any 
 estate, right or interest excepted from the registration; 
 
 (e) in the case of a possessory title, the same evidence of 
 the title subsisting, or capable of arising, at the first 
 registration of title, as the purchaser would be entitled 
 to if the land had not been registered.^ 
 
 Transfers. — Registered land is transferred in certain 
 prescribed forms, and the purchaser's name is entered on 
 the register as the owner.* The effect of the transfer, 
 provided the transfer itself be registered, is as follows. 
 
 (1) Transfers of Freeholds. — (a) Where the title is 
 absolute, a transfer for valuable consideration passes the 
 fee simple, subject to any incumbrances on the register, 
 and any liabilities and rights which are declared by the 
 Act of i89T not to be incumbrances, (b) Where the title 
 
 • Sects. 10, 16, 80. 
 
 - L.T.A., 1897, sects. 7, 21. 
 •^ Sect. 16. 
 
 * L.T.A., 1875, sects. 29-39.
 
 rUOOF AND INVESTlCiATlON OF TITLE. . 271 
 
 is qualifieci. a transfer for valuable consideration has a 
 similar effect, save as to any estate, right or interest 
 excepted on the register ; (c) where the title is possessor)', 
 a transfer for valuable consideration has a similar 
 effect, except that it shall not affect any estate, 
 right, or interest adverse to, or in derogation of, the title 
 of the first registered proprietor which was subsisting, 
 or capable of arising, at the date of his registration. 
 
 (2) Transfers of Leaseholds, — (a) When the title is 
 absolute, a transfer for valuable consideration passes the 
 whole interest of the owner, subject to the limitations 
 mentioned above in the case of freeholds: and all ex- 
 press covenants, obligations, and liabilities incident to 
 such leasehold estate. (6) In the case of a qualified title, 
 a transfer for valuation consideration has a similar 
 effect, (c) In the case of a possessory title, a transfer 
 for valuable consideration has the same effect as in the 
 case of freeholds. 
 
 In the case of a voluntary transfer, "the transferee is 
 also bound by any unregistered estate, rights, interests, 
 or equities to which the transferor was subject.' Where 
 the registered property changes hands on death or 
 bankruptcy the proper person may be entered on the 
 register as proprietor.^ 
 
 Charges and Mortgages. — The registered property, 
 too, may be charged or mortgaged in certain prescribed 
 forms, the chargee being given a certificate of charge.^ 
 The charge or mortgage should be registered, and where 
 this is done the owner inipliediv covenants : (a) to pav 
 the principal sum and interest; (b) in the case of lease- 
 holds, to pay rent and observe the covenants of the lease.* 
 The chargee or mortgagee may enter on the lands or 
 into receipt of the rents and profits, or he mav sell 
 or foreclose.^ Equitable mortgages may be created by 
 deposit of the land certificate, or oiifice copy of a regis- 
 tered lease, or the certificate of charge.* Registered 
 
 ' L.T.A., 1875, sects. 33, 38. 
 2 L.T.A.. 1875, sects 41-43. 
 •'' L.T.A., 1875, sect. 22. 
 * L.T.A., 1875. sects. 23, 24. 
 •'' L.T.A., 1875, sects. 25. 26. 
 fi L.T.A.. 1897. sect. 8 (4).
 
 272 VENDORS AND PURCHASERS. 
 
 charges rank according to the order in which they appear 
 on the register, unless the contrary is stated/ and may 
 be transferred by registered transfers." 
 
 Cautions. — Any person interested may lodge a 
 '* caution," which entitles him to fourteen days' notice 
 of any proposed dealing with the land by the registered 
 proprietor, who may also be prevented from dealing with 
 the land by an " inhibition."^ 
 
 Adverse Possession. — Where land is registered, a 
 title to the land adverse to or in derogation of the title 
 of the registered proprietor cannot be acquired by any 
 length of possession, and the registered proprietor may 
 at anv time make an entry or bring an action to recover 
 possession of the land ; provided that — (a) where a per- 
 son would, but for this provision, have acquired a title 
 by possession, he may apply to the Court for an order 
 for rectification of the register; and (&) where any person 
 who was in possession of the land at the date of its 
 registration had acquired an adverse claim in respect of 
 length of possession, his claim is good as against 
 any person registered as first proprietor with a posses- 
 sory title only.* 
 
 • L.T.A., 1875. sect. 28. 
 ■^ L.T.A., 1897, sect. 9. 
 
 •' L.T.A., 1875, sects. 53-57. 
 
 * L.T.A., 1897, sect. 12.
 
 CHAPTER III, 
 
 EFFECTS OF THE CONTRACT. 
 Section 1 — Rights and Oblkjations of Partiks in 
 
 RESPIXT OF THF PrOPKRTV SoLD. 
 
 OwNKRSHip. — Subject to the contract beinj;" enforce- 
 able in equity, the beneficial ownership in the property 
 sold passes to the purchaser as from the time of enter- 
 ino^ into the contract.' He may then dispose of the land 
 bv sale, mortj^^age, or otherwise, or devise it by will.* 
 The legal estate in the land does not, however, pass 
 under the contract, this remains in the vendor until con- 
 veyance. Subject to payment of the purchase-money, 
 therefore, until conveyance, the vendor holds the pro- 
 perty in trust for the purchaser — subject to the qualifi- 
 cation that during this period he has a personal and 
 substantial interest in the property, a right to protect 
 and an active right to assert that interest, if anything is 
 done in derogation of it.' When the title has been 
 accepted and the purchase-money paid, and as long as 
 he remains in possession, this paramount right of the 
 vendor ceases, and the trusteeship exists without quali- 
 fication,' and the purchaser is personally liable to 
 indemnify the vendor as trustee from the liabilities of 
 the trust property.^ If the contract is rescinded, or 
 specific performance has been refused to one of th^ 
 parties, the vendor is then free from any liability arising 
 out of the relationship of trustee and cestui que trust. ^ 
 
 1 Wall V. Bright (1820) 1 Jac. & W. 494 ; Rose v. Watson (1864) 10 
 H.L. Cas. 672; Plews v. Samuel (1904) 1 Ch. 464. 
 
 ■^ Paine V. Meller (1801) G Ves. 349; Shaw v. Foster (1872) 5 H.L, 
 321. 
 
 •^ Shaw V. Foster, supra : and see Re Carpenter (1854) Kay, 418 ; Re 
 Colling (1886) 32 Ch. D. 333. 
 
 * See Rayner v. Preston (1881) 18 Ch. D. 13 ; Ridoiit v. Fowler 
 (1904) 1 Ch. 658 ; (1904) 2 Ch. 93. 
 
 ■'• Dodson V. Downey (1901) 2 Ch. 620. 
 
 * Plews V. Samuel, supra ; Ridoiit \\ Fowler, supra. 
 
 18
 
 274 VENDORS AND PURCHASERS. 
 
 Possession, — Subject to any stipulation to the con- 
 trary, the vendor is entitled to remain in possession of 
 the property sold until the sale is actually completed by 
 payment of the purchase-money.' Where the contract 
 provides, as upon a sale by auction under the usual 
 conditions," that the balance of the purchase-monev shall 
 be paid on a particular day, and also that possession 
 shall be taken by the purchaser on that day, it is held 
 that such possession is intended as mav safely be taken 
 on the one hand and given on the other, and time is not, 
 as a rule, of the essence of the contract; and as the pur- 
 chaser is not bound to take possession until he can 
 safely do so, that is, until the vendor has shown a good 
 title, so the vendor cannot be compelled to deliver up 
 possession without receiving payment of the whole 
 price. ^ If, however, the contract provides, in such man- 
 ner that time is either expressly or impliedh' of the 
 essence of the contract, that possession shall be given to 
 the purchaser on a certain day, the purchaser is entitled 
 to take possession on that day without paying the pur- 
 chase-money.* 
 
 Maintenance of Property. — Since the purchaser is, 
 in equity, the owner of the property as from the time of 
 the contract, and the vendor, as long as he remains in 
 possession, is a trustee for the purchaser, the ven- 
 dor is bound during that period to take reasonable 
 care to preserve the property in the same condition in 
 which it was at the date of the contract for sale ;^ he must 
 take the same care as a prudent owner would take 
 of his own property."^ Thus, he must cultivate the 
 lands in a husbandlike manner,' keep the property 
 
 1 Lysaght v. Edwards (1876) 2 Ch. D. 499. 
 '•^ See ante, pp. 229, 235. 
 
 ■■* Tilleyv. Thomas (1867)3 Ch. 61 ; Phillips v. Silvester (1872) 8 
 Ch. 172. 
 * Gedye v. Montrose (1858) 26 Beav. 45 ; and see ante., p. 235. 
 
 » Phillips V. Silvester (1872) 8 Ch. 173 ; Egmont v. Smith (1877) 6 
 Ch. D. 469 ; Royal Bristol, &c., Bldg. Soe. v. Bomash (1887) 35 Ch. D. 
 390; Clarke v. Ramiiz (1891) 2 Q.B. 456. 
 
 « Wilson V. Clapham (1819) 1 J. & W. 36; Sherivin v. Shakspear 
 (1854) 5 De G. M. & G. 517. 
 
 '' Foster v. Deacon (1818) 3 Madd. 394.
 
 EFFECTS OF THK a^XTRACT. 275 
 
 in a reasonable state of repair,' and take proper 
 precautions against injury to the lands by tres- 
 passers;" and if he fails in any of these duties, the 
 purchaser will be entitled to an allowance by way of 
 compensation to be deducted from the purchase-monev,'' 
 or in case of his completino- the purchase in ignorance of 
 the vendor's breach of duly he may sue the vendor for 
 damages for the loss sustained thereby.' As a rule, the 
 vendor is bound to exeCute at his own expense such 
 repairs as are necessary in order to preserve the property 
 from deterioration until completion of the contract,* 
 because until then he is entitled to the correlative benefit 
 accruing from the rents and profits.' The vendor is 
 n(n bound, however, to improve the property, and if 
 he expends money on improvements he will have no 
 right to recover any sums so expended from the pur- 
 chaser, unless the purchaser has authorised such expen- 
 diture." From the time when the purchaser might 
 reasonably have taken possession, he will not be entitled 
 to any allowance or compensation tor anv deterioration 
 which the property may have suffered since that time."* 
 Where the property is leasehold, the vendor must per- 
 form all the covenants of the lease up to the time when 
 the purchaser should take possession.' 
 
 IxcinENCi; OF Risk. — Since the equitable estate in the 
 property sold is in the purchaser as from the time of the 
 contract, it follows that the purchaser bears all losses 
 and takes the advantage of all additions or improve- 
 ments which happen or are made to the property after 
 
 ' Binks V. Rofcehv (1818) 2 Swanst. 222 ; Lord v. Sfcpliens (1835) 1 
 Y. & C. 222 : Rova'l Bristol, &c.. Blcf}i. Soc. v. Bomash (1887) 35 Cli. 
 D. 390. 
 
 •^ Clarke v. Ramiiz (1891) 2 Q.B. 486. 
 
 ' Binks V. Rokeby, supra ; Royal Bristol, &€.. Bld;^. Soc. v. Boninslt. 
 supra. 
 
 * Clarke v. Rainuz, supra. 
 
 ■' Biiiks v. Rokchy, supra ; Royal Bristol, &c., Bdg. Soc. \\ Bomash, 
 supra : Shcrwin v. Shakspcar (f854) 5 De G. M. & G. 517. 
 
 « Ly.saght v. Edwards (1876) 2 Ch. D. 499 ; Re Cary Elu•es^ Contract 
 (1906) 2 Ch. 143 ; cf. Re Montas^u (1897) 2 Ch. 8. 
 
 " See post, p. 276. 
 
 " Binks V. Rokeby, supra : Mincliin v. Nance (1841) 4 Heav. 332. 
 
 " Doic.son V. Solomon (1859) 1 Drew & Sra. 1 ; Re Highett and 
 Bird's Contract (1902) 2 Ch. 214.
 
 276 VENDORS AND PURCHASERS. 
 
 that time. Thus, if after the making of the contract, but 
 before its completion, a house or any otlier building 
 erected on the land sold is accidentally destroyed bv 
 lire, the loss falls on the purchaser, and he is none the 
 less obliged to perform his contract without any abate- 
 ment of the price.' The same rule is applicable if the 
 lands sold are destroyed or damaged by flooding, or 
 other natural causes," or there is a loss in value by reason 
 of a fall in prices.'' If the property improves in value 
 owing to the operation of natural causes, or the dropping 
 of lives on the sale of a reversion or remainder/ or the 
 death of the incumbent on the sale of an advowson,* or 
 a general rise in the value of the land,*^ the purchaser 
 takes the benefit. And if the vendor himself makes 
 permanent improvements, as bv building after the con- 
 tract, the purchaser will be entitled to the benefit thereof 
 without further payment.^ Similarly the purchaser is 
 also entitled to all things which belong to the owner as 
 against a tenant for life impeachable for waste, such as 
 timber trees blown or cut down,* or minerals gotten 
 whether by a trespasser or by the vendor otherwise than 
 in working mines or quarries open at the time of sale.^ 
 
 Insurance Money — Wher& the property sold is 
 insured by the vendor, and the property is destroyed by 
 fire or otherwise, the contract for sale does not, in the 
 absence of express stipulation, entitle the purchaser to 
 the insurance money, nor does it entitle him to deduct 
 from the purchase-money the amount received by the 
 
 ' Paine V. Mcller (1801) 6 Ves. 349; Rayner v. Preston (ISSl) 18 
 Ch. D. 1 ; cf. Taylor v. Caldwell (1863) 3 B. & S. 826. 
 
 - Lysaght v. Edwards (1876) 2 Ch. D. 499; and see Taylor v. 
 Caldwell, supra. 
 
 ■' Poole V. SJiergold (1786) 1 Cox 273. 
 
 ■* White V. Nnfts (1702) 1 P. Wms. 61 ; Ex parte Manning (1727) 2 
 P. Wms. 410. 
 
 ^ Fox V. Chester (1829) 3 Bl. N.S. 123 ; Nicholson v. Knapp (1838) 9 
 Sim. 326; Creenslade v. Dare (1853) 17 Beav. 502. 
 
 ^ Paine v. Mcller, supra. 
 
 "' Clare Hall v. Harding (1848) 6 Hare 273 ; Monro \ . Taylor (1850) 
 8 Hare 51. 
 
 " Poole V. Shergold, supra ; Magennis v. Fallon (1829) 2 Moll. 561. 
 
 » Nelson V. Bridges (1839) 2 Beav. 239; Brown v. Dibbs (1878) 25 
 W.R. 776; Lcppington v. Freeman (1891) 40 W.R. 348.
 
 liFFKCTS OF THK CONTUACT. 277 
 
 vendor under the policy;' for tlie policv of insuranre 
 is a collateral contract; and such a policv is not, as a 
 rule, assionable without the consent of the insurer.* 
 The contract of insurance is a contract of indemnitv, 
 and the vendor cannot, therefore, profit b\- it so as to 
 be paid twice over; so that if he receives lioth the 
 insurance money and the purchase-mone\' without 
 deduction, he nuist refund the insurance money to the 
 ofriqe.' Moreover, unless the conHract contains an; 
 express or implied stipulation to that effect, the vendor 
 is not bound to maintain the policv on foot, or to inform 
 the purchaser that it has lapsed/ But on a sale of lease- 
 holds the omission of the vendor to observe a covenant 
 to insure the j^remises is a defect in liis title;" and under 
 a condition that the vendor shall pay outgoings up to 
 the dav fixed for completion, he must, if und(^r a 
 covenant to insure, pay the insurance premiums/ The 
 purchaser is, however, a person " interested in or 
 entitled unto " the property within the Fires Prevention 
 (Metropolis) Act, 1774," and as such he can require the 
 insurance companv to i-xpend the policy moneys in 
 rebuilding or reinstating the premises, provided that, 
 at the tim(^ of his rec|uest, they have not alreadv paid the 
 monews to the vendor/ 
 
 Ri:nts and Profits. — L'ntil the time for completion, 
 in the absence of any agreement to the contrary, the 
 vendor is entitled to possession of the property and re- 
 ceipt of the rents and profits accruing therefrom for 
 his own benefit ;* after that time they belong to the 
 
 ' Poole V. Ad, tins (1864) 12 W.K. 683: Rtjyiicr v. Preston (18811 18 
 Ch D. 1. 
 
 •^ Lviicli V. Diilzcll (1730) 4 Bro. P.C. 431 ; CastcUain v Preston 
 (1883)' 11 Q.B.D. 380: West of England. &c.. Coy. v. Isaacs (1897) 1 
 Q.B. 22C).'Ph(Viiix Assurance Coy. v. Sf>ooner (1905) 2 KB. 753. 
 
 •' Castelhiin \ . Preston, supra. 
 
 * Paine v. Metier (1801) 6 Yes. 349: Doieson v. Solomon (1S59) 1 
 Drew. & Sm 1. 
 
 ■ Palmer v. Cioren (1856) 4 W.R. 688. 
 
 " Douson V. Solomon, supra, cf. Wicman \. Maxwell (1899) 80 
 L T. 681. 
 
 • 14 C;eo. ,i, c. 78. 
 
 ■ I hid., sect, 83 : Sninott v. Boxeden (1912) 2 Ch. 414. 
 
 '■' Garrick v. Camden (1790) 2 Co.\ Eq. Cas. 231 ; Cuddcn v. Tite 
 (1858) 1 Giff. 395: Watts v. Watts (1873) 17 Eq. 217: and see ante, 
 p. lib.
 
 278 VENDORS AND PURCHASERS. 
 
 purchaser/ and the vendor receives them until actual 
 completion as trustee for the purchaser, and must 
 account for them accordingly.' These profits include 
 the ordinary rents and profits accruing' from the use 
 and enjoyment of the property in the circumstances in 
 which it was used and enjo\ed at the date of the con- 
 tract. Thus, the vendor is entitled to gather in and 
 dispose of the crops in due course of husbandr}", 
 and to retain the proceeds for his own benefit/ and may 
 work mines and quarries which were open at the time 
 of sale,' and if the land be let, he is entitled to receive 
 the rents as they become payable,^ and, in the case of 
 the sale of a manor, may take the fines accruing due on 
 admittances.*^ But he is not entitled to take any profit 
 or benefit which forms part of the inheritance, such as 
 timber trees blown or cut down,' or minerals gotten 
 after the contract by a trespasser or by the vendor other- 
 wise than in a proper course of working open mines or 
 quarries,^ for these belong in equity to the purchaser. 
 And between the time for completion and the date of 
 actual completion, if the vendor is in occupation, he ma}' 
 be charged an occupation rent.^ 
 
 Where the purchaser enters into possession before 
 the time fixed for completion, he is, in the absence of 
 any agreement to the contrary, entitled to the rents and 
 
 1 Paine v. Mcller (1801) 6 "Ves. 349 ; Plcvrs v. Samuel (1904) 1 Ch. 
 464 ; Monro v. Taylor (1850) 8 Hare 51. 
 
 ■•^ M'Naiiiara v. Williams (1801) 6 Ves. 143 ; Wilson v. Chtpham 
 (1819) 1 Jac. & VV. 36; Plexvs v. Samuel, supra. 
 
 =' Webster v. Donaldson (1865) 34 Beav. 451. 
 
 ^ Leppington v. Freeman (1891) 40 W.R. 348 ; cf. Nelson v. Bridges 
 (1839) 2 Beav. 239. 
 
 ■• Paine v. Meller, supra; Wall v. Bright (1820) 1 Jac. & W. 494; 
 Shaw V. Foster (1872) 5 H.L. 321 ; Lysaght v. Edwards (1876) 2Ch. D. 
 499; Re Gary Ehves' Contract (1906) 2 Ch. 143; Plews v. Samuel, 
 supra. 
 
 « Cudden V. Tite (1858) 1 Giff. 395. 
 
 ' Poole V. Shergold (1786) 1 Cox 273 ; Magennis v. Fallon (1829) 2 
 Moll. 561. 
 
 •^ Nelson v. Bridges, supra; Broun v. Dibbs (1878) 25 W.R. 776; 
 Leppington v. Freeman, supra. 
 
 3 Dyer v. Hargrave (1805) 10 Ves. 505 ; Sherwin v. Shakspear (1854) 
 5 DeG.M. & (>. 517; Bennett v. Stone (1902) 1 Ch. 226, 237; (1903) 
 1 Ch. 509.
 
 iiFI'liCTS OF Till-; CONTRACT. 27!) 
 
 profits from tlie time of takin<^ possession,' and to some 
 extent, may act as owner without thereby prechidinj;- 
 himself from afterwards objecting to the title. Thus, 
 he may gather in crops or cut underwood in a proper 
 course of husbandry." but may not do anv acts which 
 tend to depreciate the vendor's securit}' for the purchase- 
 money, such as cutting- down limber or otherwise com- 
 mitting- waste," for in this respect the purchaser's posi- 
 tion resembles that of a mortg-agor in possession. And 
 if the contract is rescinded by the vendor or not com- 
 pleted by the purchaser, the latter may be liable to 
 account for the rents and piofits received by him dur- 
 ing possession." 
 
 Outgoings. — In the absence of anv agreement to the 
 contrary, the vendor must pa}- all outgoings until the 
 time for completion," for this obligation must be re- 
 garded as correlative to his right to receive the rents 
 and profits during the same period. As to such out- 
 goings as are current at the end of the period and are 
 legally apportionable, the vendor bears the part attri- 
 butable to the period." 
 
 Intf:kl:st. — If a time is fixed for completion, and there 
 is delay attributable to the purchaser, he must from that 
 day pay interest upon the purchase-money, though it 
 has been lying idle and appropriated to the purchase.' 
 and though he has not had possession of the propert}'. 
 If, on the other hand, a day is fixed for completion, and 
 there is delav attributable to the vendor, the purchaser, 
 if he has been in actual possessi(^n or in receipt of the 
 
 ' Potiv// V. Miirtvr (1803) 8 Ves. 146 ; Fliitlycr v. Cocker (1805) U Yes. 
 25: Birch v.Jov (1852) 3 H.L. Cas. 565: Ballard v. Shiitf (1880) 15 
 Ch. D. 122: Lcppin^ton v. Frccnuni (isyi) 40 W.R. 348: Fletcher v. 
 L. & Y. Rly. Coy. (1902) 1 Ch. 907. 
 
 ■^ Burroughs v. Oakley (1819) 3 Swan. 159 ; Small v. Attwood (1832) 
 You. 506: Osborne & Harvev (1841) 1 Y. and C.C.C. 116: and see 
 TurqUaiul v. Rhodes (1868) 37 L.J. Ch. 830. 
 
 ^ See Crockford v. Alexander (1808) 15 Ves. 138 : Donovan \ . Fricker 
 (1821) Jac. 165. 
 
 * See Leppin^fon v. Freeman , suprti. 
 
 ^ Carrodus v. Sharp (1855) 20 Beav. 56. 
 
 ^ As to " outgoings " and " apportionment" see ante, p. 236. 
 
 ' Calcraft v. Roebuck (1790) 1 Ves. 221 : and see Hyde v. Price (1837) 
 8 Si. 593.
 
 280 VENDORS A.\D PURCHASERS. 
 
 rents and profits, must pay interest unless and until his 
 money has been appropriated to the purchase and lying 
 idle, and notice of such being the case has been given 
 to the vendor;' but if out of possession, it would appear 
 that he will be chargeable with interest only from the 
 time when he might prudently have taken possession, 
 i.e., when a good title was shown" and verified;" and 
 though he may, if he please, in the interim, pay interest 
 and take the rents and profits from the time fixed for 
 completion, he is not bound to do so where the interest 
 exceeds the rents and profits.' Where the contract is 
 silent as to the time for completion, interest is payable 
 from the time when the vendor has made out his title 
 so that the purchaser could safely take possession.' 
 The interest usually payable, unless the contract pro- 
 vides otherwise, is at the rate of four per cent, per 
 annum. 
 
 LiKX. — Independent!}' of any agreement between the 
 parties, the vendor has an equitable lien upon the pro- 
 perty .sold in respect of the unpaid purchase-money.*^ even 
 though the purchaser has been let into possession, and 
 the latter may be restrained by injunction from commit- 
 ting any act by which the yendor's security- might 
 be diminished.' The purchaser has an analogous lien 
 in respect of purchase-money wholly or partly paid 
 pending completion," provided failure to complete is 
 not due to the purchaser's default.' 
 
 ' Pouell V. Martvr (\803) SVes. 146: Roberts v. Massey (1807) 13 
 Yes. 561 ; Regent's Canal Coy. v. Ware (1857) 23 Beav. 575. 
 
 - Fortebloiv v. Shirley (1806) 13 Yes. 81 ; Binks v. Rokehv (1819) 2 
 Sw. 222; yo«c'.s v. Mmhl (1827) 4 Kuss. US; Carrodtis v. Sliarp (1855) 
 20 Beav. 56. 
 
 ■' Parr v. Lovegrove (1857) 4 Drew. 170. 
 
 ^ Esdailc V. Stevenson (1822) 1 S. & S. 123 ; Jones v. Mudd, supra. 
 
 ■■ Carrodus v. Sharp, supra ; Wells v. Maxn-ell (1863) 32 Beav. 550; 
 Re Pifiott & G.W. Rlv. Coy. (1881) 18 Ch. D. 146; Re Keehlc and 
 Stilwell's Brick Coy. (1898) 78 L.T. 383; Halkett v. Dudley (1907) 
 1 Ch. 590 ; and see generally, ante. pp. 230. 231. 
 
 6 See Lysaght v. Edwards (1876) 2 Ch. D. 499. 506; Mackrcth v. 
 Symons (1808) 15 Yes. 329; and see post, p. 285. 
 
 ' Crockford v. Alexander (1808) 15 Yes. 138. 
 
 " Rose v. Watson (1864) 10 H.L.C. 672. 
 
 •' Dinn v. Grant (1852) 5 De G. & Sm. 451.
 
 EFFECTS OF THE CONTRACT. 281 
 
 SkCTION 2 AsSlCiNMENT. 
 
 ASSIGNMKNT OV THE PROPERTY SoLU. — (1) Bv THE 
 
 Vendor. — Since, from the time of the contract for sale, 
 the purchaser is the equitable owner of the propert\' 
 sold, the vendor is not entitled to dispose of it, whelhcr 
 by way of sale or otherwise, to any other person ; £ind 
 any such disposition constitutes a breach of contract 
 for which the purchaser is entitled to a remedy in 
 damages, without making any offer to complete the con- 
 tract or other formality,^ and the vendor ma\' be re- 
 strained by injunction from so parting with his estate 
 in the land." If, however, the vendor makes such a dis- 
 position, either for a legal estate to a volunteer, whether 
 such volunteer has or has not notice of the contract f(jr 
 sale, or to a purchaser who has notice of the contract,' 
 or for an equitable estate only to any person,' the 
 alienee takes subject to the purchaser's eciuities under 
 the contract, and may be joined as a party to an action 
 for specific performance of the contract, and ma}' be 
 ordered to convev his interest in the land to the pur- 
 chaser in order to complete the sale."" But if, upon such 
 an alienation by the vendor, the alienee accjuires the 
 legal estate for viiluable consideration actually paid or 
 executed in good faith and without notice of the con- 
 tract for sale, he is entitled to hold this estate free from 
 all equities of the purchaser, whose sole remedv is then 
 against the vendor in damages." And the alienee, tak- 
 ing in good faith and for the like valuable consideration, 
 is entitled to the .same priority over the purcha.ser, not 
 onl}' where he has accjuired the legal estate, but also 
 
 • Main's Case (1596) 3 Co. Rep. 20b; Lovelock v. Fmiiklvn (1J>46) 
 8 Q.B. 371 ; Synge v. Synge (1894) 1 Q.B. 466. 
 
 •^ Hadley v. London Hank of Scotland (1865) 3 De G. J. & Sm. 63 ; 
 SpillerwSpiller (1819) 3 Swan. 556: Echliffv. Baldxvin (1809) 16 Ves. 
 267; Curtis v. Buckingham (1813) 3 Ves. & B. 160. 
 
 •^ Dawson v. Ellis, 1 J. & W. 524. 
 
 * Willoiigtiby V. Willoiighby (1756) 1 T.R. 763, 773. 
 
 •'' Taylor v. Stibhert (1704) 2 Ves. 437: Poffer v. Samlcrs (18461 
 
 6 Hare 1 . 
 
 " Mansell v. Mansell (1732) 2 P. Wras. 678 ; Synge v. Synge, supra ; 
 Cleniow V. Gcach (1870) 6 Ch. App. 147; Pilcher v. Raxolins (1872) 
 
 7 Ch. App. 259; Joseph v. Lyons (1884) 15 QBD. 280: Hallas v. 
 Robinson (1885) 15 O-B.D. 288.
 
 '■282 VENDORS AND PURCHASERS. 
 
 where he has, before notice of the contract for sale, 
 acquired the best right to call for the legal estate/ If 
 the vendor, pending completion, resells the land and con- 
 veys the legal estate therein to a third person without 
 receiving payment of the whole price, such third per- 
 son is protected against the original purchaser's prior 
 equity as regards so much of his purchase-money as he 
 has paid before receiving notice of the first sale, and is 
 entitled to hold his legal estate as security for the 
 amount so paid; but after he has received such notice 
 he cannot safely pay the balance, for he will not be 
 entitled to set up his contract of sale as specifically en- 
 forceable against the original purchaser, and, as between 
 himself and the vendor, his contract w^ill be rescinded 
 and discharged from performance." And if such third 
 person takes only an equitable estate in the land sold 
 for valuable consideration, he cannot, after notice of the 
 original contract for sale, protect himself against the 
 original purchaser's claim by taking a conveyance of 
 the legal estate." 
 
 (2) By the Purchaser, — As we have seen,' the pro- 
 perty sold is, in equit\-, the purchaser's property from, 
 the time of the contract, subject to the contract being 
 specifically enforceable. He may therefore sell, charge 
 or devise his equitable interest in the property as he 
 pleases.* 
 
 Assignment of Benefit of Contract. — Either the 
 vendor or the purchaser may voluntarily assign the bene- 
 fit of the contract to another person," and such a disposi- 
 tion mav be either by wav of absolute assignment of the 
 whole contract or for the purpose of securing some lesser 
 advantage to the assignee, such as the repayment of 
 
 ' WiHoti,i<lihy V. Willoiiglibv (1756) 1 T.R. 763; Wiliiiot v. Pike, 
 5 Hare 14 ' Pc'rhaiu v. Kciiipsfcr (1907) 1 Ch. 373. 
 
 - Jones V. Stanley (1731) 2 Eq. Gas. Abi. 685, pi. 9. 
 
 •'' Potter V. Saniiers (1846) 6 Hare 1 : cf. Tavlor v. Russell (1892> 
 A.C. 244 ; Bailey v. Barnes (1894) 1 Ch. 25. 
 
 ' See ante, p. 273. 
 
 •' Paine v. Meller (1801) 6 Ves. 349, 351. 
 
 '' Wood V. Griffiths (1818) 1 Swan. 43; Sluru- v. Foster {\?,12) 5 H.L. 
 321 ; Tolhurst \''. Assoc. Portland Cement Manufacturers (1900), (1903) 
 A.C. 414 ; Dan-son v. G.N. & Citv Rlv. (1905) 1 K.B. 260.
 
 KFiixis OF I hi: coxtract. 28-"> 
 
 monev lent;' ar it ina\' be an assignment of the contracL 
 as to part of the property. Thus, if the purchaser 
 assigns the benefit of his contract to a sub- 
 purchaser, and notice of the assignment is gi\en to the 
 vendor, the sub-purchaser is entitled to stand in the place 
 i)f the original purchaser, and can obtain specific per- 
 formance against tiie vendor." The sub-purchaser must, 
 howexer, be readv and willing to undertake the burden as 
 well as the benefit of the contract.' Although it is usually 
 necessary to make the (jriginal purchaser a party to an 
 action bv the sub-purchaser for specific performa'nce, that 
 is not so where there has been a novation of the contract, 
 i.e., where the vendor has accepted the sub-purchaser in 
 place of the original purchaser, and there are no equities 
 l3et\\een the original contracting parties.' Such an 
 assignment of the benefit of the contract is an assign- 
 ment of a legal chose in action within Section 25 (6) of the 
 Judicature Act, 1873, enabling the assignee in his own 
 name to sue the vendor for damages for breach of con- 
 tract, provided the assignment was an absolute assign- 
 ment in writing under the hand of the assignee, not pur- 
 porting to be by way of charge only, of which express 
 notice in writing was given to the vendor .'' Neither 
 partv to the contract can, however, by the mere assign- 
 ment of his interest therein, transfer also his obligations 
 so as to escape from his liabilitv thereunder; that can 
 onlv be brought about b}- the consent of all three parties, 
 when there is, in fact, a novation of the contract.'' 
 
 Effect of Death of Vendor. — On the death of a 
 vendor of freeholds, after the making of a valid and en- 
 forceable contract for sale, , the purchase-money forms 
 part of his personal estate, and his rights under the 
 contract can be enforced by his personal representatives, 
 who have power to convev the land for all the estate and 
 
 ' Brounc v. London Necropolis Cow (1867) 6 W.R. 188; Shaw w 
 Foster (1872) 5 H. L. 321 : Dnriunn v. Robertson (1898) 1 Q.B. 765. 
 
 ■^ Shaii' V. Foster, supra. 
 
 "' Crabtree v. Poole (1871) 12 IC(] 13 ; Sliaic \. Foster, supra. 
 
 * Manchester Brewery Coy. v. Coombs (1901) 2 Ch. 60S. 
 •'■ Torkington v. Ma gee (1902) 2 K.B. 427. 
 
 * Tolhurst V. Assoc. Portland Cement Mfrs. (1903) A.C 414 ; and see 
 generally, a)ite, pp. 110-115.
 
 284 VENDORS AND PURCHASERS. 
 
 interest vested in the deceased vendor at his death in any 
 manner proper for giving effect to the contract.' Where 
 the deceased vendor sold in exercise of a power, the pur- 
 chaser may enforce the contract against those who be- 
 came entitled on the vendor's death.' If the vendor 
 were seised of the property sold for an estate tail, and he 
 died without having barred the entail, his estate therein 
 passes to the heir in tail, or if there is no such heir, to the 
 reversioner or remainderman, and the contract is not en- 
 forceable against these persons, and the purchaser's only 
 remedy is an action against the vendor's representatives 
 to recover his deposit with interest and expenses.^ In 
 the case of a sale of copyholds, if the vendor had an 
 equitable interest only, the contract can be enforced by 
 and against his personal representatives;' but, where the 
 vendor had a legal estate in the copyholds, such estate 
 passes to his devisee or customary heir, according as the 
 vendor dies testate or intestate in respect thereof, pro- 
 vided the title has been accepted and the contract is 
 valid at the time of his death f and if the customary^ 
 heir is an infant, the purchaser must apply to the Court 
 for a vesting order." Where the deceased vendor was 
 tenant for life under the Settled Land Acts, and agreed 
 to sell in that capacity, the contract is enforceable 
 against and by every successor in title for the time being 
 of the deceased vendor, and may be carried into effect 
 by any such successor.' 
 
 Effect of Death of 1'urchaser. — On the death of 
 the purchaser, if the contract was enforceable against 
 
 ' Conveyancing Act, 1881, sect. 4 (I) ; Land Transfer Act, 1897, 
 sect. 2 (2) ; and see Conveyancing Act, 1911, sect. 12, over-riding Re 
 Pawley and London ami Provincial Bank (1900) 1 Ch. 58 ; and see 
 Roberts v. Marchant (1843) 1 Ph. 370 ; Hoddel v. Piigh (1864) 33 Beav. 
 489. 
 
 - Shannon v. Hradstrcct (1803) I Sch. & Lef. 52 ; Mortlock v. Biillcr 
 (1804) 10 Ves. 292. 
 
 ^ Fines and Recoveries Act, 1833, sects. 40, 47. 
 
 ' Land Transfer Act, 1897, sect. 1 (4) ; Re Sontervi/le and Turner 
 (1903) 2 Ch. 583. 
 
 •''Copyhold Act, 1887, sect. 45: Copyhold Act, 1894. sect. 88; 
 Lysaght v. Edwards (1876) 2 Ch. D. 499; and see Re Mill's Trnsfs 
 (1887) 37 Ch. D. 312 ; (1888) 40 Ch. D. 14. 
 
 « Re Beaufort (1898) W.N. 148. 
 
 " Settled Land .\ct, 1882. sect. 32 (2) : Settled Land Act, 1890. sect. 6.
 
 EFFECTS OF THE CONTRACT. 285 
 
 him at the time of his death,' it may be enforced bv tlie 
 persons who succeed to his ecjuitable estate in the land 
 contracted to be sold. A general or residuar)- devise in 
 a will will pass this estate," though where the property 
 agreed to be bought is freehold or an equitable estate 
 in copyhold,' it will vest in the lirst place in the deceased 
 purchaser's legal personal representatives.' Sint-e both 
 the heir or devisee and the personal representatives are 
 interested, the one in having a proper conveyance and 
 a good title, and the others in the payment of the pur- 
 chase-money, they should be joined as parties in a suit 
 to enforce the contract against the vendor.^ Formerly, 
 the heir or devisee was entitled to have the purchase- 
 money raised and paid out of the deceased purchaser's 
 personal estate ]^ but under the Real Estate Charges 
 Acts, 1854, 1867 and 1877,' the persons entitled to the 
 property take it charged with the vendor's lien for the 
 purchase-mone\', whether the property is freehold, copy- 
 hold or leasehold,** unless the purchaser has made a will, 
 and has expressed a contrary intention.^ Moreover, if 
 the contract was so framed that the vendor had no lien 
 for his purchase-money, the Acts would not apply, and 
 the heir or devisee could claim to have the purchase- 
 money paid out of the personal estate." And w^here the 
 Arts do apply, if the contract is subsequently rescinded, 
 or for any other reason is not performed, the heir or 
 devisee cannot now claim to have the purchase-money 
 raised and expended in the purchase of the land, but is 
 entitled to nothing.'^ 
 
 I Biickinasfer y. Harrop (1802) 7 Ves. 341, 344; Broome v. Monck 
 (1805) 10 Ves. 597, 601. 611. 
 
 - Wills Act, 1837, sects. 3. 23. 24. 
 
 • Re Somerville v. Turner (1903) 2 Ch. 583. 
 
 ■" Land Transfer Act, 1897. sect. 1. 
 
 ' Fry. Specific Performance, 4th ed., § 217. 
 
 ^ See Whittaker \- . Whittakcr {1792) '\ Bro. C.C. 31; Holt v. Holt 
 (1694) 2 Vern. 322 ; Garnett v. Acton (1860) 28 Beaw 333. 
 
 ' Locke King's Acts, 17 and 18 Vict. c. 113, sect. 1 ; 30 and 31 Vict, 
 c. 69, sects. 1, 2 ; 40 and 41 Vict. c. 34, sect. 1. 
 
 ^ Re Kershaw (1888) 37 Ch. D. 674. 
 
 '•^ Re Cockcroft (1883) 24 Ch. D. 94. 
 
 "' Ibid. 
 
 " Ibid.
 
 *286 VENDORS AND PURCHASERS. 
 
 Effect of Bankruptcy of Vendor,- — Upon the bank- 
 ruptcy of a vendor, under an uncompleted contract, the 
 leg"al estate in the property agreed to be sold vests in his 
 trustee in bankruptcy, subject to the purchaser's equit- 
 able right under the contract to have the propertv con- 
 veyed to him upon payment of the purchase-money.^ 
 Where the whole of the purchase-monev has been paid 
 before the act of bankruptcy, the vendor would have 
 become a bare trustee for the purchaser, and the pro- 
 perty would not be assets in the bankruptcy, and would 
 not pass to the trustee in bankruptcy.^ The purchaser's 
 remedy is either in damages for breach of the contract, 
 in which case his claim is provable in the vendor's bank- 
 ruptcy,'' or for specific performance against the trustee 
 in bankruptcy;' and where the trustee cannot disclaim 
 the property agreed to be sold on the ground that it is 
 burdened with onerous covenants,^ or where, though he 
 might disclaim the property, he does not do so, he can- 
 not disclaim the contract.^ And even where the con- 
 tract imposed an obligation upon the vendor to do some 
 act which would cast An expense upon his estate, and the 
 property is leasehold or freehold, subject to onerous 
 covenants, though disclaimer bv the trustee of both 
 property and contract would free the estate from the ob- 
 ligation to do that act and expend the money, it would 
 not affect the equitable interest in the land which the 
 purchaser had acquired under the contract.' And 
 although the disclnimer of the contract would determine 
 the trustee's right to call upon the purchaser to pa^' an\- 
 money or perform any other act under the contract, yet 
 
 1 Ex parte Rahbiiige (1878) 8 Ch. D. 367; and see Si'. Thomas' 
 Hospital V. Richardson (1910) 1 K.B. 271 ; Ca)-valho v. Burn (1833) 
 4 B. & Ad. 382. 
 
 - Bankruptcy Act, 1914. sect. 38 (1); Winch v. Kcclcy (1787) 1 T.R. 
 619; Bocidinfifon v. Caselli (1853) 1 E. & B. 879; Ex parte Rabbidsie. 
 .supra ; cf. Re Bastable (1901) 2 K.B. 518, 529. 
 
 •■' Bankruptcy Act, 1914. sect. 28. 
 
 ' Hardy v. Fothcrgill (1888) 13 App. Gas. 351 ; Pcarcc v. Bastable s 
 Trustee (1901) 2 Ch. 122 ; Re Reis (1904) 2 K.B. 769 ; Re Taylor (1910) 
 1 K.B. 562; Levy v. Stofidon (1898) 1 Ch. 478. 
 
 ■"' Bankruptcy Act, 1914, sect. 54. 
 
 * Pearce v. Bastahle's Trustee, supra ; Re Bastable, supra. 
 
 "• Re Bastable, supra; ]3ankrnptcy Act, 19)4, sect. 54.
 
 EFFECTS OF THE CONTRACT. 281 
 
 tlie purcliaser could still call upon the trustee to convey 
 the land to him,' or could apply to the Court for an order 
 vesting the property in him." Where the purchaser has 
 notice of an act of bankruptcy, he should not pay his 
 purchase-money to the bankrupt, for the trustee could 
 claim it again from him ; but he may treat the contract 
 as broken and sue for the return of his deposit f and 
 a purchaser who pays his purchase-money to the vendor 
 after the latter has been adjudicated bankrupt cannot 
 obtain a conveyance of the property from the trustee 
 without paying the price again to him, even though he 
 had no notice of the bankruptcy.' 
 
 Effect of Bankruptcy of Purchaser. — Where the 
 purchaser becomes bankrupt, his rights under the con- 
 tract vest in, his trustee in bankruptcy," who may either 
 elect within a reasonable time' to complete the contract, 
 or may disclaim the contract as " unprofitable."" The 
 disclaimer operates as from its date, and, thereupon, the 
 vendor's only remedy is to prove as a creditor in the 
 bankruptcy for the loss he has suffered by the dis- 
 claimer,' and to retain the deposit,** for he cannot obtain 
 specific performance of the contract against the pur- 
 chaser's trustee in bankruptcy .'•' If the vendor has notice 
 of an act of bankruptcy committed by the purchaser, he 
 cannot safely proceed with the contract so long as the 
 act of bankruptcy remains available, for anv money sub- 
 sequently paid to him by the purchaser may be recovered 
 by the trustee in bankruptcy under a consequent adjudi- 
 cation of bankruptcy against the purchaser.'" For this 
 
 ' Bankruptcy Act, 1914, sect. 54 ; Re Bastablc (1901) 2 K.B. 518. 
 
 •^ Ibid. 
 
 '^ Lowes V. Lush flSOS) 14 Ves. 547; Poiccl! v. Mursluill Pcirl;es 
 and Co. (1899) 1 Q.B. 710. 
 
 * Ex Parte Rabbidge (1878) 8 Cli. D. 367. 
 
 * E.x parte Stapieton (1879) 10 Ch. D, 580, 590. 
 ^ Bankruptcy Act, 1914, sect. 54. 
 
 ' Ibid. 
 
 " Ex parte Barrcll (1875) 10 Ch. App, 512 ; Collins v. S7/;;/,so«. (1883) 
 11 Q.B.D. 142. 
 
 3 Holloway v. Yorke (1877) 25 W.R. 627. 
 
 '*> See Ponsford v. Union of London &c. Bank (1906) 2 Ch. 444 ; Re 
 Pollitt (1893) 1 g.B. 175, 455; Davis v. Petrie (1906) 2 Q.B. 786; cf. 
 M'Carthy v. Capital and Counties Bank (1911) 2 K.B. 1088.
 
 288 VENDORS AND PURCHASERS. 
 
 reason, a purchaser who has committed an act of bank- 
 ruptcy which remains available against him cannot en- 
 force specific performance of the contract against the 
 vendor/ If time is of the essence of the contract, and the 
 purchaser's act of bankruptcy is still available against 
 him on the date fixed for completion, the vendor may 
 treat the contract as broken and retain the deposit ;" and 
 if time is not of the essence of the contract, the vendor, 
 on notice of the purchaser's act of bankruptcy, may re- 
 pudiate the contract on the ground that the purchaser is 
 not, and will not at the time fixed for completion, be 
 capable of making a valid payment of the purchase- 
 money/ Where the vendor has no notice of an act of 
 bankruptcy committed bv the purchaser, and. the con- 
 tract is executed by payment of the purchase-money be- 
 fore an adjudication in bankruptcy, the transaction is 
 expressl}^ protected, and the purchaser's trustee cannot 
 recover the money back/ If the purchaser is adjudi- 
 cated bankrupt pending completion, the vendor should 
 make an application in writing to the trustee requiring 
 him to decide whether he will disclaim the contract or 
 not ; for if the trustee does not disclaim within twenty- 
 eight days of such application, or such extended period 
 as the Court may allow, he will be deemed to have 
 adopted the contract/ The trustee cannot enforce the 
 contract against the vendor without the express per- 
 mission of the committee of inspection/ 
 
 Effect of Winding-up of Company. — Every dis- 
 position of the property of a company made after the 
 commencement of the winding-up by the Court is void 
 unless the Court otherwise orders/ Therefore, a con- 
 tract for the purchase or sale of land from or to a com- 
 pany cannot safely be completed after the presentation 
 of the winding-up petition/ After the winding-up order 
 
 ' Franklin v. Brownlow (1808) 14 Ves. 550. 
 
 - Collins V. Stimson (1883) 11 Q.B.D. 142. '^ Ibid. 
 
 ^ Bankruptcy Act, 1914, sect. 45. "' Ibid., sect. 54. 
 
 '^ Ibid., sect. 56; and see Re Vavaaoiir (1900) 2 Q.B. 309; Re 
 Sneczum (1876) 3 Ch. D. 463. 
 
 ' Companies Act. 1908, sect. 205 (2). 
 
 ^ See Re Wiltshire Iron Coy. (1868) 3 Ch. App. 443, 447; Re Civil 
 Service and General Store. Ltd. (1887) 57 L.J. Ch. 119.
 
 liFFtCTS OF THli COXTUACT. 2Si) 
 
 lias been madi', the complelion of the contract rests, sub- 
 ject to the control of the Court,' witli the liquidator, who 
 may, in the exercise of his powers to realise the assets of 
 the company, adopt and carry into effect a contract of 
 sale. But apart from this, it is the duty of the liquidator, 
 if the contract is specifically enforceable, to complete the 
 title of the purchaser b\- aftixing the company's common 
 seal to a conveyance of the legal estate, and to receive 
 the purchase-money. In the case of a contract for pur- 
 chase, the liquidator may, with the concurrence of the 
 vendor, resell the land and pay the vendor pro tanto out 
 of the proceeds, leaving the vendor to prove in the wind- 
 ing-up for any deficiency in the price.' In the case of a 
 voluntary winding-up, the powers of the directors cease 
 on the appointment of a liquidator,' and aftci- this dale 
 completion with the compan}- cannot take place. But 
 the liquidator has the same power to carry the contract 
 into effect as in the case of a winding-up by the Court,' 
 and he ought to complete a contract for sale which is 
 specifically enforceable. If he is in doubt as to what is 
 beneficial for the company, he can apply to the Court 
 for directions,* or submit the matter to a general meeting 
 of the members.*^ If the licjuidator under a compulsory 
 or voluntary winding-up declines to complete the con- 
 tract, the other party can either prove in the winding- 
 up for any loss which he has sustained,' or bring an 
 action for specific performance.* Where judgment is 
 given for specific performance and the company is the 
 vendor, completion will follow by conveyance by the 
 company and payment of the purchase-money to the 
 
 ' Companies Act, 1908, sect. 151 (2) (a) : see Re Colonial aiui Getienil 
 Gas Coy. (1867) W.N. 42. 
 
 - See Thames Plate Glass Cov. v. Land and Sea Telegraph Coy. 
 (1870) 11 Eq. 248, 250. 
 
 •"* Companies Act, 1908, sect. 186 (iii). 
 
 * Ibid., sects. 151 (2) (a), 186 (iv) ; see Re Bank of South Auxtralia 
 (1895) 1 Ch. 578, 592. 
 
 ■' Companies Act, 1908, sect. 193. 
 
 * Ibid., sect. 194. 
 
 ' See Ciirric V. Consolidated Kent Collieries Corpn. (1906) 1 K.P>. 
 134. 
 
 " See Thames Plate Glass Coy. v. Land and Sea Telegraph Coy., 
 supra. 
 
 19
 
 .290 XliXDORS AND PL RCHASKRS . 
 
 liquidator; if the company is the purchaser, the vendor's 
 claim, as the result of specific performance, is a money 
 claim in the windincf-up for the deficiency in the pur- 
 chase-money left after resale of the land, and payment 
 of the proceeds to the vendor.' Where the other party 
 to the contract refuses to complete, the liquidator can 
 bring an action in the name of the company, either for 
 breach of contract or for specific performance. 
 
 Effect of Writ of Execution. — Neither a vendor 
 nor a purchaser of land is concerned with a writ of exe- 
 cution or order affecting the interest of the other party 
 in the land, unless the writ or order is registered." An 
 execution creditor of the vendor, whose writ is duly 
 registered, acquires a chattel interest in the land, and 
 also a charge upon the vendor's interest therein, the 
 interest of the judgment creditor being subject to the 
 purchaser's equitable interest in the land under the con- 
 tract for sale.* Consequently, though the right of the 
 purchaser to completion of the contract by conveyance 
 is unaffected, he cannot safely pay the purchase-money 
 without either satisfying the judgment creditor so far 
 as possible thereout, or obtaining his consent to pa3ment 
 of the whole amount to the vendor.^ and the creditor 
 should join in the conveyance. Where execution is 
 not levied until after the whole of the purchase-money 
 has been paid, so that the vendor has no longer any 
 beneficial interest in the land, an execution by a creditor 
 of the vendor will not, it seems, affect the land .sold;" 
 but, in such circumstances, a judgment creditor of 
 the purcha.ser can obtain a charge on his interest in the 
 land.*^ The appointment of a receiver of the vendor's 
 interest in unpaid purchase-money, or of the purchaser's 
 interest in the land, is ineffectual if for any reason the 
 c(jntract is not completed, so that the money or land, as 
 
 'See Thames Plate Glass Coy v. Land and Sea Telegraph Coy. 
 (1X70) 11 Eq. 248. 250. 
 
 '^ Land Charges Registration and Searches Act, 1888, sects. 5, 6 ; 
 Land Charges Act, 1900, sect. 3 ; see ante. pp. 262, 263. 
 
 =* Lodge v. Lyselcy (1832) 4 Sim. 70: Whitwovth v. Gaiigain (1846) 
 1 Ph. 728. 
 
 * Forth V. Norfolk (1820) 4 Madd. 503. 
 
 '■ See Prior v. Penpraze (1817) 4 Price 99 ; Sug. 14th ed. 527. 
 
 • Statute of Frauds, sect. 10 ; Judgments Act, 1838, sect. 11.
 
 RFF['.( IS OF IIIK CONTRACT. 291 
 
 the case mav be, does iKjt come into the hands of the 
 debtor.' 
 
 Effect of Lunacy. — The contract will not be avoided 
 by the fact that either party becomes a lunatic before 
 completion, provided that such party was sane when the 
 contract was entered into,^ and provision for its com- 
 pletion in such an event is made by the Lunacy Act, 
 LS9().' JMuis, where the vendor becoines a lunatic or 
 insane after the purchase-money has been paid, or the 
 contract so far performed that a decree for specific per- 
 formance would be a matter of course, and the lunatic 
 is a mere trustee for the purchaser, the latter can obtain 
 an order vesting the estate in him.' And in other 
 cases the judge in lunacy may order, authorise and 
 direct the committee of the estate of the lunatic so found 
 to perform any contract relating to the property of the 
 lunatic entered into by the lunatic before his lunacv;'' 
 and the committee must, in the name and on behalf of 
 the lunatic, execute and do all such assurances and 
 things for giving effect to any such order as the judge 
 directs, and every such assurance and thing will be 
 valid and take effect accordingly." in the case of a 
 person of unsound mind who is not a lunatic so found 
 by inquisition, similar j^owers are exercisable bv such 
 person as ihc judge mav ilirect.' 
 
 SiiCTiox 3 — Dktei^mination of Rights of Parties — 
 Vendor and Purchaser Summons. 
 
 Vendor and Purchaser Summons. — A vendor or pur- 
 chaser of real or leasehold estate in England, or their 
 representatives respectively, may at any time or times, 
 and from time to time apply in a summary way to a 
 judge of the Chancery Division of the High Court in 
 chambers, in respect of any requisitions or objections, 
 
 ' RidoKt V. Fowler (1904) 2 Ch. 93. 
 
 -' Owen v. Diivies (1747) 1 Ves. Sen. 82; Hall v. Warren (1804) 9 
 Ves. 605. 
 
 ' 53 and 54 Vict. c. 5. 
 
 * Ibid., sect. 135; Re Ciditing (1869) 5 Ch. App. 72; Re Pagani 
 <1892) 1 Ch. 236. 
 
 ■■' Lunacy Act, 1890, sect. 120. 
 
 ^ Ibid., sect. 124. ' Ibid., sect. 116.
 
 292 VENDORS AND PURCHASERS. 
 
 or any claim for compensation, or any other question 
 arising- out of or connected with the contract, not being 
 a question affecting the existence or validity of the con- 
 tract, and the judge can make such order upon the 
 application as to him seems just, and will order how 
 and by whom all or any of the costs of and incident to 
 the application shall be borne and paid.' 
 
 Scope of Jurisdiction. — Whatever could be done in 
 chambers upon a reference as to title under a decree 
 for specific performance, when the contract was estab- 
 lished, can be done upon proceedings under the above 
 enactment.^ It enables the parties to put themselves in 
 chambers in exactlv the same position in which they 
 would have been, with all the rights which they would 
 have had, under a judgment for specific performance; 
 so that evidence by affidavit may be given, and the de- 
 ponents may be cross-examined.^ And in cases where 
 this procedure is available, it must be adopted in pre- 
 ference to bringing an action f but it was not intended 
 to enable the Court summarily to try disputed questions 
 of fact,'' nor can a vendor and purchaser summons be 
 treated as if it were an action for specific performance, 
 or for rescission of the contract, or for any other pur- 
 , pose.^ By this procedure, either party is enabled to ob- 
 tain a decision upon some isolated point or points with- 
 out having recourse to an action for specific perform- 
 ance,*^ such as whether a requisition has been sufficiently 
 answered or is precluded by the conditions,' or any 
 short point of law or construction arising out of the con- 
 tract, abstract, or requisitions.^ 
 
 ^ Vendor and Purchaser Act, 1874, sect. 9. 
 
 - Re ISiirrouf<hs, Lynn and Sexton (1S77) 5 Ch. D. 601, per James, 
 L. J., at p. 604. 
 
 •' See /wH.if V. Clianiherlayn (1887) W.N. 158 ; Re Nichols and Van 
 Joel's Contract (1910) 1 Ch. 43. 
 
 ' Re Burroughs, Lynn and Sexton, supra ; Re Popple and Barratt's 
 Contract (1877) 25 W.R. 248; Re Gray and Metrop. Rlw Cow (1881) 
 44 L.T. 567. 
 
 ' Re Har}<reaves and Thompsons Contract (1886) 32 Ch. D. 454. 
 
 " Ibid. ; Re Wallis and Barnard's Contract (1899) 2 Ch. 515, 519. 
 
 " Re Burroughs, Lynn and Sexton, supra. 
 
 " Re Popple and Barratt's Contract, supra ; cf. Re Wallis a)iU 
 Barnard's Contract, supra.
 
 EFFECTS OF THI-: CONTUACT. 29'i 
 
 Questions Determixable ox Summons. — Applica- 
 tions have been made by vendor and purchaser sum- 
 monses for decisions upon questions (a) as to the mean- 
 ing and effect of the contract for sale, such as whether 
 a perpetual rent was properly des<^ribed as a rent- 
 charge;' whether the purchaser was entitled to a right 
 of way to the land sold;^ the effect of a plan upon the 
 construction of expressions contained in the particulars;' 
 the effect of conditions limiting the purchaser's right to 
 investigate or raise objections to the vendor's title, or 
 precluding or providing for compensation for errors of 
 description;* whether a condition is misleading;" 
 whether a vendor has under the conditions and in the 
 particular circumstances of the case, a right to rescind f 
 whether the purchaser is entitled in the circumstances 
 of the case to repudiate the contract ;' whether, and as 
 from what date, the purchaser is liable to pay interest 
 on the unpaid purchase-money;'* (b) as to the abstract;" 
 (c) as to whether the vendor has show^n a good' title in 
 accordance with the contract;" and whether the vendor 
 is bound to answer or comply with a particular requisi- 
 tion ;" (d) as to the interpretation and eft'ect of statutes 
 
 • Re Geranl and Bccchanis Contract (1894) 3 Ch. 296. 
 
 •^ Re Lavcrv and Kirk (1888) 5i Sol. Jo. 127 ; Re Hughes and Ashley 
 (1900) 2 Ch. 595 ; Re Walmsley and Shatv (1917) 1 Ch. 93. 
 
 •'• Re Lindsay and Forder (1895) 72 L-.T. 832. 
 
 ■■ Re Cox and Neve (1891) 2 Ch. 109: Re Nat. Prov. Bank and 
 Marsh (1895) 1 Ch. 190; Re Scott and Alvarez (1895) 1 Ch.596; Re 
 Bey/us and Masters (1888) 39 Ch.. D. 110; Re Ley land and Taylor 
 
 (1900) 2 Ch. 625. 
 
 '• Re Marsh and Granville (1883) 24 Ch. D. 11 ; Re Sandhaeh and 
 Edmondson (1891) 1 Ch. 99. 
 
 « Re Jackson and Oakshott (1880) 14 Ch. D. 851 ; Re Jackson and 
 Haden (1906) 1 Ch. 412; Re Spindler and Mear (1901) 1 Ch. 908. 
 
 " Re White and Smith (1S96) 1 Ch.637; Re Haedicke and Lipski 
 
 (1901) 2 Ch. 666. 
 
 " Re Pigott and G.W.R. Coy. (1881) 18 Ch. D. 146. 
 
 » Re Stamford and Knight (1900) 1 Ch.287; cf. Re Hbsu-orfJi and 
 Tidy (1889) 42 Ch. D. 23. 
 
 '" Re G.N.R. Co. and Sanderson (1884) 25 Ch. I^. 788. 
 " Re Ford and Hill (1S79) 10 Ch. D. 365; Re Glenton to Haden 
 (1885) 53 L.T. 434.
 
 294 VENDORS AND PURCHASERS. 
 
 if they arise out of or are connected with the contract;* 
 (e) as to the incidence and Hability for expenses such 
 as stamps, searches, perusiil and execution of convey- 
 ance by concurring parties ;' (/) as to payment of com- 
 pensation in respect of deficiency or excess in quantity, 
 or deterioration of premises owing to delay in delivery 
 of possession, or removal of fixtures;"' {g) as to the form 
 and contents of the conveyance;^ (h) as to the right to 
 title deeds/ Since questions affecting the validity or 
 existence of the contiact are expressly excluded, the 
 question Avhether the contract is fraudulent cannot be 
 decided by this mode of procedure." 
 
 CONSEQUEXTIAL RELIEF. — The judgc is enabled under 
 this procedure to give such relief as is the ordinary con- 
 sequence of the decision upon the point submitted to 
 him.' so that where it is determined that the vendor has 
 not made a good title, an order may be made for the 
 return of the deposit with interest, and payment by the 
 vendor of the purchaser's costs of investigating the 
 title.* And whether the point raised is decided against 
 the purchaser or not, the judge may declare the title too 
 doubtful to be forced on the purchaser.^ 
 
 ' Re Highett and Bird (1903) 1 Ch. 287; Re Brooke aud Fremlin 
 (1898) 1 Ch. 647 ; RcMiiridy and Roper (1899) 1 Ch. 275 ; Re Cavendish 
 and Arnold (1912) W.N. 83 : Re Ponsford and Newport School Board 
 (1894) 1 Ch. 454. 
 
 '^ Re Weston and Thomas (1907) 1 Ch. 244; Whiting to Loonies 
 (1881) 17 Ch. D. 10; Re Willett and Argent i (1889) 60 L.T. 735; Re 
 Duthv and Jesson (1898) 1 Ch. 419; Re Johnson and Tiistin (1885) 
 30 Ch. D. 42 : Re Moody and Yates (1885) 30 Ch. D. 344. 
 
 •■' Re Terrv and White (1886) 32 Ch. D. 24; Re Hare and O' More 
 (1901) 1 Ch. 93 ; Re Orange and Wright (1885) 52 L.T. 606. -, 
 
 * Re Cooke (1877) 4 Ch. D. 454; Re Brooke and Fremlin (1898) 
 1 Ch. 647 ; Re Pigott v. G.W.R. Coy. (1881) 18 Ch. D. 146; Re Wallis^ 
 and Barnard (1899) 2 Ch. 515 ; Re Birmingham Land Cov- and 
 Allday (1893) 1 Ch. 342. 
 
 •^ Re Williams and Newcastle (1897) 2 Ch. 144. 
 
 « Re Hargreaves and Thompson (1886) 32 Ch. D. 454 ; Re Sandhach 
 and Edmondson (1891) 1 Ch. 99. 
 
 ' Re Hargreaves and Thompson (1886) 32 Ch. D. 454. 
 
 * Ibid . Re Metrop. Rly. Coy. and Cosh (1880) 13 Ch. D. 607; Re 
 Higgins and Hitchman ('l882)'21 Ch. D. 95; Re Bryant and Barning- 
 ham (1890) 44 Ch. D. 218 ; Re Haedicke and Lipsk'i (1901) 2 Ch. 666. 
 
 9 Re Thackwray and Young (1888) 40 Ch. D. 34 ; cf. Re Wallis and 
 Barnard (1899) 2 Ch. 515.
 
 effects of the conti^xct. 295 
 
 Section 4 — I\i:.mi;i)Ii:s for Breaches of L'nc().mim.i:tei) 
 
 Contract. 
 
 Rescission hv X'endor.^ — ^Where ihe contract contains, 
 a stipulation that the vendor may rescind on the happen- 
 ing- of certain events, the vendor may, if these events 
 arise, exercise his right of rescission.' In the absence' 
 of such a stipulation, the vendor can only rescind if 
 the conduct of the purchaser is such as to amount to a 
 reptidiation of the contract.^ 
 
 Forfeiture of Deposit and Resale by Vendor.— 
 The vendor's rFglu to forfeit the deposit and to resell the 
 propertv lias already l)een discussed.' It is only neces- 
 sary here to state that the vendor's right in this respects 
 does not extend to instalments of purchase-money,' and 
 where the contract for sale provides that a sum paid in 
 part payment of the purchase price shall not be for- 
 feited if the purchaser fails to complete, and the pur- 
 chaser makes default, it is not an implied terin of the. 
 contract that such sum ma}" be retained by the vendor 
 for a reasonable time as security for any loss which may 
 be sustained on the resale of the property.' 
 
 RECcnERV OF Deposit by Pcrciiaser. — Where the 
 vendor fails to make a good title," or otherwise makes 
 such default in performance of the contract as entitles 
 the purchaser to rescind the contract,' the purchaser 
 mav recover the deposit with interest,* together with his* 
 costs of investigating the title,® and apparently other 
 
 1 See ciiitc. pp. 2_'5-228. 
 
 ■^ Ho'uc V. Sniifli (1884) 17 Ch. 1). 89; and see Coniica// \. Hciison 
 (1900) 2 Cli. 298; Holl \ . Hiinn'll (1911) 2 Ch. 551 ; and see post.,^ 
 p. 296. 
 
 ■"• See ante, pp. 240, 241. 
 
 ^ See Cornwall v. Hcnson (1900) 2 Ch. 298. 
 
 ■ Harrison v. Holland and Hanncn (1922) 1 K.B. 211. 
 
 <5 Grav V. Guffcridgc (1828) 1 Man. and Rv. (K.B.) 614 ; Hduards v. 
 Hoddin'g (1814) 5 Taunt. 815; Want v. Staflibrass (1873) 8 E.\ch. 175. 
 
 • See Hone v. Gakstatter (1909) 53 Sol. Jo. 286; Re Hiicklesbv and, 
 Atkinson (1910) 102 LT. 214. 
 
 ' Day V. Sinfilefan (1899) 2 Ch. 320; Poucll v. Marshall (1899) 
 1 O.B.'710 ; AV Bryant and Barniniiham (1890) 44 Ch. D. 218. 
 
 ■' Re Bryant and Barnins^hani . supra ; Re Hare and O'More (1901) 
 1 Ch. 93 :'Re Walker and Oakshott (1901) 2 Ch. 383.
 
 296 VENDORS AND PURCHASERS. 
 
 expenses incurred by him under the contract.^ He is 
 not, however, entitled to damages for loss of his bar- 
 gain unless the vendor has the means of making a good 
 title, and declines to take the necessary steps to do so." 
 
 Repudiation by Purchaser. — Where the vendor's 
 default goes to the root of the contract/' as where there 
 is failure to show and prove a good title/ or where the 
 vendor is unable to convey himself or has not the power 
 to compel a conveyance from any other person,'^ the pur- 
 chaser is immediately entitled to repudiate the contract.'' 
 The same principle applies where the property which 
 the vendor can convey is substantially different from the 
 property contracted to be sold," but trifling defects may 
 be regarded by the Court as matters for compensation, 
 and not as entitling the purchaser to repudiate the con- 
 tract.* The principle does not, however, apply to a de- 
 fect of conveyance as distinguished from a defect of 
 title f and where judgment for specific performance has 
 been given, the purchaser may not repudiate without 
 the leave of the Court;" nor where he is informed by 
 the vendor of the defect in title, and that it cannot be 
 cured without some delay ;'^ nor where restitutio in 
 
 1 SeeGosbell v. Archer (1835) J Ad. and El. 500; Dc Benutrdx v. 
 Harding (1853) 8 Exch. 822. 
 
 ^ Bain v. Fothergill (1874) 7 H.L. 158; Flurcaii v. Thoruhill (1776) 
 2 W. Bl. 1078 ; Eitgell v. Fitch (1869) 4 Q.B. 659 ; Day v. Singleton 
 (1899) 2 Ch. 320 ; Re Daniel (1917) 2 Ch. 405. 
 
 •'» See ante, pp. 67, 68. 77, 78, 217, 232, 245 ; cf. Mcrscv Steel Cov. v. 
 Naylor (1884) 9 App. Cas. 434, 443. 
 
 * Re Head's Trustees and Macdouald (1890) 45 Cli. D. 310; 
 Bellamy v. Debenham (1891) 1 Ch. 412. 
 
 •'' Ibid. : Forrer \. Nash (1865) 35 Beav. 167; Brewer v. Broaduooil 
 (1882) 22 Ch. D. 105 ; Lee v. Soames (1888) 36 W.R. 884. 
 
 « See Venn v. Cattell (1873) 27 L.T. 469; Conipton v. Baglex (1892) 
 1 Ch. 313. 
 
 '^ Flight \ . Booth (1834) 1 15ing. (N.S.) 370; Re Arnold (1880) 14 
 Ch. D. 270 ; Jacobs v. Revell (1900) 2 Ch. 858. 
 
 " Shepherd w Croft (1911) 1 Ch. 521; Carlish v. Salt (1906) 1 Ch. 
 335 ; Re Puckctt and Smith (1902) 2 Ch. 258 ; Halhctt v. Dtidlev (1907) 
 J Ch. 590. 
 
 '•' Hatten v. Russell (1888) 38 Ch. I). 334 : Re Hiicklesbv and 
 Atkinson (1910) 102 L.T. 214. 
 
 '" Halkctt V. Dudley, supra. 
 
 " Wylson V. Dunn (1887) 34 Ch. D. 569.
 
 i;n- litis OF THE (Oi\rRA( T. 297 
 
 integrum is not substantially possible/ A lij^htful 
 repudiation by the purchaser operates as a rescission of 
 the contract, and entities the ]3urchaser to recovery of 
 the deposit." 
 
 Damages. — Where there is an enforceable contract for 
 Side, either party to the contract nia}' maintain an action 
 for damages in respect of breach of the contract by the 
 other. ^ Such damages are in the nature of compensa- 
 tion and not of punishment.' and are recoverable accord- 
 ing to the rules laid dow n in lladley v. Baxcndale.' The 
 vendor cannot recover the purchase-money in such an 
 action, notwithstanding that the purchaser has been let 
 into possession/ unless the conveyance has been 
 executed ;' but on a resale at a lower price, he can re- 
 cover the difference in price and the expenses of resale." 
 The amount which a purchaser can recover in such an 
 action is limited, as a general rule, to the expenses 
 which he has incurred, together ^\•ith the amount of his 
 deposit.^ 
 
 Specific Pei-^formance. — The remedy by specific per- 
 formance is within the discretion of the Court,'" which 
 is exercised in accordance with settled principles," and 
 wath due regard to considerations, such as the conduct 
 of the parties to the contract, or the circumstances of 
 the case, which do not affect the right to damages at 
 
 ' Erlangerv. New Sombrero Pliospliate Coy. (1878) 3 App. Cas. 
 1218 ; and see ante, p. 75. 
 
 2 Lee V. Sotniics, (188S) SG W.K. 884; Weston \. Savage (1879) 10 
 Ch. D. 736. 
 
 •"^ See ante, p. 198; Laird v. P/»/ (1841) 7 M. & \V. 474; Wi/liaiiis 
 V. Glenton (1866) 1 Ch. App. 200. 
 
 " Addis V. Craiiiophone Coy., Ltd. (1909) A.C. 488. 
 
 •'• Hadlcy V. Baxendale (1854) 9 p:.\ch. 354 ; and see ante, p. 19« ; 
 Robinson v. Harnian (1848) 1 E.\ch. 850. 
 
 6 Laird v. Pint, supra ; Moor v. Roberts (1858) 3 C.B. N.S. 830. 
 ''Ibid.; East London v. Mefrop. Rly. Coy. (1869) 4 Exch. 309; 
 Leader V. Tod-Heatly (1891) W.N. 38. 
 
 " Noble V. Hdu-ardes (1877) 5 Ch. D. 378. 
 
 3 See ante, pp. 295, 296. 
 
 '" See Scott v. Alvarez (1895) 2 Ch. 603. 
 
 »' See Re Hallett's Estate (1879) 13 Ch. D. 696; Leecli v. Sehweder 
 (1874) 9 Ch. 467; Hexter v. Pearee (1900) 1 Ch. 341 ; /. Jones v. 
 Tankerville (1909) 2 Ch. 440.
 
 298 VENDORS AND PURCHASERS. 
 
 law.^ Moreover, the remedv is available only where 
 damages at law would be inadequate. To a purchaser, 
 the land bought may have a peculiar and special value," 
 and a remedy in damages for breach of contract on the 
 part of the vendor would, in such a case, be inadequate. 
 But specific performance is ecjually the right of every 
 vendor who may want the purchase-money, and to 
 divest himself legally of the estate which is no longer 
 vested in him beneficially, whereas, at law, he would be 
 left with the estate on his hands and would recover 
 damages only according to the view of a jury.^ 
 
 Specific performance will not be granted in the case 
 of contracts which are voluntary, i.e., without consider- 
 ation ;" or which involve continuous acts and the super- 
 vision of the Court, e.g., to work a mine." or to build or 
 repair;^ or which involve the rendering of continuous 
 personal services." An infant cannot enforce specific 
 performance, since specific performance cannot be en- 
 forced against him f the essential element of mutuality 
 of remedv is lacking. On the same principle, where a 
 vendor has no title to the estate which he has contracted 
 to sell, and no right to compel the real owner to convey, 
 he cannot force the purchaser to take a conveyance from 
 the real owner .^ But the rule regarding lack of mutualitA- 
 is subject to exceptions. Thus, a part\- having an 
 option to purchase, the exercise of which binds the 
 
 ' See note 11, p. 297; White v. Damon (1802) 7 Yes. 30; Havwood 
 V. Cope (1857) 25 Beav. 140 ; Lamarc v. Dixon (1873) 6 H.L. 414' 
 
 •^ Adilerley v. Dixon (1824) 1 Sim. & S. 610. 
 
 •"* Eastern Counties Rly. v. Haivlces (1855) 5 H.I. 376; Cogent v. 
 Gibson (1864) 33 Bea\-. 557. 
 
 * See Penn v. Baltimore (1750) 1 Yes. Sen. 444. 
 
 •• Booth y. Pollard (\M0) 4Y.&C. Ex. 61 ; Pollard v. Clayton (1855) 
 1 K. & J. 462 : Wlwatlev v. Westminster Brymbo Coal Co. ('l869) 9 Eq. 
 538. 
 
 ^ Flint V. Brandon (1803) 8 Yes. 159; Paxton v. Newton (1854) 2 
 Sm. & G. 437 ; but see Wolverhampton Corporation \ . Rmmons (1901) 
 1 K.B. 515; Molyneux v. Richard (1906) 1 Ch. 34. 
 
 '' Pickering v. Elv (1843) 2 Y. & C. Ch. 249; cf. Fortescuc v. 
 Lostwithiel and Fowey Rly. Coy. (1894) 3 Ch. 621. 
 
 " Lnmlev v. Ravenscroft (1895) 1 Q.B.683; Flight v. Holland (1828) 
 4 Russ. 298. 
 
 " Forrer \ . Nash (1865) 35 Bea\-. 167; Re Br\ant and Barninghani 
 (1890) 44 Ch. D. 218; Bellaniv v. Dehenh,rm '{]iiO]) 1 Ch. 412; cf.) 
 Halkett V. Dudley (1907) 1 Ch.'590.
 
 Ki-i-ix'i s OF Till-; coNTK \r'i . 299 
 
 vendor, may enforce the contract against the vendor 
 when he has exercised liis option ;' a purchaser may 
 preclude himself from pleading the vendor's original 
 incapacitv to complete by not repudiating the contract 
 after learning of the incapacity, or by recognising the 
 contract by his conduct;' a beneticiar\-, against whom a 
 contract by the trustee to purchase the trust property is 
 not binding, ma}' waive the want of mutuality and en- 
 force the contract against the trustee ;' a party who has 
 signed a written contract so as to satisfy the Statute of 
 Frauds, mav not set up as a defence that the person 
 claiming specific performance, not having signed the 
 memorandum, could not have been sued;' and, though 
 a vendor, who, at the time of the contract, had n(jt the 
 full estate and interest he had contracted to sell, could 
 not compi'l ilu' purchaser to complete, the purchaser 
 may, however, claim a conveyance of such interest as 
 the vendor has, with comjiensation for the deficiency.' 
 As a general rule, a plaintiff suing for the specific 
 performance of a contract for the sale of lancj mu.st 
 prove that there is an unimpeachable contract existing 
 between himself and the defendant, and that the defen- 
 dant has failed or refuses to perform his part, \A''hether 
 there is in fact a contract depends on the rules of law 
 relating to the elements of a valid contract." The com-, 
 pleteness of a contract is to be determined at the com- 
 mencement of the action, since it is at that time that, 
 non-performance must be incapable of justification." 
 Performance ma\', however, be ordered even if the con- 
 tract is incomplete at that date, if the incompleteness is 
 due to the default of the defendant, and it is such that it 
 can be remedied or compensated ;** or where a term 
 
 ' Wci-iliiig V. Weci/in.ii (1861) 1 John. lS; H. 4J4 
 
 - Halkctt V. DtiiUcv (1907) 1 Ch. 590 ; \V\lson v. Dunn (1887) 34 Ch. 
 D. 569. 
 
 ■' Ex parte Laccy (1802) 6 Ves. 625 ; and see ante. pp. SO, 81. 
 
 ^ Mor,iiiin V. HolfonI (1852) 1 Sm. & G. 101 ; Seton v. Shuic (1802) 
 7 Ves. 265 : Fcra-lc \- . Frccnimi (1804) 9 Ves. 351 : and see trnte, 
 pp. 41, 55. 
 ,. ' See post, p. 304. 
 
 « See ante, pp. 22-82. 
 
 ' ShariUoxv v. Cottcrcll (1881) 20 Ch. D. 90. 
 
 " Pritcluird v. Ovcy (1820) 1 Jac. & \V. 396: Soinncs v. E(l,i<c (I860) 
 John. 669.
 
 'M)0 VKNDORS AND PURCHASERS. 
 
 which is not then ascertained is capable of being ascer- 
 tained by means available to the Court ;' or where the 
 uncertainty is due to the fraud of the defendant.' Where 
 the terms of an agreement are uncertain and ambiguous, 
 so that the obligations of the parties are not clearly 
 ascertained, specific performance is not, as a rule, en- 
 forced, as where land is sold according to a plan insuf- 
 ficiently identified f or where land is sold subject to a 
 reserv'ation of land " necessary- for a railway";^ or 
 where the description of land to be sold is too vague.* 
 Specific performance will be refused where the descrip- 
 tion of the subject matter of the contract is insufficient 
 to enable the Court to ascertain the intention of the 
 parties.'" And since the parties to the contract must be 
 sufficiently identified, uncertainty of description in this 
 respect is a bar to performance.' Moreover, in a con- 
 tract for sale, the price is an essential element, and un- 
 less this is ascertained by the contract, or its mode of 
 ascertainment is provided for by the contract, the con- 
 tract cannot be enforced.* 
 
 Apart from questions relating to the subject-matter, 
 the parties, and the price, the omission of material terms 
 renders a contract unenforceable, unless they can be sup- 
 plied by the Court either by construction or inference, 
 or implication of law ; and the question as to what 
 terms are material in any contract depends on the nature 
 of the contract. Thus, in the absence of express agree- 
 ment, a contract for the sale of a house is prima facie 
 
 » Owen V. Thomas (1834) 3 My. & K. 353; Monro v. Taylor (1S50) 
 8 Hare 51 ; Pickles v. Siifcliffe (1902) W.N. 200. 
 
 - Chattock V. Miillcr (1878) 8 Ch. D. 177. 
 
 =' Hodiics V. Horsfall (1829) 1 Russ. & M. 116. 
 
 * Pearcc v. Watts (1875) 20 Eq. 492 : and see Savill Bros. v. Bcthell 
 (1902) 2 Ch. Dli : Utiiart v. L.N.W. Rly. Coy. (1852) 1 De C M. & G. 
 721. 
 
 •'' Lancaster v. Dc Trafford (1862) 8 Jur. (N.S.) 873; South Wales 
 Rly. Coy. v. Wytlies (1854) 5 De G. M. & G. 880. 
 
 ' Stewart v. Alliston (1815) 1 Mer. 26; cf. Oivcn \ . Thomas (1834) 3 
 My. & K. 353; Monro v. Taylor (1850) 8 Hare 51 ; Wylson v. Dunn 
 (1887) 34 Ch. D. 569 ; and see ante. p. 49. 
 
 ^ See Potter v. Diiffiehl (1874) 18 Kq. 4; Ue Holland (1902) 2 Ch. 
 360 ; and see ante, p. 48. 
 
 " See ante, pp. 51-54.
 
 i:M'"i;( IS of hik (omkact. 301 
 
 (onstrued as a contract to sell the tee simple;* a similar 
 contract ma\', b\' reason of its other terms, be construeci 
 as a contract to sell the vendor's interest.* In a contract 
 for the sale of land, it is implied that the vendor shall 
 make a good title and deliver up the deeds or give satis- 
 factory proof of their contents and loss.' 
 
 As a rule, contracts for the sale of land must c(jmply 
 with the recjuirements of the Statute of Frauds,' but 
 courts of equity have treated certain circumstances as 
 taking a case out of the operation of the statute and have 
 accordingh' granted relief bv specific performance, not- 
 withstanding the absence of a sufficient note or memo- 
 randum. The fact that the sale is by order of the Court 
 ma\' be sufficient to take the case out of the statute.' The 
 effect of fraud,'' and acts of part performance,' lia\'e al- 
 ready been discussed. 
 
 The Court will not enforce specific yjerformance if the 
 contract is not equal and fair,*" and the cjuestion of un- 
 fairness must be determined as at the date of the con- 
 tract, though sometimes unfairness arising at a subse- 
 quent date may be material." Thus, suppression of 
 fact, mistake, fraud or misrepresentation on the part of 
 one of the parties,'" or circumstances inconsistent with 
 intelligent assent, such as infancy, intoxication, duress, 
 mental weakness not amounting to lunacy, distress, 
 illiteracy, or want of advice, render it inequitable that 
 performance of the contract should be enforced. Speci- 
 ' fie performance ma\' also l^e refused where performance 
 
 ' Hii.i<lics V. Parker (1841) 8 M. & W. 244 ; and see ante p. 50. 
 
 •^ Bower V. Cooper (1843) 2 Hare 408. 
 
 ' Re Halifax Banking Coy. anil Wood (1898) 79 L.T. 536; but see 
 Hawksley v. Outram (1892) 3 Ch. 359; Lloyd w Nowell (1895) 2 Cli. 
 744 ; Ogilvie v. Foljawbe (1817) 3 Mer. 53 ; Re Gloag and Miller (1883) 
 23 Ch. D. 320. 
 
 ■* See ante pp. 41, 44-56. 
 
 ■' Att.-Gen. \\ Dt/v (1749) 1 \'es. Sen. 218; Blagden \ . Bradbear 
 (1806) 12 Ves. 466 ; Re Goren, ex parte Ciitts (1838) 3 Deac. 242 : Lord 
 V. Lord (1827) 1 Sim. 503. 
 
 ^ See a)ite, pp. 58, 75-78. 
 
 ^ See ante, pp. 58-60. 
 
 " Walpole V. Orford (1797) 3 Ves. 402. 
 
 '•' Emery v. Wase (18031 8 Ves. 505. 
 
 '" See ante. pp. 61-82.
 
 302 VENDORS AND PURCHASERS. 
 
 Avould be injurious to third parties,* or would involve a 
 breach of trust," or breach of a prior contract with a third 
 party/ or would compel the defendant to do an act 
 which he is not lawfully competent to do/ or would in- 
 volve a gross breach of duty as between principal and 
 <ngent.^ 
 
 Where specific performance would expose the defen- 
 dant to great hardship," it may be refused, unless such 
 hardship flows from the defendant's conduct,' or because 
 his speculation has proved unfortunate for him." Thus, 
 specific performance has been refused where there was 
 no right of way to the land sold ;'' where the property was, 
 without the knowledge of either vendor or purchaser, 
 being used for unlawful purposes;'" where the vendors 
 personally agreed to discharge the estate from incum- 
 brances and some of them were trustees ;" where trustees 
 had sold in circumstances amounting to a breach o( 
 trust ;'^ where a mortgagee who had foreclosed and in- 
 tended to sell as absolute owner had inadvertently pur- 
 ported to sell as a mortgagee with a power of sale/' 
 
 Apart from any question of fraud or misrepresenta- 
 tion, the existence of a defect in the subject matter of the 
 contract mav, in certain cases, be a ground for refusing 
 specific performance.'"' The defect must be latent, i.e., 
 
 ^ Re Carter and Kenderdine (1897) 1 Ch. 776; Peter v. Nicholls 
 (1871) 11 Eq. 391. 
 
 ■•* Mortlock V. Bullcr (1S04) 10 Yes. 292; Ord v. Noel (1830) 5 Madd. 
 438 ; Harnett v. Yielding (1805) 2 Sch. & Lef. 549. 
 
 ■' Willmott V. Barber (1880) 15 Ch. D. 96. 
 
 * Harnett v. Yielding, supra ; Delves v. Gray (1902) 2 Ch. 606. 
 
 ■'' Slirewsbury,&c., Rly. v. L.N.W. Rly. (1857) 6 H.L. 113: c(. 
 Mortlock V. Biiller, supra. 
 
 '• Re Highett and Bird (1903) 1 Ch. 287. 
 
 " Hawkes v. Eastern Counties Rly. Coy. (1852) 1 De G. M. & G. 737. 
 
 " Haywood v. Cope (1858) 25 Beav. 140. 
 
 " Denne v. Light (1857) 8 De G. M. & G. 774. 
 
 '» Hope V. Walter (1900) 1 Ch. 257. 
 
 " Wedgwood V. Adams (1844) 6 Beav. 600. 
 
 '- Mortlock y. Bullcr (1804) 10 Yes. 292; White v. Cuddon (1842) 8 
 CI. & Fin. 266. 
 
 '^ Watson V. Marston (1853) 4 De C;. M. & (i. 230. 
 
 '^ Bcnfley v. Craven (1853) 17 Beav. 204 ; Crosse v. Lawrence (1852) 
 9 Hare 462.
 
 EFFECTS OF THE CONTRACT. 303 
 
 not obvious on a reasonable examination.' and nia\- con- 
 sist either in the physic<'il nature of the subject matter of 
 the contract,' or in the fact that the subject matter is 
 subject to unusual or onerous covenants or circum- 
 stances.'' On the same principle, any .substantial varia- 
 tion between the description in the contract and the pro- 
 perty contracted to be sold may be set up in answer to 
 the claim for specific performance.'* And the defect or 
 variation must be essential, otherwise specific perform- 
 ance will be granted with compensation.* A defect can- 
 not be relied on if the contract provides for sale of the 
 property "\\ith all faults.'"^ or is so framed as in terms 
 to leave uncertain the matter complained of." 
 
 A plaintiff seeking to enforce specific performance of 
 a contract must show that all conditions precedent have 
 been fulfilled, and that he has performed or been ready 
 and willing to perform his part, and that he is read)- and 
 willing to perform all future obligations imposed on 
 him by the contract; subject to certain exceptions, any 
 failure in this respect on his part bars his claim to speci- 
 fic performance. Thus, a vendor of land will not be 
 granted specific performance where he is unable to prove 
 a good title ;^ and even in cases where no decision is 
 given that the title is bad, the Court may consider the 
 title *oo doubtful to force upon an unwilling purchaser.* 
 
 1 Dyer v. Hargrave (1805) 10 Ves. 505: Shackleton v. Sutcliffc (1847) 
 1 De G. & Sm. 609 ; Denny v. Hancock (1870) 6 Ch. App. 1. 
 
 ^ Dyer v. Hargrave, supra. 
 
 ••' Hampshire v. Wilkcns (1878) 7 Ch. D. 555 ; Re Lauder and 
 Baglev (1892) 3 Ch. 4I ; Molynenx v. Hawfrey (1903) 2 K.U. 487; 
 Reeve \. Berridge (1888) 20 Q.B.D. 523; Re White and Smith (1896) 
 1 Ch. 637 ; Carlish v. Salt (1906) 1 Ch. 335 ; Re Haedicke and Lipski 
 (1901) 2 Ch. 666; Heyitood v. Mallalieu (1883) 25 Ch. D. 357; AV 
 Lloyd's Bank and Lillington (1912) 1 Ch. 601. 
 
 * Ayles V. Cox (1852) 16 Beav. 23. 
 
 5 Shepherd v. Croft (1911) 1 Ch. 521 ; and see post p. 304. 
 
 ^ Ward V. Hohbs (1878) 4 App. Cas. 13; Baglehole v. Walters (1811) 
 3 Camp. 154. 
 
 " Monro v. Taylor (1852) 3 Mac. & G. ,713; cf. Davis v. Shepherd 
 (1866) 1 Ch. App" 410. 
 
 *■ See ante, pp. 220-222. 
 
 9 See Re Nichols and Van Joel (1910) 1 Ch. 43 ; Parker v. Tootal 
 (1865) 11 H.L. 143 ; Osborne v. Rowlett (1880) 13 Ch. D. 794 ; Mitllings 
 V. Trinder (1870) 10 Eq. 449 ; Re Thackwray and Young (1888) 40 Cli. 
 D. 34: Pyrke v. Waddingham (1852) 10 Hare 1.
 
 804 VENDORS AND PURCHASERS, 
 
 In every suit for specific performance of a sale of land, 
 whether brought by the vendor or the purchaser, it is 
 the purchaser's right to have an incjuiry directed 
 whether a good title can be made to the property sold, 
 i.e., a good title according to the contract.^ If the 
 Court considers the title to be such as the contract pro- 
 vided for, specific performance will be decreed; if on a 
 reference as to title, it is certified that the proper title 
 cannot be made, the purchaser is entitled to rescind the 
 contract, or to claim damages for its breach.' 
 
 Specific Performance with Compensation. — A 
 vendor may obtain specific performance with compen- 
 sation against a purchaser under a contract of sale, even 
 where the vendor is unable to fulfil the exact terms of 
 the contract, provided that the purchaser will, on com- 
 pletion, obtain substantially what he bargained for, and 
 that the difference in value between the property con- 
 tracted for and the property the vendor is able to con- 
 vey can be fairly computed.^ Compensation is not 
 granted to the purchaser where the defect is immaterial 
 or was visible at the time of the purchase, or where the 
 purchaser, after knowing of the defect, conducts himself 
 in such a manner as imphedly to waive his right to com- 
 pensation/ But where the defect is substantial and 
 material, the Court does not grant specific perform- 
 ance with compensation at the instance of the vendor ; 
 nor where the compensation cannot be fairly ascer- 
 tained; nor where the vendor has acted in a manner 
 inconsistent with the contract/ Where the amount of 
 
 ' See Seton on Judgments, p. 2248. 
 
 ■^ See Fry, Specific Performance, 5th Ed. 437. 
 
 ■'■ See Calcraft v. Roebuck (1790) 1 Yes. 221 : M'Oiteen v. Farquhar 
 (1805) 11 Yes. 467 ; Scott v. Hanson (1829) 1 Russ. & M. 128 ; Kin^ v. 
 Wilson (1843) 6 Beav. 124; Grcenhal^h v. Brindlcv (1901) 2 Ch. 324 ; 
 Powell V. Elliott (1875) 10 Ch. App. 424 ; Halscv v. Grant (1806) 13 
 Yes. 73; Binks v. Rokchy (1818) 2 Swan. 222. 
 
 ■• Dyer v. Hargravc (1805) 10 Yes. 505 ; Kinfi \ . Wilson, supra ; 
 Burnell v. Brown (1820) 1 Jac. & W. 168 ; Re Gloag and Miller (1883) 
 23 Ch. D. 320. 
 
 ■' Oshaldiston v. Askew (1821) 2 Jac. & W. 539; Knafchbull v. 
 Grucher i\m5) 1 Madd. 153; Jacobs v. Rcvell (1900)' 2 Ch. 858; Re 
 Arnold (1880) 14 Ch. D. 270; Aylcs v. Cox (1852) 16 Beav. 23; Re 
 Lloyd's Bank and Lillington (1912) 1 Ch. 601 ; Jones v. Rimmer 
 (1880) 14 Ch. D. 588; Cato v. Thompson (1882) 9 Q.B.D. 616.
 
 Eii-ECTs oi' thl; cuntuact. 3U5 
 
 compensation can be assessed, the purchaser may, how- 
 ever, enforce specilic performance with an abatement of 
 the price against a vendor who is unable to convey what 
 he contracted to sell,' except where the vendor has re- 
 served a right to determine the contract rather than 
 complete with compensation,' or wiiere the conveyance 
 of the partial interest of the vendor might prejudice the 
 rights of third parties,' or where the purchaser was aware 
 from the first that the vendor could not convey the whole 
 of what he contracted to sell ;' or where the enforcement 
 of the contract with compensation would be inequit- 
 able/ The cases where the conditions of sale expressly 
 provide for or exclude compensation for misdescription 
 or errors in the particulars, have already been discussed/ 
 
 Mnnnft 5'"'^''"-"''' '■ •^"'^'''' ^1804) 10 Ves. 292; Rudd v. Lasccllvs 
 (1900) 1 Ch. 815 ; Western v. /^,..s-.s-c>// (1814) 3 Ves. & B. 187; Horrocks 
 V. Rigby (1878) 9 Ch. D. 180. 
 
 - Re Terry and White (1886) 32 Ch. D. 14. 
 
 •' Thomas v. Bering (1837) 1 Keen 729. 
 
 /iL^ffo^f- ^'■'^''■"•"•■o" (1870) 5 Ch. App. 534 ; cf. Hooper y. Smart 
 (1874) 18 Eq. 683. 
 
 ,'^,":^''""'^- '^^'^^'■'^ (1865) 34 Beav. 611 ; cf. McKenzic v. Hesketh 
 (1877) 7 Ch. D. 675; Rudd v. Lascellcs, supra. 
 
 ^ See ante, pp. 231-234. 
 
 20
 
 CHAPTER IV. 
 CCXMPLETIOX AND COXXEYAXCE. 
 
 Section 1 — Preparation and For:^! of Conxevance. 
 
 Preparation. — In the absence of agreement to the 
 contrary, it is the duty of the purchaser, at his own 
 expense, to prepare the deed of conveyance and to 
 tender it to the vendor for execution by him. The 
 tendering' of the deed by the purchaser does not neces- 
 sarily operate as ci waiver of objections or requisitions 
 upon the title;' and even alihough the purchaser has 
 accepted the title shown, he is not thereby precluded 
 from making objections or requisitions upon points not 
 disclosed to him by the vendor, but discovered by 
 searches or inquiries made by the purchaser on his own 
 account," or upon points which are matters of con- 
 veyance and not of title," unless the objection or requi- 
 sition is one precluded by the contract.'* 
 
 Form of Convpzyance. — The form of the conveyance 
 is primarily a matter for the purchaser to determine, 
 provided that the burden laid on the vendor, in respect 
 of expense and othersvise, is not materiallv increased 
 bv the purchaser's choice/ Where properties of 
 different kinds, or held under different titles, or separated 
 bv considerable distances, are sold by one contract, 
 the purchaser may require them to be conveyed by 
 separate deeds and ma}- apportion the purchase money 
 as he ma\ think iit.*^ If the purchaser desires to take a 
 conveyance by separate deeds of plots of land included 
 in a prix-ate contract as one entire estate, it is advisable 
 to insert an express stipulati<m to that effect in the 
 contract.^ 
 
 1 Burroughs v. Oakley (1819) 3 Swan. 159; Harxvood v. Bland (\2,^2) 
 Fl. & K. 540; Re Perriam (1883) 32 W.R. 359; cf. Clivc v. Beaiiiiiont 
 (1S48) 1 De G. & S. 397; Sweet v. Meredith (1S62) 8 Jur. N. S. 637: 
 Liikey V. Hi^gs (1855) 1 Jur. N. S. 200. 
 
 2 Re Jackson ami Oakshott (1880) 14 Ch. D. 851 ; Re Moiicktoii and 
 Gilzean (1884) 27 Ch. D. 555 ; Re Haedicke and Lipski (1901) 2Ch. 660. 
 
 •' Re Hughes and Ashley (1900) 2 Ch. 595. 
 ■• See, generally, ante, pp. 223-225. 
 
 ■' Clark V. May (1852) 16 Beav. 273 ; Cooperv. Cartu-n'ght (1S60) John. 
 679; Hgmont v. Smith (1877) 6 Ch. D. 469. 
 
 * Clark V. May, supra. ' Egmont v. Sinitli, supra.
 
 COMl'LETlUN AxND COWLWSCE. 3U7 
 
 Salk of Inci'.mbkrkd Land. — Where the land sold is 
 subject to mortgages or other charges or incumbrances 
 which have to be paid off, discharged or released to 
 enable the vendor to convey what he has contracted to 
 sell, and these incumbrances are not disclosed by the 
 v'ontract, the purchaser, in the absence of agreement to 
 the contrarv, can compel the vendor ai his own expense 
 to get in the outstanding interests or incumbrances by 
 a separate deed or deeds.' But this right is not usually 
 exercised, and, as a rule, the property is conveyed by one 
 deed in which the vendor and incumbrancers join as 
 parties; it is against the purchaser's interest to require 
 or allow the vendor to take a re-conveyance or con- 
 vevance of incumbered land to himself before completing 
 the purchase.' 
 
 DiSCHARClK OF IXCUMBRAXCKS OX SaI,K BV PaV.MKXT 
 
 IXTO Coi^RT. — Under the Conveyancing Act, 1881,' 
 upon the sale, either by the Court," or out of C^ourt,"" of 
 land subject to an>- incimibran^ e, the Court may, if it 
 thinks fit, on the application of anv party to the sale, 
 direct or allow pa\nient into Court of a sum of money 
 sufficient to provide for the amount charged on the land 
 md futun' costs, expenses and interest;* and the Court 
 may. if it thinks fit, and either after or without notice 
 to the incumbrancer, declare the land to be freed from 
 the incumbrance, and make any order for conveyance, 
 or vesting order, proper for giving effect to the sale. 
 This enables a vendor to procure land, which is subject 
 to mortgages or charges, to he conveved to the pur- 
 chaser for an unincumbered estate without the con- 
 currence of the inctmibrancers.' 
 
 Partics to Coxvfy. — What persons are necessarv 
 parties to the conveyance will have been ascertained on 
 
 ' Sudden. V. & P. ]4tli ed. 555, 557 ; Jones v. Lczvis (1847) 1 De G. & 
 Srn. 245 : Reeves v. Gi/l (1838) 1 Beav. 375. 
 
 '■^ See General Finance, f-c. Cow v. Liberator, &c., Soev. (1887) 10 Ch. 
 D. 15. 20. 
 
 ■' Sect. 5 : see sect. 2 (viii). 
 
 ' See Patching v. Bull (1882) 30 W.K. 244 ; Diclcin v. Dickin (1882) 
 30 W.R. 887. 
 
 • See Milford. &c. Coy. v. Mou-att (18S5) 30 Ch. D. 402. 
 
 " Re Frenie's Contract (1895) 2 Ch. 256. 
 
 ' But see Re G.N.R. Coy. and Sanderson (1S84) 25 Ch. D. 788.
 
 •308 VENDORS AXD PURCHASERS. 
 
 the investigation of the title. Everv person in whom is 
 vested any portion of the legal and equitable estate 
 contracted for in the land sold, or any interest therein, 
 must concur in the conveyance to the purchaser, unless 
 his interest is such that it will be conveyed or defeated 
 by the execution of some paramount trust or power 
 intended to be exercised bv the deed of conveyance. A 
 vendor absolutelv entitled to the land at law and in 
 equity, and if of full capacity, is alone the conveving 
 party. If he is a vendor under disability or has a limited 
 or special capacity, he, or some person or persons on 
 his behalf, mav be able to convev under special statu- 
 tory or other powers.' 
 
 Parties to who.m Co.weyaxce is made. — The pur- 
 chaser is, as a rule, entitled to have the conveyance by 
 the vendor made either to himself or as he shall direct, 
 and for such estate and interest, not exceeding the 
 interest purchased, as he pleases. Where, however, 
 the grantee is to enter into covenants with the vendor, 
 the purchaser cannot substitute a new covenantor for 
 himself without the vendor's consent, and in such a case 
 the nominee must not be under disability. Where a 
 purchaser assigns the benefit of his contract before com- 
 pletion, it is usual, for the purpose of saving the expense 
 of a sec(md conveyance and double stamp dutv, to take 
 the assurance direct to the sub-purchaser. Upon an 
 assignment of the contract the original purchaser is not 
 usually a necessary party to the conveyance, but the 
 vendor may require a recital in the conveyance of the 
 original contract and the assignment; nor is the original 
 purchaser a necessary party on a re-sale by him of the 
 land before completion of his contract, if there is no 
 increase in price. But as the burden of a covenant 
 cannot be assigned over without the covenantee's con- 
 sent, as where a purchaser is bound to enter into a 
 covenant indemnifying the vendor in respect of pav- 
 ment of rent and performance of onerous covenants, 
 the vendor is not obliged to accept the covenant of the 
 purchaser's assignee as a substitute, and mav require the 
 original purchaser to be joined as a part\- to the con- 
 veyance. W^here there is a re-sale at an increased price, 
 the ccmveyance usually states the increased price as the 
 
 ' See ante, pp. 10-21, 110-117. 243 : and seeposf, pp. 333-346.
 
 co.MiM.KiioN ANP COW i;n wci:. '■>i\'.) 
 
 consideration and llie ori<;inal purchasci" is joined as 
 the party receivin^j;- the increase.' 
 
 W^here land is conveyed to persons wlio an- partners, 
 it is ti"enerally mosi conx-enient, where the land is in- 
 icndcd III he ])arl ncrsliip propert\', to nialxc ilic con- 
 Aeyance to th(' partners as joint tenants ai law, but as 
 part of their partnership property in equity. Upon a 
 purchase by trustees, it is the usual practice to convey 
 to them as joint tenants, so that on the death of one, the 
 other or others will lake by sur\-ivorship. W^here it 
 is desired for any purpose and in particular circum- 
 stances not to create a joint tenancy, the conveyance 
 shoidd exjDressly state that the q;rantees take as tenants 
 in common. Land con\e\'ed to a man and his wife is 
 not now conveyed to them as tenants bv entireties, l)ut 
 as joint tenants or tenants in common, as the (\ase may 
 be;" but a c-onveyancc to a husband and his wife and a 
 third person will only give the husband and wife a 
 moiet\- of the land between them.' 
 
 SkCTIOX 2 h\)R.M AM) CoNTKXTS OF DkKD OF 
 
 COWKVAXCK. 
 
 (i.) COXVKVANCK OF FkKKHOLDS. 
 
 Form axd Con'TKNTS of Dfkd. — The assurance of free- 
 hold property to the purchaser is effected by deed, the 
 form of which is .settled by him. It should be framed 
 in su(-h a way that it may: .serve as a g"Ood root of title' 
 at a future date. The ordinary parts of such a deed 
 are the names and descriptions of the parties."* the 
 recitals (if any), the o|o<'rative part (including- the con- 
 sideration, the conveyance itself, the parcels, and the 
 hiihcudiiui , and the covt^nants (if anv are required). 
 
 Rt;< iTAi-s. — Recitals are of two kinds — narrative 
 recitals and introdiiclory recitals. Narrative recitals 
 relate the past history of the property conveyed; intro- 
 ductorx' recitals indicate the purpose of the deed in which 
 
 ' See E'fiiiiout v. Si)iith (1S77) 6 Ch. D. 469 ; but see Delves v. Gray 
 (1902) 2 Ch. r.OG. 
 
 ■^ Kc March (1884) 27 Ch. D. 166 ; riiornlcy v. Tlionilcv (1.S9J) 2 Ch. 
 229: /^f Dixon (1889) 42 Ch. D. 306. 
 
 •' Rcjnpp (1888) 39 Ch. D. 148. 
 
 * See (iitfc, p. 247. ■■ See diifc, p. 307-309.
 
 310 VENDORS AND PURCHASERS. 
 
 they are contained. As a general rule, no recital should 
 be inserted which is not necessary to render the subse- 
 quent part of the deed clear and intelligible, or which 
 has not a logical connection with some operative part 
 of the deed. Xo document or matters which are irrele- 
 v£int, or which cast doubts on the validit}' of the title, or 
 which might be difficult or impossible to explain or 
 produce on a future sale, should be recited. In particu- 
 lar cases, however, recitals not strictly necessary may 
 frequently, with advantage, be included with a view to 
 their becoming evidence under the provisions of the 
 Vendor and Purchaser Act, 1874,' and thereby simplify- 
 ing the title on a future sale. The contract for sale is not 
 recited as a document; the fact of agreement is alone 
 stated. If the vendor is himself entitled to the whole 
 of the interest sold, a recital that he is seised in fee 
 simple is desirable and useful, as it operates b}- way of 
 estoppel ; but otherAvise it may be omitted altogether. 
 Where the vendor is not an absolute owner, the recitals 
 show how he is entitled to convey. When outstanding 
 estates and interests are got in or released by the con- 
 veyance, or where at the date of the contract the propertv 
 is incumbered, and the incumbrancers are paid off on 
 completion and join in the conveyance, the recitals 
 show the title of these additional conveying parties. 
 If the conveyance is made in exercise of a power, the 
 recitals should show how the power was created, how^ 
 it has become exercisable and that all necessary consents 
 have been obtained, and, if possible, the consenting 
 parties should join in the deed. 
 
 CoNsiDKRATiox. — The consideration paid b\- the pur- 
 chaser must be specified together with all other facts 
 and circumstances which affect the dutv which will 
 have to be paid;' the (^mission to do so, though it will 
 not affect the sufficiency of the stamp, or the validitv (jf 
 the deed, will expose the parties to a penalty,'' and may 
 raise the presumption of a resulting use to the; vendor. 
 Moreover, in the case of deeds executed after 1881, a 
 receipt for consideration money in the bodv of a deed 
 operates as a sufficient discharge to a purchaser, the 
 paver thereof, without any further receipt being 
 
 ' See ante. pp. 246, 258. - See post. pp. 326, 327. 
 
 =' See Stamp Act, 1891, sect. 5.
 
 
 C()Mn.i:ri()\ and cc)NVi;v.\nci:. -ill 
 
 endorsed ;' and such a receipt is also sufficient evidence, 
 in deeds executed after 1881, of such payment in favour 
 of a subsequent purchaser who has no notice that the 
 mone\- has not in fact been paid;" and such a receipt, 
 whether contained in the bod\' of the deed or indorsed 
 on ii, operates as an authority to the purchaser to pay 
 the nione\" to the solicitor who produces the deed.' 
 
 Oi'i.KAiUi: Words. — The word "grant" is appro- 
 priate, but not essential, to pass all hereditaments, 
 corporeal and incorporeal; the word "convey" is fre- 
 (|Ut'nil\- used instead, any word indicating- an intention 
 to grant being sullicient for the purpose.' 
 
 PxKCiiLS. — As a rule the description in the deed 
 should correspond with the description in the contract for 
 sale.' but if the description in the contract is not 
 sufficientlv clear and precise, the purchaser is entitled 
 to have inserietl in the deed such a new description, 
 whether in the body of the deed or in a schedule, and 
 supplemented by a plan attached thereto, as will clearly 
 identifv the land intended to be conveyed;"" and where 
 such a new description is inserted, it is desirable to 
 connect it with the old description by stating that the 
 lands were formerly known by the old description, 
 giving the old description.' It is usual to describe the 
 property conveyed both by words and by reference to a 
 plan ; in which case it is desirable that the plan should 
 be used merelv in aid of the description, and not as 
 operating to enlarge or limit the verbal description. ** 
 
 ' Conxeyancing Act. KSM , sect. 5.4. 
 
 ' Ibid., sect. 55. 
 
 •■* Ibid., sect. 56; Trustee Act, 1893, sect. 17. 
 
 ^ See Co. Litt. 301 b. ; Real Property .\c». 1845. sect. 2 ; and see 
 schedule to Conveyancing .\ct, 1881. 
 
 '■ See Monifilicffi v. Werndswortli Borough Council (1908) 73 J. P. 91. 
 
 •5 Re SaJJsoiii iitul Narbcth (1901) 1 Ch. 741 : and see Gonlon- 
 Ciiiiiiiiin!< V. Hoiildsicortli (1910) A.C. 537. 
 
 ■ Ibid. 
 
 " See Llewellyn v.Jersev (1843) 11 M. & W. 183; Barton v. nones 
 (1880) 10 C.B. 261; Davis v. She/)lierd (1866) 1 Ch. App. 410; 
 Thompson v. Hickman (1907) 1 Ch. 550; A\' Sparrozv and James 
 (1902) 79 L.J. Ch. 491 ; Re Sansniii and Ntrrbcfh. supra; EasHvood 
 V. Ashton (1915) AC. 900.
 
 312 VENDORS AND PURCHASERS. 
 
 (xENERAL Words. — The parcels were formerly followed 
 by what were called " general words," and " all the 
 estate " clause, but these are rendered unnecessary by 
 sections 6 and 63 of the Conveyancing Act, 1881, which 
 appl}^ onl}' so far as a contrary intention is not expressed 
 in the deed of conveAance. Thus, a conveyance of land 
 is deemed to include and bv virtue of the Act operates 
 to convev, with the land, all buildings, erections, 
 fixtures, commons, hedges, ditches, fences, ways, 
 waters, watercourses, liberties, privileges, easements, 
 rights and advantages whatsoever, appertaining or 
 reputed to appertain to the land or anv part thereof, or 
 at the time of conveyance^ demised, occupied or enjoyed 
 ■\yith, or reputed or known as part or parcel of or appur- 
 tenant to the land or any part thereof;' (b) a conveyance 
 of land, having houses or other buildings thereon, is 
 deemed to include and by virtue of the Act operates to 
 convey, with the land, houses, or other buildings, all 
 outhouses, erections, fixtures, cellars, areas, courts, 
 courtyards, cisterns, sewers, gutters, drains, wavs, 
 passages, lights, watercourses, liberties, privileges, ease- 
 ments, rights and advantages whatsoever, appertaining 
 or reputed to appertain to the land, houses, or other 
 buildings conveyed, or any of them, or anv part thereof, 
 or at the time of conveyance, demised, occupied, or 
 enjoyed with, or reputed or known as part or parcel of 
 or appurtenant to, the land, houses, or other buildings 
 conveyed, or any them, or any part thereof;^ (c) a con- 
 veyance of a manor is deemed to include and bv virtue 
 of the Act operates to convey, with the manor, all 
 pastures, feedings, wastes, warrens, commons, mines, 
 minerals, quarries, furzes, trees, woods, underw^oods, 
 coppices and the ground and soil thereof, fishings, 
 fisheries, fowlings, courts leet, courts baron, and other 
 courts, view of frankpledge and all th£it belongs to 
 view of frankpledge, mills, mtilctures, customs, tolls, 
 duties, reliefs, heriots, lines, sums of monev, amercia- 
 ments, waifs, estrays, chief rents, quit rents, rentcharge, 
 rents seek, fee farm rents, services, royalties, liberties, 
 privileges, easements, profits, advantages, rights, emolu- 
 ments, and hereditaments whatsoever, to the manor 
 
 ' See Hall v. Byron (1877) 4 Ch. D. 667. 
 
 *■' Conveyancing Act, 1881, sect. 6 (1). •' Ibiil.. sect. 6 (2).
 
 CO.MPLKTION AM) C( >N\i:^ ANX K, 313 
 
 appertainirii^ or reputed to appertain, or at ihe time of 
 conveyance demised, occupied, or enjoved with the 
 same, or reputed or known as part, parcel, or member 
 thereof;' and (d) every conveyance, by virtue oi the Act, 
 is effectual to pass all the estate, ri^hi, title, interest, 
 claim, and demand which the conveying" parties respec- 
 tively have in, to, or on the property conveved, or 
 expressed or intended so to be, or which they respec- 
 tively have power to convey, in, to, or on the same." 
 
 Section 6 of the Conveyancing- Act of 1881, is not 
 intended, however, to alter the rights of the parlies 
 under a contract of sale.' .\ contract for sale of land, 
 either with or withoiu mention of "appurtenances," 
 passes only such rij^hls, privileges, or easements as are 
 legally appendant or appurtenant thereto; and does not 
 in the absence of special stipulations, entitle the pur- 
 chaser to have conveyed to him anv privileges, ea.se- 
 menis, or advantages which were used bv the vendor 
 in connection with the land sold oxer adjoining or other 
 land of his own, but are not necessary for the enjf)\- 
 ment of the propertv as sold.' The vendor may, there- 
 fore, require that words shall be inserted in the con- 
 veyance modifving the provisions of Section 6 of the 
 Conveyancing Act, 1881, to the extent neces.sary to 
 g"ive to the contract for sale its true effect." If, however, 
 the use of some privilege or advantage over the adjoin- 
 ing land retained by the vendor is necessary to the 
 proper enjovment, as contemplated by the contract,'' of 
 the propertv sold, the purchaser will be entitled to have 
 that privilege or advantage granted to him by the con- 
 veyance as a legal easement or right." And as the vendor 
 
 ' Convej'ancing Act, 1881, sect. 6 (3) 
 
 ■^ IhicL. sect. 63 (1). 
 
 •' Re Peck and London School Board (1893) 2 Ch. 315 ; Re Wahiicslcv 
 and Shaw (1917) 1 Ch. 93. 
 
 ^ Bolton V. Bolton (1879) 11 Ch. D. 968 : Barkshire v. Gnibh (1881) 
 18 Ch. D. 616 ; Re Peck and London School Board, supra ; Re Hughes 
 and Ashlev (1900) 2 Ch. 595 ; and see Birntinghani Banking Cov. v. 
 Ross (1888) 38 Ch. D. 295: Burrows v. Lang (1901) 2 Ch. 502: 
 (Godwin V. Schweppes (1902) 1 Ch. 926. 
 
 ' Re Peck and London School Board, supra ; Re Hugltes antl 
 Ashley, supra: and see Broonifield v. Williams (1897) 1 Cii. 602. 
 
 6 See Bayley v. G.W.R. Coy. (1884) 26 Ch. D. 434. 
 
 ' See Brozcne v. Flower (1911) 1 Ch. 219, 224.
 
 314 VEXDORS AND PURCHASERS. 
 
 may, where necessar}', exclude or restrict the operation 
 of the statutory general words and in place thereof, 
 define his liabilities in express and unambiguous terms, 
 so the purchaser is not obliged to accept the general 
 description of his rights which would be given by such 
 general words, but is entitled to have such rights par- 
 ticularly and exactlv defined/ 
 
 Exception's and Reservations. — If any exceptions 
 or reservations are intended to be made, they will con- 
 venientlv follow the description of the parcels. An 
 exception must be of part of the thing granted and 
 which is existing at the time, e.g., the minerals under 
 the surface. A reservation is of some right created for 
 the first time over or in connection with the thing 
 granted, e.g., a rent or royalty, a right of way or other 
 easement, or privilege to be enjoyed over the land, 
 l^xcept where a conveyance of land is made under the 
 Railwavs Clauses Consolidation Act, 1845, or the 
 Waterworks Clauses Act, 1847, mines and minerals 
 pass with a convevance of land unless thev are expressly 
 excepted out of the grant. In everv case, where a ven- 
 dor is selling part of his land, the nature and 
 extent of the easements or quasi-easemenis which 
 he intends to retain should not be left to mere 
 presumption, but should be expresslv reser\-ed. 
 l^nless the right to be reserved bv implication is clearly 
 necessar\- to the enjovment of the property retained by 
 the vendor, the ordinary rule, that a grantor shall not 
 derogate from his absolute grant, will prevent its being 
 claimed against the purchaser.^ But a purchaser is not 
 entitled to an easement over the property retained by the 
 vendor, to an extent inconsistent with the intention to 
 be implied from the circumstances existing at the time 
 of the sale and known to the purchaser, where the con- 
 tract is silent on the question." 
 
 ' See Bolton v. Bolfoti (1879) 11 Ch. D. 968; Berkshire v. Gnihh 
 (1881) 18 Ch. D. 616: Re Pcch and London School Board (1893) 2 
 Ch. 315; Re Ihnihcs and Ashley (1900) 2 Ch. 595 ; Re Hinniniihani 
 Banking Coy. v. Rosfi (1888) 38 Ch. D. 295. 
 
 2 See Broom field V. Williams (1897) 1 Ch. 602; Pollard v. Care 
 (1901) ] Ch. 834; International Tea Stores v. Hobbs (1903) 2 Ch. 165: 
 Allen V. Tavlor (1880) 16 Ch. D. 355; Wheeldon v. Biirrous (1879) 
 12 Ch. D. 3"l ; Cable v. Bryant (1908) 1 Ch. 259. 
 
 » Birminf<ham Banking Cow v. Ross (1888) 38 Ch. D. 295 ; Godwin 
 V. Schueppes (1902) 1 Ch. 926; and see Davies v. Sear (1869) 7 Eq. 
 427. 
 
 i
 
 COMPLiniON AN D CONVkVANCi:. 315 
 
 Habendum. — After tin* parcels comes ilic Imhcuduni, 
 the fiinclion of wliich is lo define or limit tlu' duration 
 or cNleni of the esiaic lo be taken b\- tin- j^'rantee. It 
 an estate in fee simjilc is to be conveyed, il must be 
 expressed to be made lo the purchaser and his heirs, or 
 to the purchaser "in fee simple";' and similarly an 
 estate lail musi be limited to a man and the heirs of his 
 bod\', or lo him "in tail." The omission of jjroper 
 words of limitation in a j^rant of freeholds will h'dw 
 the effect that onlv a life estate w ill pass to the grantee.' 
 And the same rule applies where the conveyance is made 
 to a trustee on behalf of his cestui que trust. Hui shouM 
 a purchaser, through a mistake of ihis kind, acc|uire by 
 the (N)nve\-ance a less estate than ihal to which he was 
 eniiiletl under the contract, he is entitled lo Ikuc the 
 con\'e\ance rectilied accordingh.' \\"here the land sold 
 is subject to a specified incumbrance which is to remain 
 tindischarged, such as a mf:>rtgage, restrictive covenants, 
 an easement, or a subsisting tenancv for an\' term, the 
 vendor is entitled to have the limitation in ihe con- 
 \e\ance so expressed, in order that the operation of his 
 covenant for title may not extend to the removal of such 
 incumbrance;' but he cannot insist on property being 
 conve\ed subject to covenants, conditions and restric- 
 tions not mentioned in the abstract,' or which though 
 mentioned in the abstract were not referred to in the 
 particulars or (~onditions of sale." 
 
 CV)\i:x AN rs FOR Titlk. — I^verv vendor of land, besides 
 conveving the land sold to the purchaser, is always 
 required to give the ustial covenants for title. The 
 ordinary covenants for title are for right to convey, for 
 fjuiei enjovment, for freedom from inctimbrances, and 
 for further assurance. The \-endor need not "five abso- 
 
 ' Conveyancing Act, 1881. sect. 51 
 
 -' Re F.thcl (uul Mitchells and Biitlcr (1901) 1 Ch. 945 ; h'c WJiistoii.s 
 Sctflciiu'iit. Loviitf V Williaiiisoii (1894) KCli. r^rA ; Re Iricii, (1904) 
 2 Ch. 752. 
 
 ■' Re Ethel uiul Mitchells <ni,t liiitler. siif>ni 
 
 * Diiviil V Scihin (1S9J) 1 Ch. 523; Pa^e v. MiJlmul Rlv. Cow 
 (1894) 1 Ch. 11 ; May v. Phitt (1900) 1 Ch. 616. 
 
 •■' Re Moiicktoii ami Cilzean (1884) 27 Ch. D. 555 
 
 '' Haniniaii v. Child (1885) 28 Ch. D. 712 ; Re Wallis and Barnard 
 (1899) 2 Ch. 515.
 
 •316 VKxnaRs and purchasers. 
 
 lute covenanis for ihe tiik' to the land sold,' but may 
 limit his liability to the acts or omissions of himself 
 and those claiming- by, through, under or in trust for 
 him, and of those Avho have been in possession since 
 the last conveyance for value.' The vendor's qualified 
 covenants are now ustialh- imported into the deed of 
 conveyance bv the use of the words prescribed by 
 Section 7 of the Convevancino^ Act, 1881. and they vary 
 in comprehensiveness according" to the character or 
 capacity in which the vendor conveys.' Thus, in a con- 
 veyance of freeholds made after 1881 for valuable con- 
 sideration, other than a mortgage, the covenant implied 
 on the part of a vendor who conveys as beneficial 
 owner is that, notwithstanding an}^ act or omission by 
 him or anyone through whom he derives title other- 
 wise than by purchase for value, he has full power to 
 convey the property in the manner expressed in the con- 
 veyance; that the property shall be quietly enjoved by 
 the grantee and his successors in title, freed and dis- 
 charged from estates and incumbrances other than those 
 to which the conveyance is expressly made subject; and 
 that the reasonable requirements ot the purchaser for 
 the purpose of further assuring the propety to him shall 
 be complied with.'' Where a conveyance is expressed 
 to be made by a person by direction of another who 
 directs as beneficial owner, a covenant is implied on the 
 part of the person so directing.' 
 
 ^^"here a vendor conveys as trustee, mortgagee, per- 
 sonal representative of a deceased person, committee of a 
 lunatic so found," or under an order of the Court," there 
 is implied only a covenant against incumbrances, limited 
 to things done or suffered by the person so conveying, or 
 
 ' Church V. Brou^n (1808) 15 Ves. 258. 
 
 ■■* Sugden, V. & P., 14th ed., 574, 599, 605: and see Browning v. 
 Wright (1799) 2 Bos. & P. 13, 22; Pickett v. Loggon (1807) 14 Ves. 
 215 ; Daviii v. Sabin (1893) 1 Ch. 523. 
 
 ■' See Conveyancing Act, 1881, sect. 7 ; Dnviil v. Sabin, supru. 
 
 ■* Ibid., sect. 7 (1) (A) ; David v Sabin. supra : Page v. Mid. Rly. 
 Cov. (1894) 1 Ch. 11 : Mav v. Platf (1900) 1 Ch. 616; Turner v. Moon 
 (1901) 2 Ch. 825 ; G.W.R. v. Fisher (1905) 1 Ch. 316 ; Eastu-ood v. 
 Ashton (1915) A.C. 900. 
 
 •'■ Conveyancing Act, 1881, sect. 7 (2). 
 
 6 Re Ray (1896) 1 Ch. 468. 
 
 " See Cottrell v. Cottrell (1866) 2 Eq. 330.
 
 CC^MPLl.TION AND CONAKVANCli. 317 
 
 to which lie lias been pari\- or privy.' And a trustee 
 cannot be C(jmpelled lo enter int(^ any but the usual 
 limited covenant ai^ainst incumbrances." Where a 
 tenant for life sells under his statutory powers.' or 
 trustees sell with his consent, the implied covenants 
 i^iven b}' the tenant for life are usuallv limited, as re- 
 j^ards the reversion, to his (^\vn acts, and the acts of 
 persons claiming under him;' but the mere fact that he 
 conxeys as tenant for life in exercise of a power of itself 
 confers no such protection.' Where the vendors are 
 tenants in common, the covenants on the part of each 
 are usually limited so as to apply only to their respective 
 shares. If they are joint tenants, their covenants are 
 .sometimes joint and. sometimes joint and several. '^ A 
 \endor sellino- compulsorily under the Lands C'latises 
 Consolidation Act, 1845,' does not enter into covenants 
 for title; but upon a sale of land by the promoters of 
 an undertaking the word " grant " implies the usual 
 covenants for title.* 
 
 The covenants for title implied by virtue of the Con- 
 vevancing Act, 1881, are subject to any exception, vari- 
 ation or extension expressed in the conveyance, and it 
 is important in the vendor's interest that any matter to 
 which it is not intended that the implied covenants shall 
 ex.tend be expressly mentioned and the conveyance made 
 subject thereto. ** And the object of the deed being not 
 merelv to vest the estate in the purchaser, but to express 
 in a binding and clear form all the terms of the con- 
 tract, express or implied, between the parties so far as it 
 has not been performed,'" it follows that all obligations 
 
 ' Conveyancing Act. 1881, sect. 7 U) (F). 
 
 - Worlcy V. Fnjiiipton (1846) 5 Hare. 560. 
 
 " See post, pp. 333-336. 
 
 ' See Re London Bridge Acts, ex parte ClotliieorL-ers' Cow (1842) 
 13 Sim. 176; Poulett v. Hood (1868) 5 Eq. 115: Re Saicver and liarinii 
 (1884) 53 L.J. Ch. 1104. 
 
 ' Re Tyrrell (1900) 82 L.T. 675. 
 
 « Nat. Soc. &c. V. Gihbs (1900) 2JCh. 280. 
 
 • See post. pp. 352-364. 
 
 ■^ Lands CI. Consol. .\ct, 1845. sect. 132. 
 
 •' See Page v. Mid. Rlv. Cov. (1894) 1 Ch. 11 ; May \ . Piatt (1900) 
 1 Ch. 616. 
 
 "' Re Cooper and Crondace (1904) 90 L.T. 258.
 
 318 VENDORS AND PURCHASERS. 
 
 of either part}' which will not be satisfied at the time of 
 completion should be expressly mentioned, since omis- 
 sions from the conveyance cannot be supplied bv a 
 reference to the contract/ The parties have no right to 
 look at the contract for sale either for the purpose of 
 enlargino- or diminshing- or modifying- the final contract 
 which is to be found in the deed of conveyance." 
 
 In certain circumstances, the vendor can require the 
 purchaser to enter into some covenant or covenants with 
 him by the deed of conveyance. Thus, if the property 
 sold is the subject of any covenant or contract which is 
 binding on the vendor, and under which the vendor ma\' 
 incur liability in case the purchaser fails to perform or 
 observe the covenant or contract, a purchaser who agrees 
 to buy that interest in the land which the vendor is able 
 and has contracted to convey is bound to enter into a 
 covenant protecting the vendor from the consequences 
 of any breach of such pre-existing covenant or contract;^ 
 l)ut he is entitled to have the covenant so framed that 
 its effect is limited to an adequate protection of the 
 A^endor against liability.' On this principle, where 
 land is sold subje.ct to some charge which the vendor 
 is liable to pav, as on the sale of an equity of redemption, 
 the purchaser is boimd to covenant to indemnify the 
 \'endor against liability for non-payment of the charge.^ 
 Similarly, where the land sold is subject to restrictive 
 covenants as to user, and the vendor either was himself 
 the covenantor, or has undertaken to respect the 
 covenants, he would incur liabilities in the event of 
 breaches of such covenants by the purchaser, and he is 
 therefore entitled to a covenant for his protection." But 
 where the contract for sale makes no mention that the 
 land is subject to a restrictive covenant, the purchaser 
 can insist on a conveyance according to the contract, and 
 
 ' Williams V. Morgan (1850) 15 Q.H. 782; Tcchav v. Matichesfcr, 
 /."-f., Rlv. (1883) 24 CI). D. 572 ; Grcvillc v. Hcniiiisiicay (1902) 87 L.T. 
 443. 
 
 - Lcggott V. Barrett (1880) 15 Ch. D. 309. 
 
 ' See Waring v. Ward (1802) 7 Yes. 332 ; Moxhay v. Indcru-ick 
 (1847) 1 De {;. & S. 708. 
 
 * Re Poole and Clarke (1904) 2 Ch. 173. 
 
 ■'' Waring \ . Ward, supra. 
 
 " Moxluiy V. I mhriciclc, supra.

 
 COMPLliTION AND CONVEYANCE. 319 
 
 is not bound to have such restrictive covenant inserted 
 in the conveyance, and consequently he gives no 
 covenant for indeninit\ in respect of it;' but he may be 
 liable to observe it on the ground that he took the land 
 with notice of liie restriction." 
 
 Where land haxing a common title with other land is 
 disposed of to a purchaser (other than a lessee or mort- 
 gagee) who does not hold or obtain possessicjn of the 
 documents forming the common title, such purchaser, 
 notwithstanding any stipulation to the contrary, may 
 require that a memorandum giving notice of anv provi- 
 sion containetl in the disposition !'. liiin restrictive of 
 user of, or giving rights over, an\' other land comprised 
 in the common title, shall, where practicable, be indorsed 
 on, or, where impracticable, be permanentlv annexed to 
 some one docunient selected by the purchaser but 
 retained in the possession or power of the person 
 who makes the disposition, and being (jr forming part 
 of the common title; but the title of any person omitting 
 to require an indorsement to be made or a memorandum 
 to be annexed is not affected or prejudiced b\- the 
 omission.'' This provision does not. howcx'er. applv to 
 dispositions of registered land.' 
 
 The purchaser's right to a covenant for, or an acknow- 
 ledgment of his right to production, and undertaki'ng 
 for the s£ife custody of, documents of title retained bv 
 the vendor, has al reach' been discussed.^ 
 
 ii. ASSIRAXCK OF C'OPVHOLDS. 
 
 Modi-; uv Assti^AXCE. — An assurance of copyhold 
 land on sale is iisualh- effected by a surrender of the 
 land by the vendor to the lord of the manor to the use 
 of the purchaser, followed b\' the admittance of thi^ 
 purchaser as tenant on the court rolls; such an 
 admittance is essential to transfer the legal estate in 
 
 ' See Re Monckton and Gilzean (1884) 28 Ch. D. 555; Hardwan 
 and Child (1885) 28 Ch. D. 712 ; Re Wallis and Barnard (1899) 2 Ch. 
 515. 
 
 2 Re Wallis and Barnard . supra : Re Cloag and Miller (1883) 23 
 Ch. D. 320 ; and see post , pp. 
 
 •' Conveyancing Act, 1911, sect. 11. 
 
 * Ibid., and see ante, pp. 266-272. 
 
 ' See ante, p. 238.
 
 320 VENDORS AND PURCHASERS. 
 
 ordinary cases. But a surrender is not necessary in 
 all cases. Thus, where a testator devises his copyhold 
 land; to such uses as his trustee shall appoint, or 
 where there is no devise but the trustee has merely an 
 authority to sell, the trustee can appoint the land 
 by deed to a purchaser and the lord will be bound, to 
 admit the appointee without the necessity of any mesne 
 surrender or admittance and upon payment of a single 
 tine only.^ And the same is the case where a trustee 
 in bankruptcy sells copyhold land, forming part of the 
 bankrupt's property." But if the land was devised to the 
 trustee, he must be admitted tenant on the court rolls 
 before he can confer the right to be admitted as a pur- 
 chaser.^ Upon every change in the legal tenancy upon 
 the court rolls, a fine is payable to the lord; but no fine 
 is payable on the devolution of a merely equitable 
 interest,' and such an interest is assignable by deed.' 
 A person exercising the powers of a tenant for life under 
 the Settled Land Acts, 1882 to 1890, can transfer the 
 right to admittance to copyhold to a purchaser by an 
 ordinary conveyance without surrender, and the steward 
 of the manor is compellable to enter this on the court 
 rolls, and the purchaser can thereupon claim to be 
 admitted as tenant;* and only one fine is payable, even 
 though the settlement was made bv a will containing 
 a devise of the land to trustees, provided the trustees 
 have not been admitted prior to the tenant for life's 
 conveyance.^ And where copyholds are acquired com- 
 pulsorily under the Lands Clauses Consolidation Act, 
 1845, no surrender is required.** Under the School Sites 
 Act, 1841, conveyances of copyhold land not exceeding 
 one acre in extent may be made for the purposes of the 
 Act in the form given in Section 10 of that Act. 
 
 > Glass V. Richardson (1852) 2 De G. M. & G. 658; R. v. Wilson 
 (1862) 3 B. & S. 201 ; Re Hcathcote and Rawson (1913) 108 L.T. 185. 
 2 Bankruptcy Act, 1914, sect. 48 (4). 
 " R. V. Garland (1870) 5 Q.B. 269. 
 ' Hall V. Bromley (1887) 35 Ch. D. 642. 
 •' See Scriven on Copyholds, 7th ed. 116. 
 6 Settled Lands Act, 1882, sect. 20. 
 ' Re Naylor and Spcndla (1886) 34 Ch. D. 217. 
 Lands CI. Consol. Act, 1845, sect. 95 ; and see post . pp. 352-364.
 
 COMPLKTION AND CON VliVANCi:. 321 
 
 CovKNAN'TS FOR TiTLK. — Covenants for title cannot he 
 included or implied in a surrender, or entercti on the 
 court rolls, and it is usual to have a separate deed con- 
 taininii' them expressly or impliedh' ; and such a deed 
 may be executed before or after the surrender. L'sually 
 the deed takes the form of a covenant to surrender, 
 in which case the statutory covenants for title may be 
 imported into it.' If the covenants for title are contained 
 in a deed executed after the surrender, thev must be 
 inserted in tlicir full form, since the statute' does not 
 then apply.'- 
 
 iii. — Assukancf: of I.easi^holds. 
 
 Modi-: of Asstraxck. — An assurance of leaseholds 
 does not differ much from an assurance of freeholds, 
 but there are necessarily certain essential dififerences. 
 Practically all the negotiations previous to completion 
 follow the ordinary course, except that the purchaser is 
 precluded from calling- in question certain matters of 
 title. ^ By the joint effect of the Statute of Frauds'" and 
 the Real Property Act, 1845," an assurance of leaseholds 
 must be by deed, even though the term does not exceed 
 three years. 
 
 Recitals. — It is usual to recite the lease and devolu- 
 tion of title to the vendor; but where there have been 
 numerous dealings with the property since the granting 
 of the lease, the intermediate dealings are recited 
 generally, and onh' the ultimate assurance to the vendor 
 is particularly set otit. 
 
 Parcels. — It is usual to describe the propertv as " all 
 and singular the hereditaments and premises comprised 
 in and demised by the said lease," or to repeat the de- 
 scription as employed in the lease. 
 
 Covenants for Title. — On an assurance of lease- 
 holds for valuable consideration (other^vise than by way 
 
 * See Conveyancing Act, 1881, sect. 2 (v). 
 
 - Conv. Act, 1881. 
 
 •' Ibid., sect. 2 (v). 
 
 ^ See ante, p. 245. 
 
 •' Sect. 3. 
 
 6 Sect. 3. 
 
 21
 
 322 VENDORS AND PURCHASERS. 
 
 of mortgage), the same covenants for title are implied 
 by a person who conveys and is expressed to convey 
 as benelicial owner as in the case of freeholds/ with an 
 additional covenant that the lease is valid and subsisting 
 and that all rent has been paid and all covenants have 
 been performed at the time of conveyance.^ Where the 
 conveyance is made by the vendor as settlor, or as 
 trustee, mortgagee, personal representative of a deceased 
 person, committee of a lunatic so found, or under an 
 order of the court, the same statutory covenants are 
 implied as in a similar conveyance of freeholds.^ 
 
 Covenants by Purchaser. — Where the vendor will 
 remain liable for the payment of rent or the performance 
 of covenants under the lease, the purchaser must 
 covenant to perform and observe the lessee's covenants 
 and to indemnify the vendor againt liability in respect 
 of any future omission or breach.* 
 
 Sale in Lots. — Where leasehold property is sold in 
 lots, the sale is usually effected by an assignment of the 
 whole to one of the purchasers on trust to grant under- 
 leases to the others; and trustees with a power of sale 
 may adopt this method.* 
 
 Section 3 — Completion. 
 
 Execution of Conveyance. — Since January 1st, 1882, 
 the purchaser is not entitled to require that the con- 
 veyance to him shall be executed in his presence or in 
 that of his solicitor; but he is entitled, at his own cost, 
 to have the execution of the conveyance attested by some 
 person appointed, by him, who may, if he thinks fit, 
 be his solicitor.*^ As a rule, the purchaser can require 
 the conveyance to be executed by the vendor and all 
 necessarv parties in person, and cannot be required to 
 accept execution on behalf of any necessary party by 
 attorney, except where circumstances make this course 
 
 ' See ante, pp. 315-319. 
 
 2 Conveyancing Act, 1881, sect. 7 (1) (B). 
 
 » See ante, pp. 316, 317. " Sec post, pp. 329-331. 
 
 5 See Re Jiidd and Poland and Skelcher (1906) 1 Ch. 684, over- 
 ruling Re Walker and Oakshott (1901) 2 Ch. 383. 
 
 ^ Conveyancing Act, 1881, sect. 8; and see Vincy v. Chaplin (1858) 
 2 De G. & J. 468 ; Essex v. Daniell (1875) 10 C.P. 538 ; and see Land 
 Transfer Act. 1897, sect. 9 (1).

 
 COMPLETION AND CONVEYANCE. 323 
 
 absolutely necessary ;' and in this latter case, the pur- 
 chaser should be satisfied that the power of attorney has 
 not been revoked, or that it is valicl in favour of the pur- 
 chaser notwithstanding- any matter which would operate 
 to revoke it.^ Execution by the purchaser is necessary 
 where the conveyance contains any covenants by him 
 or reservations of easements to the vendor ; though after 
 the purchaser has accepted the benefit of the convey- 
 ance, his non-execution will not prevent the vendor and 
 persons claiming under or through him from enforcing 
 their rights.' 
 
 Payment of Purchase-Money and Receipt. — As a 
 rule payment of money due should be made to the per- 
 son to \vhom it is due; payment to his solicitor or other 
 agent is no discharge of the debt, unless such solicitor 
 or agent is expressh- or impliedly authorised to receive 
 it." But, on the completion of sales of land, where 
 a vendor has executed a deed having- in the body thereof 
 or indorsed thereon a receipt for the purchase-money, 
 and the deed is produced by the vendor's solicitor, the 
 deed is sufficient authority to the purchaser to pay or 
 give the purchase-monev to the solicitor, without the 
 solicitor producing any separate or other direction or 
 authority for the purpose from the vendor."^ The 
 solicitor must be the solicitor acting for the vendor in 
 the transaction, and he must actually produce the deed; 
 the fact that the deed is under his control is in itself 
 insufficient. "^ The payment to the solicitor must be made 
 in cash, unless the solicitor is authorised to receive pa}'- 
 ment bv cheque.^ 
 
 \ 
 
 1 Mitchel V. Neale (1755) 2 Ves. Sen. 679; Noel v. Weston (1821) 
 Madd. & G. 50. 
 
 - See Conveyancing Act, 1881, sect. 47 : Trustee Act, 1893, sect. 23. 
 
 •'• See Doiiglaf; v. Lock (1835) 2 Ad. & El. 705 : Promi v. Bates (1865) 
 11 Jur. (N.S') 441 ; Willson v. Leonard (1840) 3 Beav. 373; May v. 
 Belleville (1905) 2 Ch. 605. 
 
 * Viney v. Chaplin (1858) 2 De G. & J. 468 ; Ex parte Swinbanks 
 (1879) 11 Ch. D. 525. 
 
 ■^ Conveyancing Act, 1881, sect. 56. 
 
 6 Day V. WooluHch Rqiiit. Blclti. Socy. (ISSS) 40 Ch. D. 491 : but 
 see King v. Smith (1900) 2 Ch. 425. 
 
 ■ See Clarke v. King (1826) 2 C. & P. 286 : Bluinberg v. Life 
 Interests, &c., Corpn. (1897) 1 Ch. 171 ; (1898) 1 Ch. 27; Johnson v. 
 Boyes (1899) 2 Ch. 73.
 
 324 VENDORS AND PURCHASERS. 
 
 Section 56 of the Conveyancing Act, 1881, does not 
 apply to sales by trustees, so that until this section was 
 extended to such cases by the Trustee Act, 1888, Section 
 2, replaced by the Trustee Act, 1893, Section 17, a pur- 
 chaser might decline to pay the purchase-money to the 
 trustees' solicitor, as it would in general be a breach of 
 trust for trustees to allow their solicitor to receive such 
 payment on their behalf/ But now a trustee or trustees 
 may appoint a solicitor to receive payment of the pur- 
 chase-money, and to give a discharge for the same, by 
 permitting the solicitor to have the custody of and to 
 produce a deed containing an}" such receipt as is referred 
 to in Section 56 of the Conveyancing Act, 1881 ;' and a 
 purchaser is not concerned to inquire whether the soli- 
 citor has in fact been appointed to receive the purchase- 
 money unless there are suspicious circumstances.'' But, 
 for this purpose, a deed executed by an attorney for the 
 trustees is not sufficient.* 
 
 If the receipt appears in the body of the deed, no en- 
 dorsed receipt is necessary,^ and a receipt either in the 
 bod}' of the deed or endorsed thereon is sufficient evi- 
 dence of payment in favour of a subsequent purchaser 
 not having notice that payment was not in fact made;" 
 and such a receipt creates an estoppel in favour of a 
 purchaser against a vendor whose agent misappro- 
 priates the purchase-money.^ Absence of a receipt is 
 sufficient to put a subsequent purchaser upon inquiry as 
 to whether the original purchaser paid the purchase- 
 money.^ 
 
 Where there are incumbrances upon the property sold 
 which are discharged out of the purchase-money, the 
 
 ' Re Bellamy and Mctrop. Board of Works (1883) 24 Ch. D. 387- 
 Re Hefliiig and Merton (1893) 3 Ch. 269. 
 
 2 Trustee Act, 1893, sect. 17. 
 
 * Re Hetling and Merton, supra ; Kint^ v. Siiiifli (1900) 2 Ch. 425. 
 
 ^ Re HetUnti and Merton. supra; and see 7?t' SJieppard (1911) 1 
 Ch. 50. 
 
 •' Conveyancing Act, 1881, sect. 54. 
 
 ^ Ibid., sect. 55. 
 
 " See Hunter v. Walters (1871) 7 Ch. App. 85 ; Bickcrton v. Walker 
 (1885) 31 Ch. D. 151 ; Bateman v. Hunt (1904) 2 K.B. 530. 
 
 '^ Grcenslade v. Dare (1855) 20 Beav. 284 ; Kennedy v. Green (1834) 
 3 My. & K. 699.

 
 (•().Mi'M:ri()\ AM) coNxicvwcic. 325 
 
 purchast'i' must pay the proper amounts to the incum- 
 brancers direct, and only pay the balance to the vendor. 
 Where there are several mortgagees who are expressed 
 (in a mortgage executed since IScSl) to have iidvaiiced 
 the mortgage money (jn a joint acc(junt, or j(jintly, the 
 receipt in writing of the survivors or last survivor of 
 them, or of the personal representatives of the last sur- 
 vivor, is a complete discharge for any money thu- under 
 the mortgage.' And the written receipt of a mortgagee 
 is a suiticient discharge for any money arising on a sale 
 under the mortgagee's statutory power, and a person 
 paying the same to the mortgagee is not ccjncerned to 
 inquire whether any money remains due on the mort- 
 gage.' Where the mortgagees are trustees, but the 
 existence of the trust is not disclosed, the Court will not 
 go behind a recital that the money is advanced on a joint 
 account, and a purchaser need not concern himself with 
 the trusts.' Hut where the trust is disclosed, the pur- 
 chaser must satisfy himself that he will get a valid re- 
 ceipt from the trustee mortgagees.' 
 
 A written receipt by a trustee for money j^ayable to him 
 under any trust or power is a sufficient discharge, and 
 the purchaser is not required to see to the appli- 
 cation of the purchase-money.^ All trustees who have 
 not disclaimed the trust or retired from it ought to join." 
 Where they are unable to give a discharge for the 
 money, it may be paid into Court,' or if the amount be 
 under i'oOO, into a I'ost Office Savings Bank."* As a 
 rule, a surviving trustee mav exercise the powers of the 
 trustees, and accordingly may give a valid receipt;® but 
 A\here trustees are appointed bv the Court to receive 
 
 ' Conveyancing Act, 1881, sect. 61. 
 
 - Ihiil . sect. 22 (1) : and see Hockey v. Western (1898) 78 L.T. 1 
 
 ■^ Re Haniuin and Uxhridf^e, &c., RIy. Coy. (1883) 24 Ch. D. 720. 
 
 * Re Rlaiher^ and Abrahams (1899) 2 Ch. 340. 
 
 •■' Trustee Act, 1893, sect. 20 (1). 
 
 « Lee V. Sankcv (1873) 15 Rq. 204; Hall v. Franck (1849) 11 Heav. 
 519; Locke v. Lomas (1852) 5 DeC. & Sm. 326; Hope v. Liddcll (1855) 
 21 Beav. 183. 
 
 ' Trustee Act, 1893, sect. 42 ; Cox v. Cox (1855) 1 K. (S: J. 251 . 
 
 " County Courts .\ct, 1888, sect. 70. 
 
 •' Trustee .\ct, 1893, sect. 22.
 
 326 
 
 VENDORS AND PURCHASERS. 
 
 the purchase-money arising on a sale out of Court, the 
 purchaser should not pay the purchase-money to the 
 surviving trustee, but should pay it into Court.' 
 
 Adjustment of Accounts. — The subjects of compen- 
 sation for misdescription,^ apportionment or rents and 
 profits and outgoings,' and the handing over of title 
 deeds on completion,'' have already been discussed. 
 
 Section 4 — Stamps. 
 
 Rates of Stamp Duty. — A conveyance on 
 be stamped at the following rates of duty : — ' 
 
 Where the amount or value of the considera- 
 tion for the sale does not exceed £5 ... 
 Exceeds £5 and does not exceed £10 
 
 £10 
 
 £15 
 
 £20 
 
 £25 
 
 £50 
 
 £75 
 
 £100 
 
 £125 
 
 £150 
 
 £175 
 
 £200 
 
 £225 
 
 £250 
 
 £275 
 
 £300 
 
 £15 
 
 £20 
 
 £25 
 
 £50 
 
 £75 
 
 £100 
 
 £125 
 
 £150 
 
 £175 
 
 £200 
 
 £225 
 
 £250 
 
 £275 
 
 £300 
 
 sale,' 
 
 must 
 
 c 
 
 
 £ s. 
 
 d. 
 
 1 
 
 
 
 2 
 
 
 
 3 
 
 
 
 4 
 
 
 
 5 
 
 
 
 10 
 
 
 
 15 
 
 
 
 1 
 
 
 
 1 5 
 
 
 
 1 10 
 
 
 
 1 15 
 
 
 
 2 
 
 
 
 2 5 
 
 
 
 2 10 
 
 
 
 2 15 
 
 
 
 a 
 
 
 
 10 
 
 
 
 For every £50, and also for any fractional 
 part of £50, of such amount or value ... 
 
 If, however, the amount or value of the consideration 
 for the sale does not exceed £500, and the instrument 
 contains a statement certifying that the transaction there- 
 by effected does not form part of a larger transaction, or 
 of a series of transactions, the aggregate value of which 
 exceeds £500, the diit\- will be only half the dut}' stated 
 above. ^ 
 
 ' It would be contrary to the usual practice of the court to do 
 Otherwise. 
 
 2 See cinfc. pp. 231-235. •' See ante, pp. 235-237. 
 
 " See ante, p. 238. '• See infra, p. 327. 
 
 '^ Stamp Act, 1891, sched. 1 ; amended by I'inance (1900-10) Act, 
 1910, sect. 73. 
 
 ' Finance (1909-10) Act, 1910, sect. 73.
 
 CO.MPI.KTIOX AND (( )N\■|•:^ AXCK, -VJT 
 
 .Mi:ANIN(i OF " L'ONVKYANCE ON SaLK." — A " ((Jlivev- 
 
 aiict* on sale " includes every instrunieni and every de- 
 cree or ortler of anv Court, or of any commissioners, 
 wherebv an\- propert\' and any estate or interest in any 
 property, upon the sale thereof is transferred to or vested 
 in a purchaser, or an\- other person on his behalf or by 
 his direction.' 
 
 CnNVKVAXCK OF Si:i'AKATK PaRCKLS BY DlFFFKi:XT 
 
 Dkkds. — Where property contracted to be sold for one 
 consideration is conveyed to the purchaser in separate 
 parcels b\' different instruments, the consideration is 
 apportionable as the parties think iit; but a distinct con- 
 sideration for each separate part must be set forth in 
 each instrument, and tiie dutv must be paid in respect 
 of each convexance accordingly.' Where the contract 
 is for sale at one consideration to two or more persons 
 jointl}-, or to a person purchasing on' behalf of several, 
 and tile property is conveyed in separate parcels and for 
 distinct considerations to the .several persons interested, 
 each conveyance is chargeable in respect of the part of 
 the consideration therein specified.' 
 
 C()xvf:vancf to Sub-Purchasf:r. — Where a convey- 
 ance is made direct to a sub-purchaser, the duty payable 
 is calculated in respect of the purchase-money paid by 
 the sub-purchaser.' The .same rule applies where ther-'^ 
 are several sub-purchasers, no regard being paid to the 
 value of the original consideration.^ 
 
 SeCTIOX 5 RkGISTR.\TION, ExROLMFXr AXn XOTICFS. 
 
 Registration'. — Whenever the land .sold is situate in 
 the counties of Middlesex or Yorkshire, or in the Bed- 
 ford Level district, a memorial of the convevance should 
 be registered as soon as po.ssible after execution."^ The 
 registration of title under the Land Transfer Acts, 187-') 
 and 1807, has already been discu.ssed.' 
 
 ^ Stamp Act. 1891, sect. 54; and see Finance (1900-10) .\ct, 1910, 
 sect. 6. 
 
 ■■^ Stamp Act. 1891. sect. 58 (1) ; see Finance (1909-10) Act, 1910. 
 sect. 73. 
 
 '■' Stamp .Act, 1891. sect. 58 (J). 
 
 ' Ibid., sect. 58 (4). •'■ fhid.. sect. 58 (5). 
 
 ^ Middlese.x Registry .\ct, 1708, sect. 1 ; Land Registry (Middlesex 
 Deeds) .'\ct, 1891, sect.' 1 ; Yorksliire Registries .Act, 1884, sects. 3. 4; 
 Bedford Le\el .\ct, 1663. • See f7;/^f, pp. 2667272.
 
 ^28 VENDORS AND PURCHASERS. 
 
 Enrolment. — Assurances of land in favour of chari- 
 ties must be made by deed executed in the presence of 
 at least two witnesses, and must be enrolled within six 
 months of execution in the Central Office/ The Court 
 may order the enrolment of certain assurances notwith- 
 standing that they have not been enrolled within the 
 requisite time, if satisfied that the omission to enrol the 
 deed in proper time has arisen from ignorance or inad- 
 vertence, or through destruction or loss of the deed b}' 
 time or accident." Assurances for certain purposes, and 
 to certain universities, colleges, and societies, are, how- 
 ever, exempted from these provisions.^ Where the ven- 
 dor of freehold is a tenant in tail, and it is intended to bar 
 the entail and pass an estate in fee simple, the assurance 
 must be enrolled by either vendor or purchaser within six 
 months after execution by the vendor, in the Central 
 Office;^ and a deed barring an estate tail in copyhold 
 must be entered on the court rolls of the manoi-* within 
 the same period." 
 
 Notices. — On the purchase of an equitable estate In 
 land, notice of the transaction should always be given 
 to the persons in whom the legal estate is vested, especi- 
 ally if thev are mortgagees, in order to prevent further 
 advances being made by them to the mortgagor which 
 might be valid as against the purchaser. 
 
 Section 6 — Rectification and Restitution. 
 
 Rectification of Conveyance. — The power of the 
 Court to rectify a deed of conveyance on the ground of 
 mistake, so as to make it conform to the real agreement 
 between the parties, has already been discussed/ 
 
 Restitution. — Where there has been mistake in a 
 substantial and material matter going to the root of 
 the contract, or fraud or misrepresentation amounting to 
 fraud, on the part of one of the parties, and the parties 
 
 ' See Mortmain and Charitable Uses Act, 1888, sect. 4. 
 
 ^ Ihid., sect. 5. 
 
 •^ Ibid., sects. 6 and 7. 
 
 ^ Fines and Reco\eries Act, 1S33, sect. 41. 
 
 ■' Ibid., sects. 50, 54. 
 
 * See ante, p. 63, and, <;enerallj', pp. 61-69.
 
 I 
 
 COMPLETION AND CONVEYANCE. 329 
 
 fan be restored suhsianiiall}- lo their orijj^inal jxjsition.s. 
 the Court will, in a proper rase, order a reconveyance 
 of the propert\- to the \endor and restoration of the pur- 
 chase-money to the purchaser, with all necessary adjust- 
 ment of accotints.' 
 
 Section T — Ric;hts and Obligations of Parties as tc> 
 covknants. 
 
 Covi:.\ANTs RuxNixci WITH nil-: Land. — Covenants 
 touching or concerning land, if entered into with a per- 
 son having an estate therein, are said to run with the 
 land, i.e., the benefit of them passes to every successive 
 transferee of the land, provided that he is in the 
 same estate as the original covenantee." Covenants for 
 title, and covenants to indemnify land against charges 
 on it, are instances of covenants of this kind. It is not 
 necessary, in order to make the benefit of a covenant 
 run with the land, that the word " assigns" or even 
 " heirs " should be used.' At law, the burden of a 
 covenant between vendor and purchaser as to the user, 
 etc., of land, unless operating as a grant of an easement 
 or rent or other estate in the land.' never runs A\ith th" 
 land so as to affect a purchaser from tJie e-o\-enantor.' 
 Such a covenant is, ne\'ertheless, valid and binding for 
 all time against the covenantor personally, whether an 
 individual or a corporation, and as against the estate of 
 the covenantor after his death." It is enforceable so long 
 as the covenantor retains the land to which the covenant 
 relates, by an action for specific performance, and after 
 he has parted with the land it sounds in damages. In 
 equity, however, a restrictive covenant, i.e-, one of a 
 negative or prohibitive character such as against build- 
 ing on the land or carrying on objectionable trades, etc., 
 as distinguished from affirmative covenants, such as 
 to erect or mainlain buildings, will hv binding on a 
 
 ' See, generally, ante, pp. 63, 70-78. 
 
 ■^ Spencer'.-; Case (1582) 1 Sm. L.C. 22. 
 
 •' Conveyancing Act, 1881, sect. 58. 
 
 ■* See Rowhotluini \. \V'(7.so/i, 8 H.L.C. 348. 
 
 « Austerberry v. Oldluuii Coi-pn. (1885) 29 Ch. D. 750. 
 
 « S.E. Rly. Coy. v. Assoc. Portland Cement Coy. (1910) 1 Ch. 12.
 
 330 VENDORS AND PURCHASERS, 
 
 purchaser, including a lessee,^ taking with notice,^ other- 
 wise than through a purchaser for value without notice;" 
 and such notice may be constructive only, and will be 
 implied against a purchaser who neglects to make or 
 debars himself by the contract from making the usual 
 examination of title, which, if made, would have brought 
 the restriction to light/ A scjuatter, however, and per- 
 sons claiming under him, is bound by a restrictive 
 covenant of which he has no notice.' 
 
 Injunction against Breach. — As regards such 
 restrictive or negative covenants, equity will interfere by 
 injunction against the original covenantor, or any per- 
 son claiming under him, either as a volunteer or as pur- 
 chaser for valuable consideration with notice of the 
 covenant, to restrain him from doing any act which 
 would be a breach of the covenant.*^ 
 
 Application of Rule in Tidk v. Moxhay.— 
 Restrictive covenants are generally intended to prevent 
 some adjoining land belonging to the covenantee from 
 being depreciated by the acts prohibited. If the 
 covenantee afterwards conveys to another the whole or 
 part of the adjoining land, the benefit of the covenant 
 will pass in equity to thq grantee if it appears from the 
 deed of conveyance or can be implied from the cir- 
 cumstances of the case, that it was the intention of the 
 parties that the benefit should so pass, but not other- 
 wise.' And such an intention will more readily be pre- 
 sumed where the sale comprises the whole of the land 
 than where it comprises a part only.* 
 
 1 Hollou-ay v. Hill (1902) 2 Ch. 612. 
 
 2 Tulk V. Moxhay (1848) 2 Ph. 774. 
 
 ••* Walker v. Spooncr (1911) 2 K.B. 473. 
 
 •■ Patman v. Harland (1881) 17 Cb. D. Z5i: Nottimllunii Brick Coy, 
 V. Butler (1886) 16 Q.B.D. 778 ; Re Cox and Neve (1S91) 2 Ch. 109. 
 
 '' Re Nisheff and Potts (1906) 1 Ch. 386. 
 
 6 See Tulk v. Moxhay (1848) 2 I'h. 774 ; Cafo \ . Thompson (1882) 
 9 Q.B.D. 618. 
 
 ' Renals v. Cowlishaw (1879) 11 Ch. D. 866; Rogers v. Hoscgood 
 (1900) W.N. 157; Elliston v. Readier (1908) 2 Ch. 374; Reid v. 
 Bickerstaff (1909) 2 Ch. 305. 
 
 " Keatcs v. Lyon (1869) 4 Ch. 218.
 
 COMPLETION AND C ()N\ i;VAN( IC. 'hU 
 
 Building Schlmk. — W'herr there is a building scheme 
 tor tlie sale of an estate in lots accordino- to some defined 
 plan, and it is part of the arrangement that the pur- 
 chasers shall enter into restrictive covenants for their 
 benefit, in such case, the covenants, though expressed to 
 be entered into with the vendor only, will be mutually 
 enforceable in ecjuity by and against all persons who 
 come in as purchasers under tlie scheme.' Whether 
 there is a building scheme intended to be binding on 
 all purchasers inter se, is a question of fact depending 
 on the particulars and conditions of sale, and the other 
 circumstances of the case, and it is a material circum- 
 stance that the sale comprises the whole of the vendor's 
 estate in the particular place. If a part of the property 
 is not included in the sale, the prima facie inference would 
 be that the covenants are for the protection of the vendor 
 in respect of the retained land.^ If a vendor shows an 
 intending purchaser a plan of a building estate show- 
 ing plots with houses marked on them, and the agree- 
 ment with regard to a plot of land purchased by the 
 purchaser is on a printed form and contains restrictive 
 stipulations, the purchaser is not entitled to assume that 
 the whole estate is governed by a building scheme, and 
 that the other plots shall be built upon strictly in accord- 
 ance with the plan and subject to the same stipulations.' 
 
 ' Collins V. Castle (1887) 36 Ch. D. 243: Mackenzie v. Cliihlers 
 (1890) 43 Ch. D. 265. 
 
 ■^ Nottingham Brick- Coy. v. Butler (1886) 16 Ci H.D. 778 : Collins v. 
 Castle, supra ; Re Birniin^haui Land Cov irml Altilav (1893) 1 Ch. 
 342. 
 
 ■■' Tucker V. Vou-les (1893) 1 Ch. 195; and see /iVt;v// \ . Reniin!<ton 
 (1892) 3 Ch. 148.
 
 PART IV. 
 SALES UNDER SPECIAL POWERS. 
 
 CHAPTER L 
 
 SALES BY FlDLe lARV VENDORS. 
 
 Sr:rTU)N 1 — S.\li:s lndkr the SiiiiLEu Land Acts, 
 LS82 TO 1890. 
 
 Pkinciplk ok Seitleo Land Acts. — The paramount 
 t)bject of the legislature in passing the Settled Land Acts 
 was the well-being" of settled land,' and for this purpose, 
 limited owners' are theireby enabled to sell greater 
 interests in such lands than they themselves hold. For 
 tiie purpose of the Acts a " settlement " means any 
 instrument 1)\ \iriuo of which any land, or any estate 
 t)r interest in land, stands for the time being" limited to 
 or in trust for any persons by wa\- of succession.^ And 
 u " tenant for life " is defined as the person who is for 
 the time being, imder such a settlement, beneficially 
 entitled to possession of the settled land for his life.' 
 
 Powers of Tenant for Life. — A person who is a 
 tenant for life as defined in the Act of 1882, or who, by 
 Section 58 of the Act, has the powers of such a tenant for 
 life, may sell the settled land or any part thereof, or any 
 easement, right, (^r privilege of an\- kind, over or in 
 relation to the same;" and where the settlement com- 
 prises a manor may sell the seignorv of anv freehold 
 land within the manor, or the freehold and inheritance 
 of an\- copyhold or customary land, parcel of the manor, 
 with or without any exception or reservation of all or 
 any mines or minerals or of an\ rights or powers relative 
 
 ' I .(.., land, and any estate or interest therein, which is the subject of 
 a settlement ; see S.L A., ISSJ, sect. 2 (3) : Bruce v. Miirquis of 
 Ailcsbiiiy (1S92) A.C. 564. per Lord Macnaghten. 
 
 - I.e., tenants for life within the nneaninj; of the Acts and the persons 
 haxing, for the purposes of the Acts, the powers of a tenant for life : see 
 S.L. A.. 1SS2, sect. 2 (5), and sect. 5S. 
 
 •'' S.L.A., 1SS2, sect. 2 (1) : see Re Miimiy atui Roper (1S99) 1 Ch. 
 275 : Re Marsluill (1905) 1 Ch. 325 
 
 * S.L. A.. 1SS2. sect. 2 (5). 
 
 - S.L.A., 1SS2, sect. 3 (1).
 
 334 VENDORS AND PURCHASERS. 
 
 to mining purposes, so as in every case to effect an 
 enfranchisement/ He has also a general power to con- 
 tract to make any such sale, and the contract will be 
 binding on and enforceable against and by every suc- 
 cessor in title for the time being of the tenant for life." 
 
 Conditions of Sale. — The sale must be for the best 
 price that can reasonably be obtained,^ and regard must 
 be had to the pecuniary and other interests of all parties 
 under the settlement/ In relation to the exercise of any 
 powers by him, the tenant for life is deemed to be in the 
 position and to have the duties and responsibilities 
 of a trustee for all other parties entitled under 
 the settlement, so that he cannot enter into an 
 agreement to sell at a valuation/ but any person 
 dealing in good faith with a tenant for life is taken, as 
 against all parties entitled under the settlement, to have 
 given the best price that could reasonably be obtained by 
 the tenant for life and is not bound to inquiri. whether 
 any valuation has been made by or on behalf of the 
 tenant for life/ The sale may be by public auction or 
 by private treaty and in one or in several lots. If it be 
 made bv auction, the tenant for life may fix the reserve 
 price and may bid. The land may be sold subject to any 
 stipulations as to title or evidence of title, or other 
 things, and any restriction as to building or user or as 
 to the mines and minerals may be imposed/ The princi- 
 pal mansion house and the pleasure grounds and park 
 and lands (if any) usually occupied therewith may not. 
 however, be sold without the consent of the trustees of 
 the settlement or an order of the Court; a house usuallv 
 occupied as a farmhouse or a house which does not cover, 
 with its pleasure grounds, twenty-five acres, is not a 
 principal mansion house within this provision/ The 
 
 • S.L.A., 1882, sect. 3 (2). '^ Ibid., sect. 31. 
 
 =' Ibid., sect. 4 (1). 
 
 ■• Ibid., sect. 53; Re Marcjiiis of Ailcsburv (1892) 1 Ch. 506; Re 
 Hope (1899) 2 Ch. 679. 
 
 '' Ibid., sect. 53; Pctey.s v. Lewes and East Grinstcad Rlv. Cov. 
 (1880) 16 Ch. D. 702 ; (1881) 18 Ch. D. 429. 
 
 8 S.L.A., 1882, sect. 54 ; Hun-ell v. Littlejohn (1904) 1 Ch. 689. 
 
 ^ S.L.A.. 1882, sect. 4. 
 
 " S.L.A., 1890, sect. 10 ; and see Pease v. Courtney (1904) 2 Ch. 503 ; 
 •Gilbey v. Rush (1906) 1 Ch. 11.
 
 SALES BY FIDLCIARV VENDORS. 335 
 
 surface and inint'ials may be sold seiDarately ;' and it tlic 
 settlement comprises an undivided share of land, or if 
 the settled land is held in undivided shares, the tenant 
 for life of an undivided share may join or concur with 
 any person havint;- power to dispose of another undivided 
 share, though he may sell the undivided share of which 
 he is tenant for life alone." 
 
 Exercise of Powers. — Before exercising- his powers, 
 the tenant for life must give not less than one month's 
 notice' by registered letter of his intention to make a 
 sale to each of the trustees of the settlement and also to 
 the solicitor for the trustees if known to him.' A pur- 
 chaser dealing in good faith with the tenant for Iffe is 
 not, however, concerned to inquire whether such notice 
 has been given ; but where he knows that the notice has 
 not been given, he may be implicated in the breach of 
 irust b\' the tenant for life and be liable to the remainder- 
 men according!}-, even though the transaction could not 
 be set aside.* The tenant for life cannot contract not to 
 exercise of any of his statutory powers;"^ nor can he be 
 restrained from exercising them by any prohibition, or 
 any provision tending to induce him not to exercise 
 them, contained in the settlement.' 
 
 Effect of Cox\i:vaxce. — A conveyance by the tenant 
 for life will convey the land sold for the estate or interest 
 the subject of the settlement and pass or create any ease- 
 ments or other rights, discharged from all the limita- 
 tions, powers and provisions of the settlement, and from 
 all estates, interests, and charges subsisting or to arise 
 thereunder, but subject to and with the exception of 
 (a) all estates, interests, and charges having priority to 
 the settlement; and (b) all such other (if anv) estates, 
 interests, and charges as have been conveyed or created 
 for securing money actually raised at the date of the 
 
 ' S.L.A.. 1882, sect. 17. 
 
 '^ Ibid., sect. 19 : Cooper v. Belscy (1899) 1 CIi. 639. 
 
 ■' See Murlboroiii^li v. Sarforis (1886) 32 Cli. D. 616, 621. 
 
 * S.L.A., 1882, sect. 45 (1). 
 
 * Ibid., sect. [45 (3) ; and see Mogridge v. Clap (1892) 3 Ch. 382 ; 
 Hatten v. Ru.'i.-icll (1888) 38 Ch. D. 334 ; Re Fisher and Grazcbrook 
 (1898) 2 Ch. 660. 
 
 6 S.L.A.. 1882, sect. 50 (2). 
 
 ' Ibid., sect. 51.
 
 •j36 vendors and purchasers. 
 
 deed;^ and (c) all leases and grants at fee farm rents or 
 otherwise and all grants of easements, rights of common, 
 or other rights or privileges granted or made for value in 
 monev or money's worth, or agreed so to be, before the 
 date of the deed, by the tenant for life or by any of his 
 predecessors in title, or by any trustees for him or 
 them, under the settlement, or under any statutory 
 power, or being otherwise binding on the successors in 
 title of the tenant for life.' 
 
 Section 2 — Sales by Trustees. 
 
 General Powers. — The capacity of trustees to sell 
 land which is vested in them in their fiduciary capacity 
 is limited by the deed, will, or other document to which 
 they owe their position ; such a deed, will, or other docu- 
 ment may either contain a trust for sale of the land to 
 which it relates, or it may expressly or impliedly confer 
 upon the trustees a power to sell such land. A trustee 
 for sale is bound to sell the land under every possible 
 advantage to those for whom he acts as trustee^ and with 
 a fair and impartial attention to the interests of such 
 parties ;'' otherwise he will be personally responsible 
 for the loss sustained by any suffering party." But if 
 a trustee has once contracted to sell bond fide, the Court 
 will not allow the contract to be invalidated because 
 another person is willing and ready to give a higher 
 price. "^ It frequently happens that the beneficiaries, who 
 are the persons most interested in the matter, and who 
 have the strongest motives for obtaining the highest 
 possible price, enter into a conditional contract, and then 
 obtain the consent of the trustee, who, when he has satis- 
 fied himself that the sum proposed is the value of the 
 
 ' See Re Mundy and Roper (1899) 1 Ch. 275 ; Re Keck and Hart 
 (1898) 1 Ch. 617; Re Marquis of Ailesbury and Iveagh (1893) 2 Ch. 
 345 ; Re Du Cane and Ncttlefold (1898) 2 Ch. 96. 
 
 ''' S.L.A., 1882, sect. 20. 
 
 ^ Downes v. Grazebrook (1817) 3 Mer. 208 ; Ortuc v. Wrii<ht (1838) 3 
 Jur. 19. 
 
 * Ord V. Noel (1820) 5 Mad. 440. 
 
 •' Ibid.; Tomlin v. Luce (1887) 41 Ch. D. 573 ; (1889) 43 Ch. D. 191 ; 
 Pcchel V. Fowler, 2 Anst. 550 ; Oliver v. Court (1820) 8 Price, 166. . 
 
 6 Harper v. Hayes (1860) 2 Giff. 210 ; 2 De G.F. & J. 542 ; Sclby v. 
 Bowie, 4 Gift. 300.
 
 SALES BY FIDUCIARY VENDORS. 337 
 
 propei't}', sanctions a sale wliich is hrnclicial to the beiie- 
 rtciaries.' The trustee for sale must inform himself of 
 the real value of the property, and for that purpose 
 should, if necessary, employ some experienced person to 
 furnish him with an estimate." To sell the proj)ert\' at a 
 <4"rossl\- inadecjuate value is a breach of trust which may 
 affect the title in the hands of the purchaser.' 
 
 TiMi-: FOR Saij:. — Trustees are allowed a reasonable 
 time for selling an estate. A direction contained in the 
 trust instrument that the estate should be sold " with 
 all convenient speed " does not render an immediate 
 sale imperative ;' but if the sale is to take place " at such 
 time and in such manner as the trustees shall think fit,'* 
 the trustees are not authorised, as between ihem and 
 their beneficiaries, to postpone the sale indefinitely.' If 
 the sale is postponed for a considerable period, without 
 iS^ood cause, the trustees will be answerable for deprecia- 
 tion." If the trustees are to sell " with all convenient 
 speed and within five years," the proviso as to the five 
 years is considered as directory only and the trustees can 
 sell and make a good title after the lapse of that period.' 
 
 Implied Powers. — A trust for sale does not, prima 
 facie, imply a power to grant a lease of the property;* 
 but in a proper case a sale of leaseholds may be effected 
 by way of an underlease.^ Similarly, a trust for sale, in 
 the absence of evidence contrary to the settler's intention 
 to convert the estate absolutely, does not authorise the 
 
 ' Palairet v. Carew (1863) 32 Beav. 568. 
 
 - Oliver v. Court (1820) 8 Price 166 ; Campbell v. Walker (1800) 5 
 Ves. 680. 
 
 ■' Stevens v. Austen (1861) 7 Jur. N.S. 873; Ord v. Noel (1820) 5 
 Mad. 440; Mortlock v. Buller (1804) 10 Ves. 292; White \\ Ciiddon 
 (1842) 8 CI. & Fin. 766 ; Wood v. Richardson (1840) 4 Beav. 176 ; Dunn 
 V. Flood (1885) 28 Ch. D. 586. 
 
 * Buxton V. Buxton (1835) 1 My. & Cr. 80; Frv v. Frv (1859) 27 
 Beav. 114 ; and see Re Chapman (1896) 2 Ch. 763. 
 
 « Walker v. Shore (1815) 19 Ves. 391 ; Re Smith (1896) 1 Ch. 171; 
 Re Hamilton (1896) 2 Ch. 617. 
 
 ^ Fry V. Fry, supra ; Patfenden v. Hobson (1853) 1 Eq. Rep. 28. 
 
 ■^ Pearce v. Gardner (1852) 10 Hare 287. 
 
 ** Evans v. Jackson (1836) 8 Sim. 217. 
 
 » Re Judd (1906) 1 Ch. 684; overruling /?t' Walker and Oakshotts 
 Contract (1901) 2 Ch. 383. 
 
 22
 
 338 VENDORS AND PURCHASERS. 
 
 trustees to execute a mortgage;' but a power of sale for 
 the purpose of raising a particular charge may imply a 
 power to raise the charge by mortgage and the Court will 
 in a proper case support the transaction as a conditional 
 sale and as a proper mode of raising the mone}\" Trus- 
 tees for sale with a discretion as to the postponement of 
 the sale and with power, during the postponement, to 
 manage and cultivate and make any outlay thev consider 
 proper " out of the income or capital " for the renewals 
 of leases or for the benefit of the estate, have an implied 
 power to raise money for such purposes bv mortgage or 
 charge of the unsold real estate.' Where the exercise of 
 the power of sale is left to the discretion of the trustees, a 
 purchaser cannot question the exercise of the discretion/ 
 A trust to raise money by mortgage will not authorise a 
 sale, though the sale may be more beneficial to the 
 estate/ Under Lord Cranworth's Act,*^ and now under 
 the Conveyancing Act. 1881,^ a mortgagee, where the 
 mortgage is made by deed, has a statutory power of sale 
 to the like extent as if it had been in terms conferred by 
 the mortgage deed; and the provisions of the Act may 
 iDe adopted bv trustees/ A power to raise money by 
 sale or mortgage authorises a mortgage with a power of 
 sale/ A power of sale does not authorise a partition, 
 but under a power to " sell and exchange " a partition 
 can be effected/" 
 
 Sale of Toiber and Minerals. — Where trustees have 
 a power of sale only, they cannot sell the estate without 
 
 ' Page V. Cooper (1853) 16 Beav. 396 ; Devaynes v. Robinson (1857) 
 24 Beav. 86 ; Walker v. Southall (1887) W.N. 109. 
 
 '^ Stroughill V. Anstey (1852) 1 De G. M. & G. 645 ; Page v. Cooper, 
 supra. 
 
 ■' Re Bellinger (1898) 2 Ch. 534. 
 
 ■• Rendlcsham v. Menx (1844) 14 Sim. 249; Binnie v. Broom (1889) 
 14 App. Cas. 576, 588. 
 
 ■^ Clarke v. Royal Panopticon (1857) 4 Drew. 26 ; Russell v. Plaice 
 (1854) 18 Beav. 21. 
 
 « 23 and 24 Vict. c. 145, sect. 11. 
 
 ^ Sect. 19 ; and see post. p. 345. 
 
 ^ Ibid., sect. 66. 
 
 '■• Bridges v. Longman (1857) 24 Beav. 27 ; Re CItawncr's Will 
 (1869) 8 Eq. 569. 
 
 '« Brassey v. Chalmers (1852) 16 Beav. 223 ; Re Frith and Osborne 
 (1876) 3 Ch. D. 618.
 
 s.vlilS by fiduciary vendors , 389 
 
 tile linihtT standi ni^' upon ii, even though the tenant for 
 life is uninij)eaclialile for waste.' The same rule applies 
 to minerals.' But by the Contirmation of Sales Act, 
 1862. it was provided that such sales might be carried 
 out with the previous sanction of the Court, and now by 
 the Trustee Act, 1893,' where a trustee or other p'brson* 
 is, for the time bein<^\ authorised to dispose of land by 
 way of sale, exchange, partition or enfranchisement, the 
 Court may sanction his so disposing- of the land with an 
 exception or reservation of any minerals, and with or 
 without rights and powers of or incidental to the 
 working, getting, or carr\ing away of the minerals, or 
 so disposing of the minerals, with or without the sdid 
 rights or powers, separately from the residue of the land; 
 and anv such trustee or other person with such sanction 
 previouslv obtained, may, unless forbidden by the 
 instrument creating the trust or direction, from time to 
 time, without an\- further application to the Court, so 
 dispose of any such land or minerals; but nothing in 
 this provision is to derogate from an)- power which a 
 trustee may have under the Settled Land Acts, 1882 to 
 1890. or otherwise. 
 
 In the case of a sale by the tenant for life under the 
 Settled Land Act, 1882, the sale may be made either 
 of the land with or without an exception or reservation 
 of all or an\- of the mines and minerals therein, or of any 
 mines and minerals, and in any such case with or with- 
 (Hit a grant or reservation of powers of working, way- 
 leaves or rights of way, rights of water and drainage, 
 <ind other powers, easements, rights and privileges 
 for or incident to or connected with mining purposes, 
 in relation to the settled land or any other land.* 
 During the minority of the tenant for life, this power 
 mav be exercised by the persons who are trustees of the 
 
 ' Cockcrell v. Cliolnicley (1830) 1 R. & M. 41S : BitcL-lcv v. Howell 
 (1861) 29 Beav. 546; Re Duke of Ruflamls S.K. (1900)" 2 Ch. 206; 
 Chohnclcy v. Poxton (1825) 3 Bing. 207. 
 
 ■^ Buckley v. Howell, supra. 
 
 ' Sect. 44 ; amended by Trustee Act, 1894, sect. 3. 
 
 "• See Re Beaumont's Mortgage Trusts, 12 Eq. 86; Re Cavendish 
 iind Arnold (1912) W.N. 82. 
 
 '' S.L.A.. 1882. sect. 17.
 
 340 VENDORS AND PURCHASERS. 
 
 settlement for the purposes of the Act, if any, and if 
 there are none, then b}- such persons as the Court may 
 chrect/ 
 
 Mode of Sale. — B)^ the Trustee Act, 1893," where a 
 trust for sale or power of sale is vested in a trustee, he 
 may sell or concur with any other person in selling all 
 or any part of the property, either subject to prior 
 charges or not, and either together or in lots, bv public 
 auction or private contract, subject to any such condi- 
 tions respecting title or evidence of title, or other matter, 
 as the trustee thinks fit, with power to vary any contract 
 for sale, and to buy in at any auction, or to rescind any 
 contract for sale, and to resell, without being answerable 
 for any loss; but the trust or power is only exercisable 
 subject to the terms and provisions of the instrument by 
 which it is created,'' and this provision applies only to 
 trusts for powers of sale created by instruments coming 
 into operation after 1881. 
 
 Depreciatory Conditions. — In sales before the 25th 
 December, 1888, trustees were not, without special 
 authority, justified in selling under any unnecessary and 
 depreciatory special conditions.^ In sales by trustees 
 since the 24th December, 1888, no sales can be im- 
 peached bv any beneficiar}^ upon the ground that any of 
 the conditions of sale were unnecessarily depreciatory, 
 unless it appears that the consideration for the sale was 
 therebv rendered inadequate; or, after the execution of 
 the conveyance, and as against the purchaser upon the 
 ground that any of the conditions were unnecessarily 
 depreciatory, unless it appears that the purchaser was 
 acting in collusion with the trustee at the time when 
 the contract for sale was made.'^ 
 
 The Price. — Trustees must sell for a gross sum of 
 monev, unless any other consideration is specially 
 
 ' S.L.A., 1882, sect. 60 ; and see Re Duke of Newcastle's Estates, 24 
 Ch.D. 129. 
 ^ Sect. 13 ; replacing sect. 35 of the Conveyancing Act, 1881. 
 ^ See ibid., sect. 50. 
 
 ■* See Marriott v. AncJior Reversionary Coy . (1861) 3 De F. & J. 177; 
 Dance v. Goldin^haiu (1873) 8 Ch. 902 ; Dunn v. Flood (1885) 28 Ch. D. 
 5S6 : Re Rayner's Trustees and Grcenaway (1885) 53 L.T. 495. 
 
 •' Trustee Act, 1893, sect. 14 ; replacing Trustee Act, 1888, sect. 3.
 
 sALKs K^ iiDiciAin \i;ni)()rs. ;;4I 
 
 authorisL'tl ;' ami tliey should use all reasonable diligence 
 to obtain a fair price," and, therefore, should ascertain 
 the value of the estate, even at the expense of a valuation, 
 where the circimistances of the case render such a course 
 expedient i"* but they are not juslil'ied in ai^reeing to sell 
 at a price to be iixed by valuation, or in anv other 
 manner, as that would be delegating' their power. And 
 they are not justified in entering- into an agreement with 
 an intending- purchaser, giving- him a future option to 
 purchase^ at a fixed price.' 
 
 TiTi.i-: WD C^)^■vl■:vA^■Cl•:. — Subject to express stipula- 
 tion, trustees must show a marketable title, i.e., a title 
 which at all times and under all circumstances mav be 
 forced on an unw illing purchaser,'' and are in all respects 
 liable to a purchaser as if they were absolute and bene- 
 ficial owners,*^ except that they ordinarilv enter into no 
 covenants for title beside the covenant against incum- 
 brances implied by their conveying as trustees.' The 
 purcha.ser, after the contract, should not be let into 
 possession of the estate until the completion of the sale 
 by payment of the full j^urchase-money .'' 
 
 Six TioN •'» — Saucs by I'-xkcitors and Administra'Iors. 
 
 Personal estate, including leaseholds, has always 
 vested, on the death of the vendor, in the personal repre- 
 sentatives, and the purchaser must therefore take his 
 assignment from them, or one of them, their authority 
 
 ' See Rcud v. Shaw (1807) Sug. Pow. 8th ed. 953 ; Rcid v. Shcrgohl 
 (1805) 10 Ves. 381; Pciyiu- v Cork Coy. Ltd. (1900) 1 Cli. 30S ; Re Jackson 
 (19001 44 Sol. Jo. 573. 
 
 '- See L.C C. Act, 1845, sects. 10, 11 ; as amended by the L.C.C. Acts 
 Amendment Act, 1860; and see pp. 355 post: Oni v. Noel (1820) 
 5 Madd. 438; Mortlock v. BnlU-r (1804) 10 Ves. 309: Harper v. Hayes 
 (1^60) 2 De V. (ft J. 542. 
 
 '■' See Campbell y . Walker (1800) 5 Ves. 680. 
 
 ^ Clay V Rittford (1852) 5 De C;. & S. 768 ; Oceanic Steam S'av. Co- 
 V. Siitherberry (1880) 16 Ch. D. 236 ; and see S. L. Act, 1889, sect. 2. 
 
 •'' See Pyrkc v. Waddinsiham (1852) 10 Hare 8 : Miillings v. Trinder 
 (1870) 10 Eq. 449. 
 
 ^ White V. Foljambe (1805) 11 Ves. 343 ; M Donald v. Hanson (1806) 
 12 Ves. 277. 
 
 ' Worley v. Frampton (1846) 5 Hare 560. 
 
 " Oliver v. Court, 8 Price, 166; Brou-cll \ . Read, 1 Hare 434.
 
 342 ViiXDURS AND PURCHASERS. 
 
 over personalty being several as well as joint. But 
 freehold properly vested at common law in the devisee 
 under the vendor's will, or, on intestacy, in his heir, 
 and the heir or devisee, therefore, was the only person 
 who could convev freehold property to the purchaser. 
 By Section 4 of the Conveyancing Act, 1881, the pur- 
 sonal representatives of a vendor dying after 1881 were 
 given power to convey the land to the purchaser, though 
 they could not be compelled to do so, and the con- 
 veyance might still have been executed by the heir or 
 devisee. Xow. however, in the case of persons dying 
 after 1897, the legal estate is vested in the personal 
 representatives by virtue of the Land Transfer Act. 
 1897,' notwithstanding any testamentary disposition, 
 and they may be compelled to convey, and are the only 
 persons who can convey the land to the purchaser, unless 
 thev have assented to any devise contained in the will, 
 or conveyed the land to the devisee or to the heir." in 
 which case the purchaser must take his conveyance from 
 the heir or devisee as before the Act. The Act further 
 provides' that some or one only of several joint represen- 
 tatives cannot sell or transfer really without the authoritv 
 of the Court, and on this provision it was held that even 
 an executor Avho had not proved the will must join in 
 the conveyance unless he had formally renounced.*. But 
 now by the Conveyancing Act, 1911,^ the proving 
 executor or executors may dispose of the property. 
 When the property sold is copyhold, the conveyance 
 must usually be taken from the customary heir or 
 devisee, since the Land Transfer Act, 1897, expressly 
 excludes copyholds or customary freeholds from its 
 operation, where an admission or anv act of the lord of 
 the manor is necessary to perfect the title of a purchaser 
 from a customarv tenant; but if the vendor's interest 
 was equitable only, his personal representatives are the 
 proper persons to convey, as the Land Transfer Act, 
 1897, applies to equitable estates in copyhold.* 
 
 ^ Sect. 1. 
 
 '"^ See ibid., sect. 3. 
 
 ' Sect. 2 (2). 
 
 ■• Re Pawlcy mul Loiitloii and Proviucial Bunk (1900) 1 Ch. 58. 
 
 ' Sect. 12. 
 
 ^ Re Sonicrville and Fiirncss's Contract (1903) 2 Ch. 583.
 
 s\i.r:s H\ i-imciAin \i;ni)()Ks. 34-'» 
 
 Si;cTU)N' 4 — Salks in Mou re \(;i;i:s. 
 
 Stai'utokv 1^)\\■|•:R ui-- Salii in Gi:m;ral. — l^ievious lo 
 the passin*;;- of Lord Cranworth's Act,' a mortgag"ee could 
 only sell the land mortgaf^^ed to him where the mortgage 
 deed expressly empowered him to do so; but by that Act 
 such a power was im|3lied in all cases where the mort- 
 gage was made by deed and executed after the 28th 
 August. 18G(). This provision was repealed antl rej")laced 
 by Section 19 of the Conveyancing ^Act, 1881. \\'here, 
 however, the mortgage is not made by deed, there is no 
 such implied power; and in any case, tlie implied statu- 
 tory power may be excluded or modified by the terms of 
 the mortgage deed.' 
 
 WiiKK PoWKR OK Salk Arisks. — L'ndcr die Convey- 
 ancing Act, 1881, a mortgagee lias power, when the mort- 
 gage money has become due, to sell, or concur whh an\' 
 other person in selling, the mortgaged property or any 
 part thereof, either subject lo prior charges or not, and 
 either together or in lots, by public auction or private 
 contract, subject to such conditions respecting title or 
 evidence of title or other matters as the mortgagee 
 thinks 111, \\ ith power to vary any contract for sale, and 
 to buy in at an auction, and toi rescind any contract for 
 sale, and to resell, without being answ eral)le for any loss 
 thereby occasioned.' It is essential ihai the principal 
 nione\' should be due before this power of sale may be 
 exercised, and even then ihe power is nol exercis^ible 
 unless (a) notice requiring payment of the mortgage 
 mone\' lias been sen-ed on the mortgagor, or one of 
 several mortgagors, and default has been math" in pay- 
 ment of the mortgage money, or of part thereof, for three 
 mf)nths after .such .ser\'ice,' oi' (/') some interest is in 
 arrear and impaid for two months after becoming due, 
 or (c) there has been a breach by the mortgagor of some 
 prox'ision of the mortgage dvi^d or the Act' other than 
 
 ' The Trustees and Mortga^^ees Act, I860. 
 
 -' Ibiil., sect 32 ; Con\eyancing Act, 1S81, sect. 10 (i). 
 
 •'' See sect, 19 (1). 
 
 ' See Barker v. Illiiifiwortlt (190S) 2 Ch. 20 ; Hoolc v. Smith (18S1) 
 17 Ch. D. 434 ; Tozcr v. Burton (1S8S) 5 T.L.R. 7. 
 
 ■' See Public Trustee v. Latc-roice (1912) 1 Ch. 789.
 
 344 VENDORS AND PURCHASERS. 
 
 the covenant for payment of the mortgage money or 
 interest/ 
 
 Mines and Minerals. — A mortgagee, whose mort- 
 gage was executed before 1912, cannot sell the land and 
 reserve the minerals, or sell the minerals apart from the 
 land, without first obtaining the leave of the Court,' but 
 where part only of the land is sold, he may create ease- 
 ments over such part for the benefit of the part retained, 
 or subject the retained land to easements for the benefit 
 of the part sold." In cases of mortgages made since 
 1911, a mortgagee may. without application to the Court, 
 under his statutorv power of sale, sell the mortgaged 
 property or any part thereof, or anv mines and minerals 
 apart from the surface, (a) with or without a grant or 
 reser\'ation of rights of way or water, ea.sements, rights 
 and privileges for or in connection with building or 
 other purposes and in relation to the property remaining 
 on mortgage or any part thereof, or to any property- 
 sold; (b) with or without an exception or reser\-ation of 
 all or any of the mines and minerals, in or under the 
 mortgaged property, and with or without a grant or 
 reservation of power of working, wayleaves or rights 
 of way, rights of water and drainage, and other powers, 
 easements, rights and privileges for or connected with 
 mining purposes, or relative to the property remaining 
 unsold, or any part thereof, or to any property sold; 
 (c) with or without covenants by the purchaser to expend 
 money on the land sold.^ 
 
 Moreover, as regards mortgages executed since 1911, 
 a mortgagee selling under his statutory power of sale 
 may impose or re.serve or make binding, so far as the law 
 permits, by covenant, indenture or otherwise, on the 
 unsold part of the mortgaged property or any part there- 
 of, or on the purchaser, and any property sold, an}' 
 restriction or reservation with respect to buildings on or 
 other user of land, or with respect to mines and minerals 
 
 ' See Conveyancing Act, 1881, sect. 20. 
 
 •^ Buckley v. Howell (1861) 29 Beav. 546 : Trustee Act, 1893, sect. 44, 
 as amended by the Trustee Act, 1893, Amendment Act, 1894, sect. 3. 
 
 ■•' See Born v. Turner (1900) 2 Ch. 211 ; cf. Daxrell v. Hoare (1840) 
 12 A. and E. 356 ; Re Gladstone (1900) 2Cli. 101 ; Broun v. Peto (1900) 
 2 Q.B. 653. 
 
 * Conveyancing Act, 191 1 , sect. 4.
 
 s.\i.i:s jn iiDiciAin \i:ni)()RS. 345 
 
 ur for the jnirpost.' of the mure benetlcial working thereof, 
 or with respect to any other thing/ 
 
 ESTATIC AND IXTliRliST PASSING BY CONVEYANCE. — ^A 
 
 mortgagee exercising his statutory power of sale has 
 power, bv deed, to convey tlie property " for such 
 estate and interest therein as is the subject of the mort- 
 gage, freed from all estates, interests and' rights which 
 have priority to the mortgage."^ But it is important to 
 note that an ecjuitable mortgagee by deposit, even though 
 his memorandum be b\' deed, so as to enable him to exer- 
 cise the poA\er of sale imder the Act, cannot convey the 
 legal estate under the power.' 
 
 Protection of Purchaser. — A bond fide purchaser at 
 <i sale in professed exercise of the power of sale conferred 
 upon a mortgagee by the Act, is not, and never has 
 been, either before or on conveyance, concerned to see or 
 inquire whether a case has arisen to authorise the sale, or 
 whether the notice has been given, or whether the power 
 is otherwise properh- or regularly exercised ;' but an}' 
 person damnified bv an unauthorised, improper, or 
 irregular exercise of the power has a remedy in damages 
 against the person exercising the power.* 
 
 Position of Mortgagee F.xercising Power. — The 
 mortgagee, in exercising his power of sale, is not a trus- 
 tee, and therefore may sell as and w^hen he likes, and to 
 whom he likes, "^ other than himself/ and is not answer- 
 able to the mortgagor for any loss arising from selling 
 subject to depreciatory conclitions which may not be 
 necessary. ** He is, however, liable for any loss arising 
 
 ' Conveyancing Act, 1911, sect. 4. 
 
 ^ Conveyancing Act, 1881, sect. 21 (1). 
 
 '' Re Hodson and Howe's Contract (1887) 35 Ch. D. 668: cf. Re 
 Solomon and Meagher's Contract (1889) 40 Ch. D. 508. 
 
 * Seluyn v. Garfitt (1888) 38 Ch. D. 273; Bailcv v. Barnes (1894) 
 1 Ch. 25; Born v. Turner (1900) 2 Ch. 211 ; See Conveyancing Act, 1881, 
 sect. 21 (2), and Con\eyancing Act, 1911, sect. 5. 
 
 •■• See Ames v. Higdon (1893) 69 L.T. 292. 
 
 ^ Kennedy v. De Trafford (1897) A.C. ISO; Niittw Kaston (1829) 
 1 Ch. 873. 
 
 ^ See Farrar \ . Farrars, Ltd. (1888) 40 Ch. D. 395. 
 
 * Warner v. Jacobs (1882) 20 Ch. D. 220; Haddington v. Httson 
 (1911) A.C. 722.
 
 346 VENDORS AND PURCHASERS. 
 
 from the negligence of himself or his agent,' and in 
 respect of any balance left after payment of all principal 
 and interest and costs dtie to him he is liable as trustee 
 to the mortgagor or to any second mortgagee of whose 
 mortgage he may have notice," so that he will have lo 
 p£i}' interest on such balance for such time as it remains 
 in his hands." 
 
 Effi-xt c^f FoKKCLOsLRi': Decrei:. — The power of sale 
 cannot be exercised bv the mortgagee after he has ob- 
 tained a decree nisi in a foreclosure suit, except with the 
 leave of the Court, because it prejudices the right given 
 to the mortg"agor by the direction to convey. But the 
 power is suspended only, not extinguished, and a bona 
 fide purchaser without notice may get a good title under 
 the power.' 
 
 ' Tovilin V. I.ucc (1889) 43 Ch. D. 101. 
 
 ■^ West London Conini. Bank v. Reliance HIJ^. Socv. (1885) 29 Ch. 
 L). 954 ; Thome v. Heani (1895) A.C. 495 : Conv. Act, 1881, sect. 21 (3). 
 
 •' Eley V. Read (1889) 76 L. T. 39. 
 
 ' Stevens v. Theatres, Ltd. (1903) 1 Cli. 857.
 
 CHAPTER II. 
 
 s.Aij-s rxDi'.K ()RI)i:k oi- coi'R'I'. 
 
 Skction 1 — JiKisDic HON oi- iiiK High Coirt. 
 
 Po\\i:rs in Ric Ai^D to (iooDs. inx . H\- Order 50 of ilic 
 Rules of tlic Sii|)rcnie Court, llie Court or a judge has 
 power, on the a|)j3hcaiion of rni\' jjarty to an action, to 
 make an\' order for the sale, b\- an\- person nahied in the 
 order, in sueh manner .... as may seem desirable, of 
 any j^oods, wares, or mercliandise of a perishable nature 
 or likely to injure from keeping', or which for an\- other 
 just and suflicient reason it mav be desirable to have 
 sold at once.' 
 
 jiiusnicTioN OF Ch.\nci;rv Coii-ir in RixiARi) lo Rkal 
 l^sTATK. — By Order 51 of the Rules of the Supreme 
 Court, the Court or a judge has jurisdiction to order the 
 sale of any real estate or part thereof, in any cause or 
 matter relating thereto, if such a course appears neces- 
 sary or expedient, and any party bound by the order and 
 in possession of the estate, or in receipt of the rents and 
 profits thereof, must deliver up such possession or 
 receipt to the purchaser, or such other person as may 
 be directed b\- (he order.' This ruh^ gives the Cotirt 
 power to direct a sale onl\' where it is necessarv or 
 expedient for the purposes of th(^ action, and was not 
 intended to enable the Court to sell real (\state when 
 t»th(^rwise it had no power to do so.' 
 
 Dkhkntih^i-: Holdkrs' Actions. — In debenture hoklers' 
 actions, where the debenture holders arc^ entitled to a 
 charge by virtue of the debentures or of a trust deed, or 
 otherwise, and the plaintiff is suing on behalf of himself 
 and other debenture holders, and where the judge in 
 person is of opinion that there must eventuallv be a sale, 
 he ma\- in his discretion direcM a sale before judgment, 
 
 ' Rule 2 ; see Bartliolonicxc \ . Frcciiuin, i ("I'D. JIO: l-htiiis \. 
 D.ivics (1893) 2 Ch. 216. 
 
 '^ Rule 1 ; and see Miles v. ,fitn-is fl8S3) 50 r..T. 48 ; Re Rohiiison 
 (1885)31 Ch. D 247. 
 
 ' Re Robinson, snfyni ; Re Staines (1887) 35 Cli. D. 172.
 
 348 VENDORS AND PURCHASERS. 
 
 and also after judgment, before all the persons are ascer- 
 tained, whether served or not.* 
 
 Rede:\iptiox and Foreclosure Actions. — In the case 
 of a mortgaged property, any person entitled to redeem 
 such property may have an order for sale, and in an}- 
 action for foreclosure, redemption, sale, or raising and 
 payment of mortgage money, on the request of the mort- 
 gagee, or of any person interested in the mortgage 
 money or right of redemption, and notwithstanding the 
 dissent of any other person, and that the mortgagee or 
 any other person interested does not appear, and without 
 allowing any time for redemption or payment of mort- 
 gage money, the Court may direct a sale on such terms 
 as it thinks fit, including deposit in court of a reasonable 
 sum fixed by the Court to meet expenses of sale and 
 secure performance of the terms; but in an action by a 
 person interested in the right of redemption, the Court 
 may, on the application of anv defendant, direct the 
 plaintiff to give securitv for costs, and give the conduct 
 of the sale to any defendant, and give directions respect- 
 ing the defendants'' costs; and the sale mav be ordered 
 without previously determining the priorities of incimi- 
 brancers, and at any stage of a redemption action.' 
 
 Effect of Order. — The effect of the order of the 
 Court is to bind the legal and equitable interests in the 
 land sold of all persons who are either parties to or 
 bound by the proceedings in which the order is made, 
 and on a conveyance of the legal estate to the purchaser, 
 the concurrence of persons who have equitable interests 
 only is not necessary.^ The order cannot be invalidated 
 as against a purchaser on the groimd of want of jtiris- 
 diction, or of want of any concurrence, consent, notice, 
 or service, whether the purchaser has notice of anv stich 
 want or not."* 
 
 ' Rule lb ; see Re Day and Night Advert. Co.. 48 W.R. 362; Re 
 Cnggk'sfoiw Coal Co. (1906) 1 Cli. 523. 
 
 - Con\evancin^ Act, 1881, sect. 25 ; see Woollcv y. Cohnaii, 21 Cli. 
 D. 169. 
 
 =' Basnctt v. ^]oxon (1875) 20 Kq. 182; Re Wliittani (1901) 84 L.T. 
 585. 
 
 ■* Con\eyancin},' Act, 1881, sect. 70 (1) — (3) ; Re Hall Dare's Con- 
 tract (1882) 21 Ch. D. 41 ; Mostyn v. Mostyn (1893) 3 Ch. 376; but 
 seejoiu-s v. Harnett (1899) 1 Ch. 611; (1900) 1 Ch. 370.
 
 s.\lf:s un'dkr ordkr of court. 34J> 
 
 Skctiox 2 — Mom-: and C'oxdlct oi- Sai.i:. 
 
 Modi-: of Sai.f. — The sale may be ortk'red to be carried 
 out either {a) b\- ,layini:;- proposals before the judge in 
 (hanibers for his sanction, or (b) by proceedings alto- 
 gether out of couri, an\- moneys produced thereby being 
 ])aid into court or to trustees, or otherwise dealt with as 
 the judge in chambers may decide. Proceedings 
 altogether out of court are not to be authorised unless 
 and until the judge is satisfied by such evidence as he 
 deems sufficient thai all persons interested in the land 
 to be sold are before the Court or are boimd by the order 
 for sale, and every order authorising such proceedings 
 must be prefaced by a declaration that the judge is so 
 satislu'd and a statement of the e\"idence tipon \\hicli 
 sucli declaration is made.' The sale is, as a rule, by 
 public auction ;" but proposals may be carried in for sale 
 by private contract.' An advantageous offer will be at 
 once accepted," and without intiuiry in chambers, if the 
 evidence is satisfactory.' 
 
 CoNF)UCT of S\li:. — The conduct of the sale is (except 
 in cases of administration, where the property ordered 
 to be sold is vested in an executor, administrator, or 
 trustee") usually given to the plaintiff or other person 
 having the carriage of the judgment or order ;'^ though 
 but for the action he might not have been entitled to 
 interfere in the .sale;^ unless he has leave to bid.* But 
 the conduct of the sale rnay be given to another w'here a 
 probable benefit, e.g., by saving expense, will result to 
 
 ' Order 51. Rule la; and see Pitt v. White. 57 L.T. 659; Re 
 Stcdman, 58 L.T. 709 : Ciimhcrlomi Banking Co. v. Mnryfiort Sfccl 
 Coy. (1892) 1 Ch. 92. i 
 
 '^ See Pcmbcrton v. Barnes (1872) 13 Eq. 349. 
 
 •' Pimm V. Insall (1853), 10 Ha. Appendix II. l.Kxi/. ; O.sbornc v. 
 Foreman (1856). 8 De G.M. & G. 122; Barloiv v. Osborne (1858). 6 
 H L. Cas. 556; Bousfield v. Hodges (1863). il Beas-. 90; Berry v. 
 Gibbons, ex parte Lee (1872). 15 F-q. 150; Re Thomas. Barfley v. 
 Thomas (1911), 55 Sol. Jo. 567. 
 
 * Pimm V. Insall, supra. 
 
 * See Order 50, Rule 10. 
 
 « Knotty. Cottee (1859) 27 Beav. 33, Dale v. Hamilton (1853) 10 
 Hare, App. I., vii. 
 
 ■ Dale V. Hamilton, supra. 
 
 " Domville v. Berringfon, 2 Y. & C. 723 : Sidnev v. Riinger, 12 Sim. 
 118. ' •
 
 -350 VENDORS AND PURCHASERS. 
 
 the parties/ If the conduct of the sale has been given 
 to some independent person, neither the plaintiff nor the 
 defendant, with liberty to bid, will be allowed to interfere 
 by advertising the sale.' The solicitor of the party 
 having the conduct of the sale is considered, as between 
 vendor and purchaser, to be the agent of all parties to 
 ■the sale f and everv party having the title deeds is bound 
 to facilitate the sale.' 
 
 Leave to Bid. — As a general rule a party to the 
 action will not be allowed to bid at the sale, or become 
 the purchaser without previously obtaining leave;" but 
 the sale will not necessarily be set aside because a party 
 to the action has without leave bid and become the pur- 
 chaser.'^ Leave to bid is sometimes contained in the 
 judgment or order for sale, but an order for that purpose 
 may be obtained at chambers on notice to the other 
 parties. Leave to bid will not in general be given to the 
 party having the conduct of the sale,^ nor to an executor 
 in an administration action;* nor to a receiver;® nor to 
 a trustee unless all the beneficiaries who are of age con- 
 sent and no other purchaser at an adequate price can be 
 found;" nor to a solicitor of a part}' who cannot himself 
 buy." If all parties to the action obtain leave to bid, the 
 conduct of the sale will be given to an independent 
 solicitor.'" 
 
 1 Dixon V. Pyner (1850) 7 Ha. 331 ; Knott v. Cottee (1859) 27 Beav. 
 33; Hewitt V. Nanson (1858) 7 W.R. 5; Davics v. Wright (1886) 32 
 Ch. D. 220 ; Woollcy v. Cohiian, 21 Ch. D. 169 ; Cobdcn v. Maynard, 
 1 N.R. 354 ; Re Gardner (1879) 48 L.J. Ch. 644 ; Re Love (1885) 29 Cli. 
 D. 348. 
 
 '■* Dean v. Wilson. 10 Ch. D. 136. 
 
 •^ Dalhy v. Piillen (1830) 1 Russ. & M. 296; Dale v. Hamilton, 
 (1853) 10 Hare, Appendix I. vii. ; Re Banister (1879) 12 Ch. D. 131. 
 
 ' Knott V. Cottee, supra ; Livescy v. Harding, 1 Beav. 343. 
 
 •'• Elu-orthy v. Billing (1841) 10 Sim. 98. 
 
 •^ Wilson V. Greenwood, ibid, 101 n. ; and see Sidney v. Ranger 
 (1481) 12 Sim. 118. 
 
 ' Dovivillc V. Bcrrington, 2 Y. & C. 723 : Sidney v. Ranger, supra ; 
 Verrall v. Cathcart, 27 W.R. 645. 
 
 " Geldard v. Randall, 9 Jur. 1085 ; Coaks v. Boswell, 11 App. Cas. 
 232. 
 
 3 Nugent V. Nugent (1907) 2 Ch. 292 ; (1908) 1 Ch. 546. 
 
 '"> Tennant v. Trenchard, 8 Ch. 537 ; Farmer v. Dean, 32 Beav. 327. 
 
 " Guest V. Smythe, 5 Ch. 551. 
 
 •2 Dean v. Wilson (1878) 10 Ch. D. 136.
 
 s\Li:s r.\i)i:i^ oi^ni-u of court. 351 
 
 Pari icn.Aus and C'ondu ions. — By Order 5J, rule 2, 
 before a sale b\- the Court, an abstract (jf the title is, 
 unless other^vise < rdered, to be laid before a conveyanc- 
 ino; counsel for his opinion, toenable the Court to give the 
 necessary directions respecting the conditions, and other 
 matters connected with the sale; and a time for delivery 
 of the abstract is to l)e specified in the conditions; but 
 the Court has discretion to dispense with his assistance.' 
 The conveyancing^ coimsel, as between vendor and pur- 
 chaser is treated as the agent of the vendor." The formal 
 conditions of sale are prepared by the solicitor of the 
 party having the conduct of the sale, and are, together 
 with the abstract and memorandum of reference, laid 
 before the conve^•ancing counsel, b\' whom the special 
 conditions are prepared and settled. A\"hen the par- 
 ticulars and conditions of sale have been settled bv the 
 conveyancing counsel, and his certificate that the sale 
 may proceed has been obtained, the auctioneer is 
 appointed and his remuneration is fixed, and the state- 
 ment of the reserve price is handed to him in a sealed 
 envelope which is not to be opened till the sale."^ 
 
 Ckrtifving THi^ Result. — By Order 51, Rule 6a, the 
 particulars of sale are to be signed by, and the result of 
 the sale certified under the hands of the auctioneer and 
 the solicitor of the party having the conduct of the sale. 
 The Master then makes his certificate of the result of the 
 sale, and this is transmitted by the ^Master to the Central 
 Office to be there filed, and thenceforth becomes binding 
 on all parties to the proceedings, unless discharged or 
 varied on application by summons, within eight clear 
 days after the filing; subject to the power of the Court, 
 on motion or summons, to open anv such certificate at 
 anv time after the same has become bindintj.' 
 
 ' See Gibson v. WooUard (1854) 5 De M. & G. 835 ; Re Jones (1855) 
 1 Jur. N.S. 817; Ralph v. Morton (1870) 19 W.R. 220. 
 
 * Re Banister, 12 Ch. D. 131. 
 
 •■' See Pitt \. White (1887) 57 L.T. 650: Re Stedwan (1888) 58 L.T. 
 709; Re Walfonl (1888) W.N. 178. 
 
 * Order 55. rules 70, 71 ; and see Bridger v. Pen/old, 1 K. & J. 28: 
 Barlow v. Osborne (1858) 6 H.L.C. 556.
 
 CHAPTER III. 
 
 SALES UNDER THE LANDS CLAUSES ACTS. 
 
 Section 1 — Introductory. 
 
 Object of Lands Clauses Acts — Prior to 1845, 
 every Special Act of Parliament authorising the acquisi- 
 tion of land for public purposes or for the purposes of 
 commercial undertakings of public utility such as rail- 
 ways, canals, and waterworks, had to be self-contained 
 and always comprised a large number of clauses com- 
 mon to all such Acts, combined with special clauses 
 peculiar to the undertaking" authorised bv the Act. In 
 order to diminish the bulk of these special Acts, and to 
 ensure precision, brevity, and, as far as possible, uni- 
 formity, the clauses which were common and indispens- 
 able to all these Special Acts were classified into one 
 general Act called the Lands Clauses Consolidation Act, 
 1845, so that every Special Act afterwards passed might 
 incorporate the general Act by reference. The principal 
 .\ct has since been amended by subsequent Acts,^ and 
 these are all to be read together as constituting a single 
 code. 
 
 Enabling and Restrictive Provisions of Code. — 
 The promoters of an undertaking cannot take or inter- 
 fere with any particular piece of land unless it is clear 
 from their Special Act that they are authorised to do so. 
 Otherwise, the promoters may enter upon, take, and use 
 the lands delineated and described in the plans and books 
 of reference deposited by them on application to Parlia- 
 ment for the necessary compulsory powers of acquisition 
 and sanctioned by the Special Act. Although an ease- 
 ment over or through certain land might be sufficient for 
 the purposes of the promoters, they cannot compel a land- 
 owner to grant them such an easement.^ nor are they 
 enabled to take a stratum of land only or to appropriate 
 
 ' The Lands Clauses Consolidation Acts Amendment Act, 1860 ; the 
 Lands Clauses Consolidation Act, 1869 ; the Lands Clauses (Umpire) Act, 
 1883 ; the Lands Clauses (Taxation of Costs) Act, 1895 ; the Acquisition 
 of Land (Assessment of Compensation) Act, 1919. 
 
 '^ See Pinchin w London & Blacliwall Rly. Cov. (1854) 5 De. G.M. 
 and G. 851 ; Re Metrop. Rly. Co. and Cosh (1880) 13 Ch. D. 607.
 
 SALi:s rXDKR LANDS CLAUSES ACTS. 353 
 
 * 
 aiul use tlu' subsoil onlv, c^., for the purpose of makini^ 
 a uinnel ;' the entire land must be purchased in the 
 abscnci' of special provisions to the contrar\-, c^r unless 
 the owner is willinof to agree otherwise." The plans and 
 books of reference referred to above are only binding to 
 the extent to which they are incorporated and referred to 
 in the Special Act, and only for the purposes in regard to 
 which that Act refers to them.' The purposes for which 
 the land may be taken ma\- include the execution of 
 works, in which case the land mux be taken for all the 
 works, of whatever nature, authorised to be executed ' 
 The power to determine which portion of the land is 
 required for their legitimate purposes rests with the pro- 
 moters of the undertaking," and it is immaterial that the 
 w(jrks might be carried out in another wax which might 
 cause less inconvenience," provided the promoters act 
 honestly and in good faith.' 
 
 Superfluous Lands. — Lands acquired under the 
 Special Act, whether by agreement with the owners 
 thereof or compulsorily, which are subsequently found 
 to be superfluous for the purposes of the undertaking, 
 must be sold within the period prescribed by the Special 
 Act, or, if no period is prescribed, within 10 years after 
 the expiration of the time limited in the Special Act for 
 
 ' Ramsdcti v. Munch. & Alfrincham Rly. Coy. (1848) 1 Exch. 723: 
 Falkner v. Somerset and Dorset Rlv. Coy. (1873) 16 Eq. 458 ; Mctrop. 
 Rly. Coy. v. Fowler (1893) A.C. 416. 
 
 -' G.W.Rly. Cov. V. Swindon &c. Rly. Cow (1884) 9 App. Cas. 787: 
 Farmer V. Waterloo & Citv Rly. Coy. (1895)" 1 Cli. 527: Roderick v. 
 Aston Local Board (1877) 5 Ch. D. 328. 
 
 •■ N.B Rlv. V. Todd (1846) 12 CI. & Fin. 722: Beardmerv. L.N.W. 
 Rly. Cov. (1849) 1 Mac. & G. 112, 114 : Breynton v. L.N.W. Rlv. (1846) 
 10 Beav. 238: R. v. Cal. Rly. Coy. (1850) 16 Q.B. 19: Att'.-Gcn.v 
 G.E. Rlv. Coy. (1872) 7 Ch. App. 475: Re Huddersfield Corpn. and 
 Jacomb (1874) 10 Ch. App. 92. 
 
 ' Simpson v. S. Staffs Waterworks Coy. (1865) 34 L.J. Ch. 380: 
 Cother V. Mid Rly. Coy. (1848) 5 Ry. & Can. Cas. 187 : London Assoc, 
 of Shipowners v. London, &c. Joint Committee (1892) 3 Ch. 240 : Webb 
 V. Manch. & Leeds Rly. Coy. (1839) 4 My. &. Cr. 116: and see 
 Galloway y. London Corporation (1866) 1 H.L. 34. 
 
 ^ Stockton and Darlington Rly. Co^k v. Brown (1860) 9 H.L. Cas. 246. 
 
 « Ibid. ; LB. & S.C.Rly. v. Truman (1885) 11 App. Cas. 45. 
 
 ' Ibid. ; Webb v. Manch. & Leeds Rly. Coy. (1839) 4 My. & Cr. 116 
 Flower v. LB. & S.C.Rly. (1865) 34 L.J. Ch. 540 : Kemp v. S.F.Rlv. 
 Coy. (1872) 7 Ch. App. 364 : Errington v. Metrop. Dist. Rly. (1882) 19 
 Ch. D. 559. 
 
 23
 
 354 VENDORS AND PURCHASERS. 
 
 the completion of the works.' The promoters may sell 
 such lands at any time they consider the land super- 
 fluous; the sale must be an absolute sale and the pro- 
 moters mav not retain anv interest in such land." Before 
 sale, the promoters must, unless the superfluous lands are 
 situate within a town or are lands built upon or used for 
 building purposes, first offer to sell the same to the 
 person then entitled to the land, if any, from which the 
 same were originally severed.^ If such person refuses 
 to purchase the lands, or cannot be found, then the like 
 offer must be made to the person or persons, including 
 those having limited interests, whose lands adjoin the 
 lands so proposed to be sold, provided those persons are 
 capable of entering into a contract for such purchase.* 
 If any person having such a right of pre-emption desires 
 to exercise it, he must signify his desire to the promoters 
 within six weeks after their offer. If he accepts the offer 
 but fails to agree with the promoters as to the price of 
 the land, the price must be ascertained bv arbitration, 
 and upon payment or tender to the promoters of the 
 purchase-money so agreed or determined thev must 
 convey the land to the purchaser.* If the promoters 
 make default in absolutely selling or disposing of the 
 superfluous lands within the time limited, then all super- 
 fluous lands remaining unsold at the expiration of that 
 period absolutely vest in and become the propertv of the 
 owners of the land adjoining in proportion to the extent 
 of their lands respectively adjoining the same.* 
 
 ' Lands Cl. Act, 1845, Sect. 127. 
 
 ■^ See L. & S.W.RIv. Cow v. Goiiiiii (1S82) 20 Ch. D. 526: Ray v. 
 Walker (1892) 2 Q.B. 82 ; Re Thackeray and Young (1888) 40 Ch. D. 
 34 ; Re Higgins and Hitchman (1882) 21 Ch. D. 95. 
 
 =^ Lands Cl. Consol. Act, 1845, sect. 128 ; See //oftft.s v. Mid. Rly. Cov. 
 (1882) 20 Ch. D. 418 ; Corrington v. Wycombe Rly. Coy. (1868) 3 Ch. 
 App. 377; L.S.W.Rlv-yBlackniore (1860) 4 H.L."610 :" G.iy./^/j. Cor. 
 V. May (1874) 7 H.L. 283. 
 
 < Coventry v. LB. & S.C.Rly. (1867) 5 Eq. 104; L.S.W.Rly. v. 
 Blackmorc, supra ; Hooper v. Bourne (1880) 5 .\pp. Cas. 1 ; Re 
 Rateman and Parker's Contract (1899) 1 Ch. 599. 
 
 •'■ Lands Cl. Consol. Act, 1845, Sects. 129, 130, 131 ; Jones v. S. Staffs. 
 Rly. Coy. (1869) 19 L.T. 603. 
 
 •^ Lands Cl. Consol. Act, 1845, Sect. 127 ; Moodv v. Corbett (1866) 1 
 Q.B. 510; G.W.Rlv. v. Mav (1874) 7 H.L. 283; Macfie v. Callander 
 and Oban Rly. Coy. (1898) A.C. 270; Re Metrop. Dist. Rly. Coy. and 
 Cosh (1880) 13 Ch. D. 607.
 
 SALES UNDER LANDS CLAUSES AC;TS. 355 
 
 Section 2 —Acquisition of Land by Agreement. 
 
 Power to Purchase. — Subject to the provisions of 
 the code and the Special Act the promoters may agree 
 with the owners of any lands which are authorised by the 
 Special Act to be taken and which are required for the 
 purjDoses of the Special Act, and with all parties having 
 any estate or interest in such lands, or who are by the 
 ccKle or the Special Act enabled to sell and convey the 
 same, for the absolute purchase of any such lands or parts 
 thereof and of all estates and interests in such lands.* 
 Where the owner is able and willing to sell an easement 
 or similar right over his land, and such right is sufficient 
 for all purposes sanctioned by the Special j\ct the parties 
 mav agret' for the sale of such a limited right." Though 
 manv of the iiersons who under the code or the Special 
 Act are authorised to sell and convev have powers of sale 
 under settlements or under other Acts,' the promoters 
 cannot require them to sell under these other powers so 
 as to save costs of re-investment,* and if the sale purports 
 to be carried out under the code, its validitv must be 
 determined according to the provisions of the code, 
 independently of the other powers.' 
 
 Consideration for the Salic — The sale must be for 
 a consideration in money, "^ but all parties empowered bv 
 the Act to sell and convey may sell either in considera- 
 tion of a gross sum or of an annual rent-charge pavable 
 bvthe promoters of the undertaking.' The yearly rents 
 so reserved become charged on the tolls or rates, if any, 
 payable under the Special Act,^ and become a prior 
 charge on the net earnings of the undertaking and have 
 prioritv over the debentures;® or they may be secured in 
 
 ' Lands CI. Cons. Act, 1845, sect. 6 ; and see also sections 7-15. 
 
 - G. W. RIy. Co. V. Sii^indoit, f^-. T^fy. Co. (1S84) 9 App. Cas. 787. 
 
 ■'' E.g. the Settled Lands Act ; and see ante, pp. 333-346. 
 
 ' Re Bcntinck and L.N.W. Rly. Coy. (1895) 12 T.L.R. 100. 
 
 '■ Peters V. Lcu-es and Hast Grinstead Rly. Coy. (1881) 18 Ch. D. 
 429. 
 
 ''• Lands Ci. Cons. Act, 1845, sect. 0. 
 
 ~ Ibid., sect. 10 ; amended by the Lands CI. Cons. Act .\mendment 
 Act, 1860. sects. 1-4. 
 
 " Ibid., sect. 11; Lands CI. Cons. Act Amend. .Xct, 1S60, sect. 4 ; 
 Re Gerard and Bcechani's Contract (1894) 3 Ch. 295. 
 
 ' Evton V. Denbigh &c. RIv. Cow (1869) 7 Eq. 439 ; of. Jersey v. 
 Briton Ferry Dock Coy. (1869) 7 Eq. 409.
 
 356 VENDORS AND PURCHASERS. 
 
 such Other manner as may be agreed upon between the 
 parties.' When the lands are to be purchased or taken 
 from any person under any disabihty or incapacity and 
 not having power to sell or convey such lands except by 
 virtue of the code or the Special Act, the purchase- 
 money, rent-charge, or other compensation to be paid, 
 and also the compensation for any permanent damage or 
 injury to any lands held by such persons, must not, 
 except wh^re the same shall have been determined by 
 the verdict of a jury or by arbitration, or by the valua- 
 tion of a surve-s'or appointed by two justices as provided 
 hv the code, be less than shall be determined by the 
 valuation of two able practical surveyors, one of whom 
 shall be nominated by the promoters and the other by the 
 other party, and if such two surveyors cannot agree in 
 the valuation, then by such third surveyor as any two 
 justices shall upon application of either party, after 
 notice to the other party, for that purpose nominate; and 
 all such purchase-money or compensation must be 
 deposited in the Bank of England for the benefit of the 
 parties interested, in the manner provided by the code." 
 
 Purchase for Extraordinary Purposes. — The 
 power to sell and conve}' lands conferred by the code 
 upon persons who otherwise would be under disability 
 or incapacity, extends to lands which the promoters are 
 authorised to purchase for extraordinary purposes, i.e., 
 purposes for which, at the time of the passing of the 
 Special Act, it was not foreseen that lands would 
 of necessity be required." But the promoters mav 
 not purchase more than the prescribed quantit\" 
 from any persons.' The lands so acquired for extrd- 
 ordinary purposes, or any part thereof, may be sold by 
 the promoters in such manner and for such considerations 
 and to such persons as they may think fit, and they ma}' 
 again purchase other lands for the like purposes and 
 aherwards sell the same; but the total quantity of land 
 
 ' See note 9 on p. 355 ; Foster v. Munch. &c. Rly. Co. (1880) 49 L.J. 
 Ch. 454 ; Lands CI. Cons. Act, 1845, sect. 11. 
 
 - Lands CI. Cons. Act, 1845, sect. 9 ; and see also sects. 25-62 ; 
 Stone V. Yeovil Corporation (1876) 2C.P.D. 99; Bridgend Gas Coy. 
 V. Diinraven (1885) 31 Ch. D. 219. 
 
 ■ Lands CI. Cons. Act, 1845, sect. 12; Hooper v. Bourne (1877) 
 3 Q.B.D. 258. 
 
 •• Ibid., sect. 14.
 
 SALES UNDKR LANDS CLAUSES ACTS. '557 
 
 to be held by the promoters for these purposes at any one 
 time must not exceed the quantil\- prescribed b\- the 
 Special Act.' 
 
 Six HON ;5 — Comiulsokv Acquisition of Land. 
 
 l-lxKNCisi". OF PowKUs. — Where the undertakini^- is 
 intended to be carried into effect by means of capital to 
 be subscribed b\- the promoters, the whole of the cajiital 
 or estimated sum for defra\ing- the expenses of the under- 
 taking- must be subscribed imder contract binding 
 the parties thereto, their heirs, executors and adminis- 
 trators, for the payment of the several sums by them 
 respectively subscribed.^ This restriction does not. how- 
 ever, extend to cases where an existini^ company is 
 authorised to construct additional works.'' The com- 
 pulsorv powers of purchasing; and takino^ lands cannot 
 be exercised after the expiration of the period prescribed 
 bv the Special Act, or if no period is prescribed but the 
 code is incorporated, then not after the expiration of 
 three years from the passinor of the Special Act.' If th.e 
 code is not incorporated and no period is prescribed, the 
 powers ma\ be exercised so long as mav be required for 
 carrying out the purposes of the Act.* lender the code, 
 the service of a notice to treat within the period is a 
 suflRcient exercise of the compulsory powers to comply 
 with the condition as to time;" and the time may be 
 extended by a subsequent statute.^ 
 
 XoTiCE TO Tri:at. — When the promoters retjuire to 
 ])urchase or take any of the lands which by the code or 
 the Special Act they are authorised to purchase or take, 
 thev must give notice thereof to all the parties interested 
 
 ' Lands CL Cons. Act. 1845, sect. 13. 
 
 "^ Lands CL Cons. Act, 1.S45, sect. 10; R v A ui her ante Rly. Cay. 
 
 (1853) 1 E. & B 372; (Jiicst v. Poole and Boiirnciiioiith Rly. Coy. 
 
 (1870) 5 C.P. 553 ; and see Re U.\hriil-ie and Rickinans-.corth r'Iy Coy. 
 (1890) 43 Ch. D. 536. 
 
 •" K. V. G.W.R. Coy. (1852) 1 !•:. & H, 253: Weld v S.W.R. Coy. 
 (1863) 33 L.J. Ch. 142. 
 
 * Lands CL Cons. Act, 1845. sect. 123. 
 
 * Salmon v. Randall (1838) 3 My. & Cr. 439. 
 
 « Sali.^hury v. G.N.R. Coy. (1852) 17 Q.IL 840: Tiverton. &c. Rly. 
 Coy. V. Looscmorc (1884) 9 App. Cas. 480.' 
 
 '' Ystalyfcra Iron Coy. v. Neath and Brecon Rly. Coy. (1873) 17 Eq. 
 142; Bcntley v. Rotherham, &c. Local Board (1876) 4 Ch. D. 588.
 
 358 VENDORS AND PURCHASERS. 
 
 in such lands or to the parties who are enabled b}' the 
 code to sell and convev or release the same, or to such 
 of them as shall, after diligent inquiry, be known to the 
 promoters, and b}' such notice must demand from such 
 parties the particulars of their estate and interest in such 
 lands, and of the claims made by them in respect 
 thereof ; and everv such notice must state the particulars 
 of the lands so required and that the promoters are 
 willing^ to treat for the purchase thereof and as to the 
 compensation to be made to all parties for the damage 
 that may be sustained by them bv reason of the execution 
 of the works/ These notices must be served personally 
 on such parties or left at their last usual place of abode ; 
 and in case any such parties are absent from the United 
 Kingdom or cannot be found after diligent inquiry, the 
 notice must also be left with the occupier of such land?-, 
 or, if there is no such occupier, must be affixed upon 
 some conspicuous part of such lands. ^ If the promoters 
 merely desire to interfere with incorporeal rights in pro- 
 perty, e.g., easements, and do not desire to acquire such 
 rights, no notice need be served/ But if for the purposes 
 of the undertaking it would be sufficient for the promo- 
 ters to purchase and take onlv easements* or corporeal 
 rights in land, e.g., a stratum of land for the purpose of 
 constructing a tunnel, thev must serve notice to treat 
 for the whole of the land^ unless there is express power in 
 their Special Act to acquire an easement or some such 
 limited right/ 
 
 Effixt of Notice to Treat. — Subject to its validity, 
 the service of a notice t(^ treat binds the promoters to 
 
 ' Lands Cl. Cons. Act, 1845, sect. l.S. 
 
 '^ Ibid., sect. 19 ; and see ibid., sect. 20 ; S/icplicrd v. Noricich Cor- 
 ■boration (1885) 30 Ch. D. 553. 
 
 » Maccv V. Metrop. Board of Works (1864) ii L.J. Ch. 377 ; Bedford 
 V. Dau^son (1875) 20 Eq. 353 ; Wigraiu v. Fryer (1887) 36 Ch. D. 87. 
 
 •• Pincliin v. iMiidon and Blackicall Rly. Cov. (1854) 5 De ISL & G. 
 851. 
 
 •■■ Ranisdcii v. Manch., &c., Rly. Coy. (1848) 1 Exch. 723; Sparroiv 
 V. Oxford, &c. Rly. Cov. (1852) 2 De M. & G. 94 ; Falkticr v. Soincr.'n'f, 
 &c., Rly. Coy. (1873) 16 Eq. 458 ; Re Metrop. Di.sf. Rlv. Coy. and Co.sli 
 (1880) 13 Ch'. D. 607. 
 
 ^ Hill V. Mid. Rlv. Coy. (1882) 21 Ch. I). 143 ; Farmer v. Waterloo. 
 &c., Rlv. Cov (1895) 1 Ch. 527; of. (Mr. A'. Cov. v. Szvindon, &c..Rlv. 
 Coy. (1884) 9' App. Cas. 787.
 
 SALKS I NHKR LANDS CLAISKS ACTS. '>o'> 
 
 lake the land and the landowner to o^ive up the land 
 subject to pa\ment of compensation.' But strictly 
 speakinii", there is no contract between the parties until 
 ihev have come to some definite arrangement as to the 
 terms, or until the value of the land to be taken has 
 been ascertained in manner provided by the code.' 
 Thus, where the landowner, after service of the notice, 
 stated the price he was willinj];- to take, but died before 
 his offer was accepted, it was held that, althou<2^h the pur- 
 chase was afterwards completed at that price, there was 
 no contract binding- on the heir." Where the price i.-^ 
 ascertained, the contract is complete and may be 
 specifically enforced by or against the company,' An 
 owner who has received a notice to treat in respect of his 
 kmds cannot deal with such land or lands held therewith 
 so as to increase the burden upon the promoters as 
 regards compensation or otherwise,^ but subject thereto 
 he may sell or convey such lands or otherwise deal with 
 them and the right to the payment of compensation mav 
 be assigned and dealt with as property.* If the land taken 
 under a notice to treat proves insufficient for the author- 
 ised purposes of the undertaking the promoters mav serve 
 a second notice to the same owner in respect of additional 
 lands w[ihin the limits to which their compulsorv powers 
 extend;' and the compulsory power is not exhausted bv 
 a single notice, even as regards the land to which the 
 original notice extended, so that where a notice has been 
 validly withdrawn," the promoters are in the same posi- 
 tion as if no notice had been given and mav give anv 
 
 ' Adams V. Loiuinii ami Blackwall Rly. Coy. (1850) 2 Mac. & G. 
 118 ; Haynes v. Hayiu-s (1861) 1 Drew. & Sm. 426 ; Tiverton. &c., Rlv. 
 Coy. V. Loo.scniorc (1884) 9 App. Cas. 480; Mercer v. Liverhool, &c , 
 R/y. Coy. (1903) 1 K.B, 652. 
 
 - Fotherby v. Metrop. Rly. Coy. (1866) 2 CI". 188; Tiverton, c'-c. 
 R/y. Coy. v. Looseinore. supra. 
 
 ■' Re Arnold (1863) il Beav. 591. 
 
 ' Harding V. Metrop. Rly. Coy. (1872) 7 Ch. 154 : Watts v. W'att.'t 
 (1S73) 17 Eq. 217; Havnes v. Haynes, supra ; Re Carv Klxees Contract 
 (1906) 2 Ch. 143. 
 
 ■' Ex parte Hdu-ards (1871) 12 Eq. 389: Wi/L-ins v. Birni. Corpn. 
 (1S83) 25 Ch. I). 78; Mercer v. Liverpool, f'-c. Rlv. Cov. (1904) AC 
 461. 
 
 " Dau-son v (i.N.R. Coy. (1905) 1 K.B. 260. 
 
 " Siinp.-ion v Lane. ^^ Carl. Rlv. Cov. (1847) 15 Sim. 580 : Stamps v. 
 Hirm.. &c., Rly. Coy. (1848) 7 Hare 251 
 " See infra.
 
 -3G0 VENDORS AND PURCHASERS. 
 
 number of fresh notices during- the continuance of their 
 compulsory powers, whether in respect of the whole 
 land comprised in the first notice or not. The notice 
 cannot, however, operate for an indefinite time; it must 
 be acted on within a reasonable period, or it will he 
 deemed to have been abandoned/ 
 
 The obligation imposed bv a notice to treat cannot 
 be avoided by either party without the consent of the 
 other,* unless the landowner is entitled to serve a 
 counter-notice requiring the promoters to take more 
 land than they desire, in which case the promoters may 
 withdraw their notice,^ or unless the promoters are en- 
 titled by the provisions of their Special Act to withdraw 
 their notices.* 
 
 Restrictions on Taking Part of House or Manu- 
 factory. — If the notice to treat relates to part only of 
 any house or other building or manufactory, and the 
 owner is able and willing to sell and convey the whole 
 of his interest therein, he may, under the code, require 
 the promoters to purchase and take the whole, and can- 
 not be required at anv time to sell and convey a part 
 only.^ In such a case, the promoters may purchase the 
 whole or mav withdraw the notice to treat and the parties 
 are then in the same position as if no notice to treat had 
 been given. "^ The word " house " is construed liberally, 
 so as to include all that would pass on the conveyance 
 of a house, e.g-, a house, shrubbery, gardens and 
 orchards connected with it,' even though the house is 
 unfinished or in a ruinous state.* 
 
 ' Richmond v. N.L.R. Coy. (1868) 3 Ch. 678; Ystalyfera Iron Coy. 
 V. Neath, &c., Rly. Coy. (1873) 17 Eq. 142 ; Pinchin v. L. & Blackwall 
 Rly. Coy. (1854) 5 De M. & G. 851. 
 
 '■* Haynes v. Hayncs (1861) 1 Drew & Sm. 426. 
 
 ■^ /i..jj., under Lands CI. Cons. .\ct, 1845, sect. 92 ; and see infra, next 
 paragraph . 
 
 * E.g., Small HoldinKs and Allotments Act, 1908, sect. 39 (8) ; R. v. 
 Coniviissioncrs of Woods and Forcits (1850) 15 Q-B. 761. 
 
 •' Lands CI, Cons. Act. 1845, sect. 92: St. Tlionia.'i's Hospital v. 
 Charing Cro.'^s Rly. Coy. (\^b\) 30 L.J. Ch. 395; R. v. L.S.W. Rly. 
 Coy. (1848) 12 Q.B. 775; Richards v. Swansea Improvement Cov. 
 (1878) 9 Ch. D. 4"25. 
 
 « R. V. L.S.W. Rly. Coy., supra. 
 
 ' Hewson v. L.S. W. Rly, Coy. (1860) 8 W.R. 467 ; Salter v. Metrop. 
 Dist. Rly. Coy. (1870) 9 Eq. 432; cf. Steele v. Mid. Rly. Coy. (1866) 1 
 Ch. App. 275. 
 
 •• Alexander v. Crystal Palace Rly. Coy. (1862) 30 Beav. 556,
 
 SALES UNDER LANDS CLAUSES ACTS. 361 
 
 Whether premises are a '* manufaclory " or not 
 depends on the main use to which the premises are put,' 
 and it is then immaterial that part of the premises may 
 be used for other purposes or may be temporarily let 
 to another occupier." If the main business carried on is 
 not manufacture, it is immaterial that some manufacture 
 is carried on incidentalh- thereto.' 
 
 Section 4 — Assessment of Purchase-Price 
 AND Compensation. 
 
 General Pkinciple. — The provisions of the code as 
 to assessment of compensation are designed specially 
 to meet the case where the owner is under disability or 
 refuses to treat with the promoters ; the cases where the 
 promoters are able to acquire lands by agreement with 
 the owners do not need special notice here. Where land 
 is compulsorih- accjuired, its value must first be ascer- 
 tained, either bv arbitration or the verdict of a jur\-, 
 or in certain cases by a valuation.' The compensation 
 payable to the owner of the land or the person whose 
 interest in such land is acquired or affected is the loss 
 which such person may sustain in consequence of the 
 exercise of the promoters' powers,^ and this loss must be 
 ascertained as at the date of the service of the notice to 
 treat. "^ Interests in lands created after such date are not 
 a subject of compensation." In ascertaininc^ the value of 
 the land, all its potentialities and the actual use to which 
 it is put or might in the course of events and within a 
 reasonable time be put by the owner, must be considered 
 so that the purchase-price or compensation to be paid 
 
 ' Richards v. Swansea Improvement Coy. (1878) 9 Ch. D. 425. 
 
 ■^ See Sparrow v. Oxford, &c. Rlv- Cov. (1852) 2 De M. & G. 94 : 
 Spackmau v. G W R . Coy. (1855) 1 Jur. (N.S.) 790. 
 
 •'' Bcniiiiigfoii V. Mctrop. Board of Works (1886) 54 L.T. 837 : Rcdditi 
 V. Mctrop. Board of Works (1862) 4 De F. & J. 532. 
 
 * See Lands CL Cons. Act, 1845, sects. 22-62 : and see the Acquisition 
 of Land (Assessment of Compensation) .\ct, 1919. 
 
 ■'■ //)/(/., sects. 18, 68: Rickcfv. Mctrop. Rlv. Coy. (1865) L.J. O.B. 
 257. 
 
 8 Pcimv V. Penny (1867) 5 Eq. 227 ; Bwllfa, &c. Collieries v. Pout\- 
 pridd W'aterzcorks'Coy. (1903) AC 426 : Dawson v. G.N.R. Cov (1905) 
 1 K.B. 260. 
 
 ^ Johnson v. Hdfiwarc, ^'■■c. Rlv. Cov. (1866) 14 L.T. 45 : Wilkins v. 
 Birm. Corpn. (1883) 25 Ch. D. 78'; d.'Xick v London Tranru-avs. Ltd. 
 (1908) 2 K.B. 126.
 
 362 VEXDORS AND PURCHASERS. 
 
 approximates more or less to the price the owner might 
 obtain by baroaining with a purchaser in the open 
 market/ The amount of compensation payable is to 
 be tested by the vakie of the land to the owner and not 
 its value to the promoters ; whether the latter is greater 
 or less than the former value is immaterial." 
 
 Compensation for Injury by Severance — Where 
 part of an owner's land is taken, he may suffer damage 
 in consequence of the injury thereby caused to his 
 remaining lands. The code provides that in such cases 
 the owner is entitled to be paid compensation for damage 
 caused by such severance or injurious affection.^ It is 
 not necessary that the part taken and the part remaining 
 should be actuallv contiguous provided that the posses- 
 sion and control of each gives an enhanced value to all of 
 them/ The principle applies whether the severance be 
 as between two fields or as between the surface and the 
 minerals underneath/ All damage that can reasonably 
 be foreseen should be taken into account and must be 
 settled once and for all/ 
 
 Compensation for Mines and Minerals. — The term 
 lands, under the code, includes the mines and minerals 
 underneath. But when lands are acquired under the 
 provisions of the Railways Clauses Consolidation Act, 
 1845, the Waterworks Clauses Act, 1847, and the Public 
 Health Act, 1845 (Support of Sewers) Amendment Act, 
 1888, it is provided that the promoters shall not be 
 entitled to any mines of coal, ironstone, slate or other 
 minerals under any land purchased bv them, except only 
 such parts thereof as shall be necessarv to be dug or 
 carried away or used in the construction of the works, 
 
 I Inl. Rev. Commrs. v. Glasgow & S.W. Rly. Coy. (1887) 12 App. 
 Gas. 315 : and see Cooper v. Mefrop. Board of Works (1883) 25 Ch. D. 
 472; Bidder V. N. Staffs. Rly. Coy. (1S78) 4 Q.B.D. 412. 
 
 ■^ Stebbing v. Mctrop. Board of Works (1870) 6 Q.B. 37. 
 
 ■^ Lands CI. Cons. Act, 1845, sects. 49, 63. 
 
 ' Cooper- Essex v. Acton Local Board (1889) 14 App. Cas. 153 ; cf . 
 R v.-Kennedr (1893) 1 Q.B. 533; Bexlev Heath Rlv. Co. v. North 
 (1894) 2 g.B. 579. 
 
 •' City & S. London Rly. Coy. v. St. Mary. &c. United Parishes (1905) 
 AC. 1 : Errington v. Mctrop. Disf. Rly. Coy. (1882) 19 Ch. D. 559. 
 
 '■' Brogden v. Llynfi Rly. Coy. (1860) 30 L.J. C.P. 61 ; Broun v. Rlys. 
 Comnir. (1890) 15 App. Cas. 240; Mercer v. Liverpool. &c. Rlv. Coy. 
 (1904) A.C. 461 ; Croft v. L.N.W. Rly. Cov. (1863) 32 L.J. Q.B. 113; 
 Stone V. Yeovil Corpn. (1876) 2 C.P.D. 99.
 
 SALl£S UNDER LANDS CLAUSKS ACTS. '56::$ 
 
 unless the same shall have been expressly pui( hased ; 
 and all such mines, excepting as aforesaid, are deemed 
 to be excepted out of the conveyance of such lands, 
 unless the\' are expressly named therein and conveyed 
 thereby. ' If the minerals are required for the purposes 
 of the undertaking", thev ma\' be purchased with the 
 land or subsequently within the period limited for 
 the exercise of the promoters' statutory powers," or 
 they may be acquired for such purposes b}- agreement 
 at an\- time."* Whether a particular substance is or is not 
 a mineral depends on whether at the date of the con- 
 ACAance that substance was described as a mineral in the 
 ^•ernacular of the mining world, the commercial world, 
 and lando\vners; each case is a question of fact and 
 must be decided on its own circumstances."* 
 
 SeCTIOX 5 — COMl'LKTIOX AXP C'OXVEVAXCE. 
 
 Spi:cific Pereor.manck. — When notice to treat has 
 been served and the price or compensation has been 
 agreed upon or ascertained, the relation of vendor and 
 purchaser is then estal:)lished between the owners and the 
 ]:)romoters, and all the ordinary rules applicable to 
 agreements appl\-, unless the Special Act contains pro- 
 visions to the contrary.* Either the vendor or the pro- 
 moters may then enforce the contract specifically, but the 
 owner must show- a good title to the land and specific per- 
 formance will therefore be granted subject to his title 
 being investigated and proved.* 
 
 CO.MPLETIOX WHERE OWXER IX DeFAILT If the 
 
 owner refuses to accept tender of the purchase-money or 
 
 ' See Rly. CI. Cons. Act. 1845. sect. 77 : Wat. CI. Act, 1847. sect. IS; 
 I'ublic Health .\ct, 1845 (Support of Sewers) Amend. Act. 1883. 
 
 '' Ernii}<foii V. Mcfrop. Dist. RIv. (1882) 19 Cb. D. 559 : Re Ccnnd 
 iiiul L.X.W. Rly. Coy. (1895) 1 Q.B. 459. 
 
 ■' Thompson V. Hick-iiinii (1907) 1 Ch. 550. 
 
 * See North Brit. Rly. v. Butihill,&c. Coy. (1910) AC. lir. : G.W.R. 
 Cov. V. Carpiilla Clay Coy. (1910) AC. S3 .'Cal. Rlv. Cow v. Glenboifi, 
 &c. Coy. (1910) Sess. Cas. 951 : Sviuhintou v Cdl. Rlv. Cov. (1912) 
 AC. 87. 
 
 ■ See Rci^cnt s Cuiml Co. v. Ware (1857) 2i Beav. 575. 
 
 '■■ Adiuns V. London & BUicku-itll Rly. Coy. (1850) 2 Mac. & G. 118; 
 (.jitnston \\ East Gloticestcisliirc Rly. Coy. (1868) IS L.T. S : and see 
 Hast London Union v. Mctiop. Rlv Cov (1869) 4 E.\cli. 309; Re Can- 
 Klu-es' Contract (1906) 2 Cii. 143.'
 
 364 VENDORS AND PURCHASERS. 
 
 compensation, or neglects or fails to make out a title to 
 the satisfaction of the promoters, or if he refuses to 
 convey or release the lands as directed by the promoters, 
 the promoters mav then deposit the purchase-money or 
 compensation in the Bank of England in the name and 
 with the privitv of the Pavmaster-General for and on 
 behalf of the High Court, to be placed to his account 
 there for the benefit of the parties interested in the lands 
 subject to the control and jurisdiction of the Court. The 
 promoters may then, if they think fit, execute a deed poll 
 vesting in themselves all the estate and interest of, or 
 capable of being held or conveyed by, the owner in the 
 land, and as against him and all parties in whose behalf 
 the Act enables him to sell, the promoters will then be 
 entitled to immediate possession.* 
 
 See Lands CI. Cons. Act, 1845, sects. 75-77.
 
 CHAPTHK' 1\. 
 SALES uxdi:k disikain is |-()k ki:.\ 1. 
 
 Origin of Rk;ht. — At (oiniiion law, a distress wa.s 
 only a pledge in the hands of the distrainor, and with 
 the apparent exception of a distress upon sheaves of 
 corn and growing" crops, in which cases a sale has been 
 held to be compidsory' — it may still be treated as a 
 pledge, since the statute under which the right of sale 
 first arose has been held to be inerelv permissive." I>in 
 the remedy of distress may always be controlled b\ 
 agreement between the parties/' The full right of sale. 
 however, is not lost or curtailed by any such agreement 
 unless it clearly appears that such was tin* intention 
 of the parties/ 
 
 Notice of Distress. — Whenever a .sale of the goods 
 distrained is intended, notice of distress must always be 
 given to the tenant in writing;^ and the notice must 
 inform the tenant w^hat are the goods taken.' U.sually 
 the notice is subjoined to a copy of an inventory of the 
 goods distrained; and the distress mtist be (^onfined to 
 the articles comprised in the inventory." .An omission 
 to give the proper notice does not, however, render the 
 distress illegal, and a mere defect or error in it will 
 be immaterial.* Usually, the notice specifies the amount 
 
 ' See Skle of Distresses Act (2 W. & M. Sess. 1. c. 5.). sect. 3 ; Distress 
 for Rent Act (11 C^eo. 2, c. 19), sect. 8 : Law of Distress Amendment 
 Act. 1888, sects. 5 and 6 ; Wilson v. Ducket, 2 Mod. 61 ; Simpson \. 
 Hartopp, 1 Sm. L.C. 437; Bclasysc \. Biirl>riiif>e, 1 Lutw. JIJ ; Clml: 
 V. Gaskarth, 8 Taunt. 431 ; Piggott v. Births, 1 M. & W. 44S. 
 
 - Sale of Distresses Act. sect. 2 ; Pliilpott v. Lcluiin. 35 L.T. 855 . 
 Hiidd V. Ravenor, 2 B. & B. 662. 
 
 ' Giles V. Spencer, 3 C.B. N.S. 244 ; UV/.s7i v. Rose, 6 liing. 638; 
 GoHgh V. Wood (1894), 1 Q.B. 713 ; Horsford v. Webster, 1 CM. dt K. 
 696 ; Miles v. Fnrber, 8 Q.B. 77 ; Rape v. Westucott (1894). 1 y.B. 272. 
 
 ' Welsh V. Rose, supra ; Ex parte Bull 18 O.B.D. 642. 
 
 •^ See Sale of Distresses Act. sect. 2 ; Kerby v. Harding, 6 E.xcli. 240 . 
 Wilson V. Nightingale, 8 Q.B. 1034. 
 
 •^ Kerby v. Harding, supra; Wakenuin \. Lindsey, 14 Q.B. 625. 
 
 ' Sims V. Tuffs, 6 C. & P. 207 ; Bishop v. Bryant, ibid. 484. 
 
 - Distress for Rent Act. sect. 19 ; Trent v. Hunt. 9 Exch. 14 ; Worth x 
 V. Gregory 2 Y. & J. 536; Ganibrell v. Falmouth. 4 A. & E. /3
 
 ♦366 VENDORS AND PURCHASERS. 
 
 of rent in arrear, but as this is presumed to be within 
 the tenant's own knowledge, the distrainor is not bound 
 to state this amount, and if an amount is stated, an 
 error in the amount is immaterial.' 
 
 Appraisement. — Except in the case of growing crops, ' 
 appraisement of the goods distrained is now never neces- 
 sar}' before sale except on a special request made by the 
 tenant or the owner of the goods.'' Where it is resorted 
 to, the appraisers must be competent and disinterested 
 though not necessarily professional persons,' and the 
 tenant is not precluded by such appraisement from after- 
 wards questioning whether the best means have been 
 taken to make it.* Except by consent of the tenant, two 
 appraisers must be appointed. *" The distrainor himself 
 cannot act as an appraiser.' The appraisement is usuallv 
 written on the inventory and signed bv the appraisers, 
 and stamped with the appropriate stamp.* The expenses 
 of appraisement are to be paid by the tenant or owner 
 who requires it. 
 
 Time of Sale. — If the goods have not been replevied.' 
 the sale may take place five days after the taking of the 
 distress and delivery of the notice. ^J' This means that 
 five clear days must intervene;" but such five days are 
 now to be extended upon the request of the tenant or the 
 owner of the goods to fifteen. "^^ A premature sale, though 
 
 1 Tancrcd v. Lcyland, 16 Q.B. 680 ; Glyn v. Thomas, 11 Exch. 870. 
 
 ■^ See Distress for Rent Act, sect. 8. 
 
 •■' Messing v. Keinble, 2 Camp. 115 ; Bishop v. Bryant, 6C. & P. 484 ; 
 and Law of Distress Amendment Act, 1888, Sect. 5. 
 
 * See Rodcn v. Eyton, 6 C.B. 427. 
 
 '' Clarke v. Holford, 2 C. & K. 540 ; Cook v. Corbctt, 24 W.R. 181. 
 
 6 See Sale of Distresses Act. sect. 2 ; Allen v. Flicker, 10 A. & E. 640. 
 
 7 Westwoodv. Cowne, 1 Stark 172: Rocke v. Hills, 3 T.L.R. 298; 
 Lyon V. Wei don, 2 Bing. 334. 
 
 " See Stamp Act, 1891, sect. 24, and 1st Sched. 
 
 ^ " Replevin " is the name given to the process by which the owner 
 of goods distrained obtains their re-delivery upon giving security to try, 
 by action, the right of distress, and to restore them if the action goes 
 against him ; and see County Courts Act, 1888, and County Court 
 Rules. 
 
 '" See Sale of Distresses Act, sect. 2. 
 
 " Robinson v. Waddington, 13 O-B. 753 : Sharpe v. Fowle, 12 
 <2.B.D. 385. ■ 
 
 '2 See Law of Distress Amendment Act, 1888, sect. 6.
 
 SALES LXPER DISTR.\IXTS FOR REM . U, 
 
 irregular, does not make the distress illegal, and the 
 lenant is not entitled in such a case to recover in respei t 
 of it unless he suffers actual damage.' The distrainor 
 has a reasonable time after the lapse of the five (or 
 fifteen) days in which to sell and remove the goods,' but 
 if he exceeds such time he becomes a trespasser, unless 
 the tenant requests or consents to a postponement of the 
 sale/ 
 
 Place of Sale. — Whether the goods are impounded* 
 on or off the premises, the tenant or owner of the goods 
 may, by written request for the purposes of sale, '''have 
 them removed at his own risk and expense to a public 
 auction room or some other fit or proper place specified 
 by him : but there seems to be nothing in the provisions 
 of the Distress for Rent Act* to prevent the landlord 
 from removing the goods, if he so pleases, in order to 
 sell them. 
 
 Parties to Sale. — The vendor is the distrainor;' the 
 purchaser must be some third f)erson; the landlord 
 cannot purchase the goods himself* even at a sale bv 
 public auction.' 
 
 Mode of Sale. — The sale need not necessarily be by 
 auction, nor need the goods be disp)osed of in anv par- 
 ticular order. 
 
 Effect of Sale. — The sale of the goods by transfer- 
 ring the ownership, puts an end to the right to reple\y 
 
 * Distress for Rent Act. sect. 19; see Pmudloix v 
 
 Cr. & M. 326: Lucas v. Tarleton, 3 HAN. 116: and see L>tMre» tor 
 Rent Act. sect. S; Chcen \. Legh, 3 B. & A. 470: Rodgers v Parker. 
 18 C.B. 112. 
 
 ^ Pitt V. Shav. 4 B. & A. 208. 
 
 ' Grimn v. Scott. 1 Ld. Ray. 1424; 'i. v Sh 
 
 East 395 : Hills v. Street. 5 Bing. 37 : ;■ v ffcjiv 
 
 B. & C. 821. 
 
 * Impounding the distress is placing it within custody of the law 
 ^ See Law of Distress Amendment Act. 1888. sect 5. 
 
 * See sect. 10 : but see Piggott v. BirtUs. 1 M. & W. 448. 
 ' See Sale of Distresses .\ct, sect. 2. 
 
 * King V. England. 4 B & 5. 782 ; Plasycoed ColUcries Co. r. Part- 
 ridge (1912) 2 K.B. 345. 
 
 * Moore v. Singer Mfg. Coj. (1904) 1 K.B. 820.
 
 368 VENDORS AND PURCHASERS. 
 
 them ^ The purchaser acquires a good title to the goods 
 even though the sale has been conducted irregularly,* 
 but not if the sale is altogether wrongful." 
 
 Price. — The best price must be obtained for the 
 goods/ Any negligence or mismanagement during the 
 conduct of sale, e.g., not lotting the goods properly, or 
 allowing them to become damaged by weather, or selling 
 subject to a condition which lowers the price obtained, 
 will support a claim for not selling at the best price. ^ 
 
 Overplus. — Any overplus there may be from the sale, 
 after satisfaction of the rent and expenses, should be left 
 in the hands of the sheriff, under-sheriff, or constable, 
 for the owner's use.° 
 
 ' See Jacob v. Iving, 5 Taunt. 451 ; Moore v. Pyrlcc, 11 East 52. 
 
 -' Lyon V. Weldon, 2 Bing. 334 ; Distress for Rent Act, sect. 19. 
 
 ■' Harding v. Hall, 14 L.T. 410 ; King v. England. 4 B. & S. 782. 
 
 * Sale of Distresses Act, sect. 2. 
 
 ■'■ See Poynterv. Buckley. 5 C. & P. 512; Ridgway v. Stafford. 6 
 Exch. 404; Nix v. Fitzwilliain, 9 J. P. 212; Hazckins v. Walrond, 
 1 C.P.D. 280. 
 
 '' Sale of Distresses Act, sect. 2.
 
 APPENDICES. 
 
 24
 
 APPENDIX A. 
 
 FORMS. 
 I. 
 
 PARTICULARS OF A FREEHOLD ESTATE. 
 
 Ihe several freehold pieces or parcels of land or ground situate 
 at S., in the county of Y. [delineated in the plan in the margin 
 hereof, or], containing by estimation acres, more or 
 
 less, called or known by the several names of , and now 
 
 •in the occupation of 
 
 The property is subject to a fee farm ronl, payable to the 
 lord of the manor of , [or to a mortgagee in fee {or by 
 
 demise for a term of years), by indenture dated , and 
 
 made between and , for securing the payment of 
 
 ;t jjrincipal sum of £ and interest, which principal sum 
 
 of £ , with interest thereon from , is to be paid 
 
 and discharged by the purchaser]. 
 
 IL 
 
 PARTICULARS OF CROWING TIMIUIR. 
 
 [50Uj oak trees and [300] elm trees, marked with , and 
 
 now standing in or upon the farm and land [woods and grounds] 
 hereinafter mentioned, that is to say : 
 
 III. 
 
 CONDITIONS OF SALE OF REAL ESTATE. 
 
 1. A l-KiiKHOI.D OR COPVUOLD KSTATK IN ONE LOT. 
 
 L No person shall advance less than £ at a bidding; 
 
 .md no bidding shall be retracted. 
 
 2. There will be a reserve price, and llie vendor reserves 
 the right to bid hv Iiimself or his agent. 
 
 a. The highest bidder shall be the purchaser; and if any 
 dispute shall arise resix.'cting a bidding, the property shall be 
 [Hit up again at the last undisputed bidding, or the auctioneer 
 may deal with the dispute as he shall think lit.
 
 372 APPENDIX A. 
 
 4. Imnifdiately after the fall of the hammer the purchaser 
 shall pay to the auctioneer [or, to Mr. , the vendor's 
 solicitor) a deposit of £ per cent, upon the amount of 
 the purchase-money, and sign the subjoined agreement. 
 
 5. The title to the proj^erty shall commence with an indenture 
 dated , being a conveyance upon a sale [or being a mort- 
 gage]. 
 
 6. The purchaser shall require no other evidence of the 
 identity of the property ]jurchased with the property described 
 in the deeds and other documents offered by the vendor- as the 
 title, than a statutory declaration, to be made, if required, at the 
 purchaser's expense, that the. property has been enjoyed consis- 
 tently with the title for the last twenty years. 
 
 7. The purchaser shall send his objections and requisitions, if 
 any, in respect of the title and the abstract, particulars and 
 conditions, and anything appearing therein respectively to the 
 vendor's solicitor within days from the delivery of the 
 abstract, and in this respect time shall be of the essence of the 
 contract ; and in default of, or subject to, any such objections 
 and requisitions, he shall be deemed to have accepted the title. 
 If he shall insist upon any objection or requisition which the 
 vendor shall be unable or shall not think fit to remove or comjjly 
 with, the vendor may, notwithstanding any negotiation or litiga- 
 tion upon the subject of such objection or requisition, or any 
 attempt to remove or comply with the same, by notice in writing 
 rescind the sale ; in which case he shall return to the purchaser 
 the deposit without any interest, costs or other payment. 
 
 8. The remainder of the purchase-money sliall be paid, and 
 the purchase completed, on the day of next at the 
 office of Mr. , the vendor's solicitor; and if from anv 
 cause whatever the purchase shall not be completed on that dav 
 the purchaser shall pay to the vendor interest on the unpaid 
 purchase-money at the rate of £ per cent, per laiiiiini from 
 that day until the completion of the i:)urchase. 
 
 9. The purchaser shall be entitled to possession of the property 
 from the said day of next, up to which time all 
 outgoings shall be cleared by the vendor ; and all current rents and 
 outgoings shall be a|;j)ortioned for the purpose of this condition. 
 
 10. Upon ]jayment of the residue of the purchase-mone}' at 
 the time and place aforesaid, the vendor shall make and execute 
 to the i)urchaser a pro])er assurance of the property, such assur- 
 ance to be prepared by and at the e.xpense of the ]iurchaser, and 
 to be left by him for execution at the said office not less than 
 seven davs before the said dav of next.
 
 API'KNDIX A. 373 
 
 11. riu' pr()|JC'ily is sold subject to cxistinj^ tcnjiniies and to 
 all easements, if any, affertinj; the same, wlieiher mentioned in 
 the partirulars or not. 
 
 12. The quantities stateil in the |iaitii iilars are believed and 
 shall be taken to be eoi-rect ; and if any error shall be discovered 
 in the particulars before the completion of the purchase, but not 
 afterwards, com|)ensation shall be made in res|X!ct thereof by the 
 vendor or by the purchaser, as the case may require, the amount 
 of such comix^nsation to be settled, in case of difference, by two 
 referees, one to be apjjointed by each party, or by an innpire to 
 be appointed by two referees before they proceed in ihc reference. 
 [But this condition shall not ])reju(licc the ritiiil nf tlie vendor 
 to rescind under Condition 7|. 
 
 13. If the purchaser shall neglect or fail to comply with anv 
 of the above conditions, his deposit shall be forfeited, and the 
 vendor shall be at liberty to re-.sell the property at such time 
 •and in such manner as he shall think fit, with or without notice 
 to the purchaser at the present sale ; and any deficiency of price 
 resulting from the re-sale, and all exjxMises attending the same, 
 shall immediately after such re-sale be made good by the defaulter 
 at the pre.sent sale, and in case of non-])ayment shall be recover- 
 able by the vendor as liquidated damages. 
 
 2. .SPIXIAI, CONDITIONS. 
 
 (1) Fixtures, etc., to be paid for separately. 
 
 The [fixtures of eveiT description and the] timber and other 
 trees, pollards, stands, saplings, and underwood upon the pro- 
 perty, down to and including those of the value of Is. each [and 
 the crops, manure, and straw], shall be taken by the purchaser 
 at a valuation, and he shall pay for the same in addition to 
 the purchase-money bid by him at the sale. The valuation shall 
 be made by two referees, one to be chosen by each party, or their 
 umpire. Each partv shall ajjpoint a referee and give notice 
 thereof in writing to the other party on or before the day 
 
 of ne.xt, and the referees shall, before they begin to act, 
 
 appoint an umpire in writing. In case either party shall neglect 
 or refuse to appoint a referee, or to give such notice within the 
 time specified, or if the referee appointed by either party shall 
 neglect or refuse to act, the referee appointed by the other party, 
 if duly notified, shall make a final valuation alone. If no such 
 valuation as aforesaid shall be made, the said [fixtures and] 
 trees, etc. [and crops, manure, and straw], shall be paid for by 
 the purch?iser at their fair value.
 
 374 APPENDIX A. 
 
 (2) Farming Stock and Crops. 
 The purchaser shall pay by valuation, as below provided, for 
 the tillage of the summer lands ; for seed, sowing and hoeing 
 of turnips ; for all hay and straw left on the premises which 
 shall be stacked in the usual places ; for all fuel and after grass 
 on the pastures and stubbles ; for all clover and other seeds, 
 and for sowing, harrowing, and cultivating the same, with the 
 spring crops ; for muck inixtures and composts, and for labour 
 in turning over such as shall not be carted on the land, and for 
 the carting, when carted on the land ; and also for all such 
 other matters and things as are customary to be allowed and 
 paid by an incoming to an outgoing tenant. The present year's 
 corn and crops are to be laid in the barn, or stacked on the 
 premises : The purchaser shall pay for threshing and dressing, 
 and getting in the stacks, and canying the corn, when dressed, 
 to market, not exceeding the distance of , etc., and have 
 
 the straw, chaff and calder arising therefrom, the vendor appoint- 
 ing the threshers and having the use of the barns and barn-yards 
 up to the dav of for that purpose. 
 
 (3) Covenant by Trustee. 
 The vendor being a trustee [or a mortgagee selling under a 
 power of sale] will give only the statutory covenant implied by 
 his being expressed to convey as trustee [or mortgagee]. 
 
 IV. 
 MEMORANDUM OX SALE BY AUCTION. 
 
 I, , of , hereby acknowledge that I have this 
 
 day purchased [lot of] the property described in the above 
 
 [or within] particulars, subject to the above [or within] condi- 
 tions at the price of •£ , and have paid to 
 
 the sum of £ by way of deposit and in part 
 
 payment of the purchase money ; and I hereby agree with C. D., 
 the vendor, to complete the purchase in accordance with the said 
 conditions. 
 
 As witness my hand this day of , 19 . 
 
 [Purchaser's signature.] 
 
 £ s. d- 
 Purchase-money ..... 
 
 Deposit paid ...... 
 
 Balance due ... £ 
 
 As agents for the said C. D. we ratify the sale; and as stake- 
 holders we acknowledge the receipt of the deposit. 
 
 [Auctioneers' signature.]
 
 APPENDIX B. 
 
 STATUTES. 
 
 AUCTIONEERS ACT. 1845. 
 (,"? o- 9 Vict., c. 15) (a). 
 
 1. [Repeal of auction duties s«ranted by 6 Geo. IV. c. 81.] 
 
 2. There shall be raised, levied, collected and paid to Her 
 Majesty the following annual sum or duty of excise, that is to 
 say, for and upon every licence to be taken out by every person 
 exercising or carrving on the trade or business of an auctioneer 
 in any part of the United Kingdom, the sum of ten pounds. 
 
 3. That the said duty hereby imposed shall be under the manage- 
 ment of the commissioners of excise (b), and shall be collected, 
 paid, and accounted for in the same manner as other the duties 
 of excise, and shall be charged, raised, levied sued for and paid 
 under the provisions of this Act, and the general or special pro- 
 vision.^, clauses, enactments, regulations, pains, penalties, and 
 forfeitures contained in any Act or Acts relating to the collection 
 and management of the revenue of excise ; and all penalties by 
 this Act imposed shall be prosecuted, recovered, and applied as 
 any other penalties under the laws of excise. 
 
 4. That every person who exercises or carries on the trade or 
 business of an auctioneer or who acts in such capacity at any sale 
 or roup, and everv person who sells or offers for sale any goods 
 or chattels, lands, tenements, or hereditaments, or any interest 
 therein at any sale or roup where any person or persons become 
 the purchaser of the same by competition and being the highest 
 bidder, either by being the single bidder, or increasing upon the 
 biddings made by others, or decreasing on sums named by the 
 auctioneer or person acting as auctioneer, or other person at 
 such sale, or by any other mode, of sale by competition, rhall 
 (except as hereinafter in this Act mentioned) be deemed to 
 carry on the trade or business of an auctioneer and shall be 
 required to take out such licence as by this Act directed ; and 
 
 <</) Such parts of the Act as have been repealed by the Statute Law Revision Acts of 
 
 1875 and 1891 are omitted. 
 th) The powers are now exercised by the Commissioners of Inltnd Revenue.
 
 •376 APPKXDIX B. 
 
 every such licence shall be renewed annually ten days at least 
 before the expiration thereof, on the fifth day of July in each and 
 every year; and every auctioneer having had such a licence 
 who continues to carry en the trade or business of an 
 auctioneer in the year next ensuing the expiration thereof, 
 and omits to renew the same as aforesaid, and every person who 
 carries on the trade or business of an auctioneer as aforesaid, 
 without taking out such licence as by this Act directed, shall (ex- 
 cept as hereinafter in this Act mentioned") forfeit one hundred 
 pounds : Provided always that on every such licence taken out 
 after the said fifth day of July, at whatever period of the vear, the 
 full duty of excise by this Act imposed shall be paid, any other Act 
 or Acts to the contrary thereof notwithstanding. 
 
 5. That it shall not be necessary for any person selling anv 
 goods or chattels by auction in any of the cases hereinafter men- 
 tioned to take out the licence by this Act required : Any person 
 selling any goods or chattels by auction under a distress for non- 
 payment of rent or tithes to less amount than twenty pounds ; or 
 under authority of 6 Geo. IV., c. 48, 7 Will. IV. & 1 Vict. c. 41, 
 j)r under authority of any other Act or Acts of Parliament now in 
 force in which the like exemption as bv the Act specified is given 
 to the proper officer of court executing the process of such courts 
 to sell the effects seized by him by auction, without taking out 
 or having any licence as an auctioneer, provided the sum for 
 which such process is enforced is under twenty pounds. 
 
 6. Jhat [certain Acts of Parliament by which it is required that 
 a separate and distinct licence shall be taken out by any auctioneer 
 selling by auction gold oi silver plate or patent medicines, or any 
 other articles, are repealed ; and] any auctioneer having at the 
 time in force a licence on which the duty under the provisions ot 
 this Act has been paid may sell by auction any such propci ty, 
 goods or commodities, without taking out any other licence in 
 such respect, finy other .Act or Acts to the contrary thereof not- 
 withstanding. 
 
 7. That every auctioneer, before beginning any auction shall 
 aflRx or suspend, or cause lo be affixed or suspended, a ticket or 
 board containing his true and full Christian and surname and 
 residence, painted, printed, or written in large letters, publicly 
 visible and legible, in some conspicuous part of the room or place 
 where the auction is held, so that all persons may easily read 
 the same, and shall also keep such ticket or board so affixed or 
 suspended during the whole time of such auction being held; and 
 if any auctioneer begins any auction, or acts as auctioneer at any 
 auction, in any room or place where his name and residence is
 
 APPENDIX B. ;{T7 
 
 not so paiiKtHl or written on a ticket or Ixiartl so aftlxcd or sus- 
 pended, and ke|)t affixed or sus|)ended as aforesaid he shall fo fi-ii 
 for every such t)ffence the sum of twenty pounds. 
 
 8. That, if any person actin<4 as an auctioneer, and by tiiis Act 
 required to take out a licence as a person exercising or carrvinj^ 
 on the trade or business of an auctioneer, does not at the time of 
 any sale by auction, on demand of any officer of excise or customs, 
 or any officer of stamps and taxes, produce and show to such 
 officer a proper licence to him j^ranted under this Act, ami then in 
 force, or does not immediately deposit with such officer the sum 
 of ten pounds, every such person may be arrested and detained bv 
 any officer of the peace, as hereinafter mentioned ; and everv 
 officer of the peace shall, at the request of any such officer as 
 first aforesaid, at the termination of such sale, or sooner, if c m- 
 venient, arrest and convey such jjerson before some one of lUr 
 Majesty's justices of the peace, of the county or place where such 
 sale has been held, and such justice shall examine into the fact 
 or facts charged, and upon proof, either by confession of the 
 j)arty offending or by the oath of one or more credible witness 
 or witnesses (which oath the said justice is hereby empowered 
 to administer), that the person so brought before him did act as 
 an auctioneer as f^foresaid, and did not produce such licence, or 
 deposit such sum of money as aforesaid, shall, by warrant under 
 his hand, commit such C'ffender to the common gaol or house of 
 correction for the county or place where the said sale has been 
 held, for any time not exceeding one calendar month from the 
 day of such commitment , and no such imprisonment, nor the 
 deposit of such sum of money as aforesaid, shall in any 
 manner prejudice or affect any proceeding afterwards insti- 
 tuted for recovery of the penalty incurred by such person 
 for acting as auctioneer at such sale as aforesaid without 
 the licence by this Act directed ; but if any person having so de- 
 posited such sum of money as aforesaid, at any time before the 
 expiration of one week from the date of such sale as aforesaid, 
 produces to the officer with whom he deposited the same a proper 
 licence to him granted and in force as an auctioneer before and at 
 such sale everv such officer shall immediately thereu])on repay to 
 jsuch person the full sum so deposited with him ; if otherwise, every 
 such officer shall, at the expiration of the said week, account for 
 all such money to the commissioners of excise, or such person as 
 thev may appoint to receive the same.
 
 ;178 APPENDIX B. 
 
 II. 
 
 SALE OF LAND BY AUCTION ACT, 1867. 
 {JO c- SI Vici. c. J,8.) 
 
 An Act for atueruUug tlie laiv of aitctiois of Estates. 
 
 [loth July, 1867. 
 
 1. This Act may be cited for all purposes as " The Sale of 
 Land by Auction Act, 1867." 
 
 2. [As to commencement of Act.] 
 
 3. " Auctioneer " shall mean any person selling by public 
 auction any land, whether in lots or otherwise : 
 
 " Land " shall mean any interest in any messuages, lands> 
 tenements, or hereditaments, of whatever tenure : 
 
 " Agent " shall mean the solicitor, steward, or land agent of 
 the seller : 
 
 " Puffer " shall mean a person appointed to bid on the part 
 of the owner. 
 
 4. And whereas there is at present a conflict between Her 
 Majesty's courts of law and equity in respect of the validity of 
 sales by auction of land where a puffer has bid, although no 
 right of bidding on behalf of the owner was reserved, the courts 
 of law holding that all such sales are absolutely illegal, and the 
 courts of equity under some circumstances giving effect to them, 
 but even in courts of equity the rule is unsettled ; and whereas 
 it is expedient that an end should be put to such conflicting and 
 unsettled opinions : be it therefore enacted that, from and after 
 the passing of this Act, whenever a sale by auction of land would 
 be invalid at law by reason of the employment of a puffer, the 
 same shall be deemed invalid in equity as well as ati law. 
 
 5. [And whereas, as sales of land by auction are conducted, 
 many of such sales are illegal, and could not be enforced against 
 an unwilling purchaser, and it is expedient for the safety of 
 both seller and purchaser that such sales should be so conducted 
 as to be binding on both parties : be it therefore enacted by the 
 authority aforesaid as follows : that] (a) the particulars or con- 
 ditions of sale bv auction of any land shall state whether such 
 land will be sold without reserve, or subject to a reserved price, 
 or whether a rijjht to bid is reserved. If it is stated that such 
 
 la) The words within brackets [ ] have been repealed-
 
 I
 
 .\im'i:m)|.\ h. 'M'.i 
 
 land will be sold willuiul rescivu, or tu thai ftfctt, tht-n il ^liall 
 nut be lawful for the seller to employ any person to bid at such 
 sale, or for the auctioneer to take knowingly any bidding from 
 any such person. 
 
 6. And where any sale by auction of land is declared either 
 in the particulars or conditions of such sale to be subject to a 
 right for the seller to bid, it shall be lawful for the seller or 
 anv one person on his behalf to bid at such auctions in such 
 manner as he may think proper. 
 
 7. And whereas it is the long-settled practice of courts of 
 equity in sales by auction of land under their authority to 0]x;n 
 biddings, even more than once, and much inconvenience has 
 arisen from such practice, and it is expedient that the courts of 
 equity should no longer have the power to open biddings after 
 sales by auction of land under their authority : be it further 
 enacted by the authority aforesaid that the practice of opening 
 the biddings on any sale by auction of land under or by virtue 
 of any order of the High Court of Chancery shall, from and 
 after the time appointed for the commencement of this Act, be 
 discontinued, and the highest bona fide bidder at such sale, pro- 
 vided he shall have bid a sum equal to or higher than the reserved 
 price (if anv), shall be declared and allowed the purchaser, unless 
 the court or judge shall, on the ground of fraud or improper 
 conduct in the management of the sale, upon the application of 
 any person interested in the land (such application to be made 
 to the court or judge before the chief clerk's certificate of the 
 result of the sale shall have become binding), either open the 
 biddings, holding such bidder bound by his bidding, or discharge 
 him from being the purchaser, and order the land to be re-sold 
 upon such terms as to costs or otherwise as the court or judge 
 shall think fit. 
 
 8. Except as aforesaid, nothing in this .Vet contained shall 
 affect any sale of land made under or by virtue of any order 
 of the High Court of Chancery in England, of the High Court 
 of Chancerv in Ireland, or of the Landed Estates Court there, 
 or of the Court of Chancery in the County Palatine of Lancaster, 
 or of any countv or other court having jurisdirtimi in equity. 
 
 9. This .\ct shall not extend to Scotland.
 
 380 APPENDIX B. 
 
 III. 
 
 FACTORS ACT, 1889. 
 {S2 &-■ 53 Vict. c. 45.) 
 
 All Act to amend mid consolidate the Factors Acts. 
 
 [26th August, 1889. 
 PreJiniinary. 
 1. For the purpose of this Act — 
 
 (1.) The expression " mercantile agent " shall mean a 
 mercantile agent having in the customary course of his 
 business as such agent authority either to sell goods, 
 or to consign goods for the purpose of sale, or to buy 
 goods, or to raise money on the security of goods : 
 
 (2.) A person shall be deemed to be in possession of goods 
 or of the documents of title to goods, where the goods 
 or documents are in his actual custody or are held by 
 any other person subject to his control or for him or on 
 his behalf : 
 
 (3.) The expression " goods " shall include wares and mer- 
 chandise. 
 
 (4.) The expression " document of title " shall include any 
 bill of lading, dock warrant, warehouse-keeper's certifi- 
 cate, and warrant or order for the delivery of goods, and 
 any other document used in the ordinary course of 
 business as proof of the possession or control of goods, 
 or authorising or purporting to authorise, either by 
 endorsement or b}' delivery, the possessor of the document 
 to transfer or receive goods thereby represented : 
 
 (5.) The expression " pledge " shall include any contract 
 pledging, or giving a lien or security on, goods, whether 
 in consideration of an original advance or of an}' further 
 or continuing advance or of any pecuniary liability : 
 
 (6.) The ex])ression " person " shall include any body of 
 persons corporate or unincorporate. 
 
 Dispositions by Mercantile Agents. 
 2. — (1.) Where a mercantile agent is, with the consent of the 
 owner, in possession of goods or of the documents of title to 
 goods, any sale, pledge, or other disjiosition of the goods, made 
 by him when acting in the ordinary course of business of a 
 mercantile agent, shall, subject to the |jrovisions of this Act, 
 be as valid as if he were expressly authorised by the owner of
 
 aim'i:m»ix m. ;J,SI 
 
 the _<4t)ucls tu inaki' llit- same : prnvidi'd that the person taUin;^ 
 under the disposition acts in good faith, and lias not at the time 
 of the dis])osition notice tiiat the person maUinj^ the dispt)silion 
 
 lias nut authority to make the same. 
 
 (2.) Where a mercantile agent has, with the consent of the 
 owner, been in possession of goods or of the documents of title 
 to goods, any sale, pledge, or other disposition, which would 
 have been valid if the consent had continued, shall be valid not- 
 withstanding the determination of the consent : provided that 
 tiie person taking under the disjiosition has not at the time 
 lliereof notice that the consent has been (U-tt-rmined. 
 
 (3.) Where a mercantile agent has obtained possession of any 
 documents of title to goods by reason of his being or having 
 been, with the consent of the owner, in jjossession of the goods 
 represented thereby, or of any other documents of title to the 
 goods, his possession of the first-mentioned documents shall, for 
 the purposes of this Act, be deemed to be with the consent of the 
 owner. 
 
 (4.) For the purposes of this Act the consent of the owner shall 
 be presumed in the absence of evidence to the contrary. 
 
 3. A pledge of the documents of title to goods shall be deemed 
 to be a pledge of the goods. 
 
 4. Where a mercantile agent pledges goods as security for a 
 debt or liability due from the pledgor to the pledgee before the 
 time of the pledge, the pledgee shall acquire no further right to 
 the goods than could have been enforced by the pledgor ;it the 
 time of the pledge. 
 
 5. The consideration necessary for the \alidily of a sale, pledge, 
 or other disposition, of goods, in pursuance of this Act, may be 
 either a ])aynient in cash, or the delivery or transfer of other 
 goods, or of a document of title to goods, or of a negotiable 
 security, or any other valuable consideration ; but where goods 
 are pledged bv a mercantile agent in consideration of the delivery 
 or transfer of other goods, or of a document of title to goods, 
 or of a negotiable securit}-, the pledgee shall acquire no right 
 or interest in the goods so pledged in excess of the value of the 
 goods, documents, or securitv when so delivered or transferred in 
 exchange. 
 
 6. For the purposes of this .\ct an agreement made with a 
 mercantile agent through a clerk or other person authorised in 
 the ordinarv course of business to make contracts of sale or 
 pledge on his behalf shall b<- deemed to be an agreement with the 
 a£*ent.
 
 382 APPEXDIX B. 
 
 7. — (1) Where the owner of goods has given possession of the 
 goods to another person for the purpose of consignment or sale, 
 or has shipped the goods in the name of another person, and the 
 consignee of the goods has not had notice that such person Is not 
 the owner of the goods, the consignee shall, in respect of advances 
 made to or for the use of such person, have the same lien on the 
 goods as if such person were the owner of the goods, and may 
 transfer anv such lien to another person. 
 
 (2.) Nothing in this section shall limit or affect the validity of 
 anv sale, pledge, or disposition by a mercantile agent. 
 
 Disposiiioij by Sellers atui Buyers of Goods. 
 
 8. Where a person, having sold goods, continues, or is, in pos- 
 session of the goods or ( f the documents of title to the goods, the 
 deliverv or trasfer by that person, or by a mercantile agent acting 
 for him, of the goods or documents of title under any sale, pledge, 
 or other disposition thereof, or under any agreement for sale, 
 pledge, or other disposition thereof, to any person receiving the 
 same in good faith and without notice of the previous sale, shall 
 have the same effect as if the person making the delivery or 
 transfer were expresslv authorised bv the owner of the goods to 
 make the same. 
 
 9. Where a person, having bought or agreed to buy gOvjds, 
 ■obtains, with the consent of the seller, possession of the goods or 
 the documents of title to the goods, the delivery or transfer, by 
 that person or by a mercantile agent acting for him, of the goods 
 or documents of title, under any sale, pledge, or other disposition 
 thereof, or under anv agreement for sale, pledge, or other dis- 
 position thereof, to any person receiving the same in good faith 
 and without notice of anv lien or other right of the original seller 
 in respect of the goods, shall have the same effect as if the person 
 making the delivery or transfer were a mercantile agent in posses- 
 sion of the goods or documents of title with the consent of the 
 owner. 
 
 10. Where a document of title to goods has been lawfully trans- 
 ferred to a person as a buyer or owner of the goods, and that 
 person transfers the document to a person who takes the document 
 in good faith and for valuable consideration, the last-mentioned 
 transfer shall have the same effect for defeating any vendor's 
 lien or right of stoppage in transitu as the transfer of a bill of 
 lading has for defeating the right of stoppage in transitu.
 
 API'KNDIX B. 380 
 
 Si(f)f>h'i)iental. 
 
 11. Fur the iiuiposes of this Art, llic transfer of a clurumeni 
 may be by endorsement, or, where the document is by custom 01 
 by its express terms transferable by delivery, or makes the gu<;ds 
 deliverable to the bearer, then bv deliverv. 
 
 12. — (1.) Nothing in the Act shall authorise an agent to exceed 
 or depart form his authority as between himself and his principal, 
 or exempt him from any liabilit\-, civil or criminal, for so doing 
 
 (2.) Nothing in this /-.ct shall prevent the owner of goods from 
 recovering the goods from an agent or his trustee in bankruptcv 
 at any time before the sale or pledge thereof, or shall prevent 
 the owner of goods pledged by an agent from having the right to 
 redeem the goods at any time before the sale thereof, on satisfy- 
 ing the claim for which the goods were pledged, and paying to the 
 agent, if by liim required, any money in respect of which the 
 agent would by law be entitled to retain the goods or the docu- 
 ments of title thereto, or any of them, by way of lien as against 
 the owner, or from recovering from any person w'ith whom the 
 goods have been pledged anv balance of money remaining 
 in his hands as the produce of the sale of the goods after deducing 
 the amount of his lierk 
 
 (3.) Nothing in this Act shall prevent the owner ui goods sold 
 by an agent from recovering from the buver the price agreed to 
 be paid for the same, or any part of that price, subject to anv 
 right of set off on the part of the buyer against the agent. 
 
 13. The ])rovisions of this Act shall be construed in amplifica- 
 tion and not in derogation of the powers exercisable bv an agent 
 independently of this Act. 
 
 14. [Repeal of enactments mentioned in Schedule.] . 
 
 15. [Commencement of Act.] 
 
 16. This Act shall not extend to Scotland. 
 
 17. This Act mav be cited as " The Factors Act, 1889."
 
 oS4 APPExVDIX B. 
 
 IV. 
 
 THE SALE OF GOODS ACT. 1893. 
 
 CH.\PTER 71. 
 
 An .Act for codifying' the Law relating to the Sale of Goods. 
 
 [20th February, 1891.] 
 
 Be it enacted by the Queen's most Excellent Majesty, by and 
 with the advice and consent of the Lords Spiritual and Temporal, 
 and Commons, in this present Parliament assembled, and by the 
 authority of the same, as follows : 
 
 PART L 
 
 Formation of the Contract. 
 
 Contract of Sale 
 
 1. — (1.) A contract of sale of goods is a contract whereby the 
 seller transfers or agrees to transfer the property in goods to the 
 buyer for a money consideration, called thft price. There may be 
 a contract of sale between one part owner and another. 
 
 (2.) A contract of sale may be absolute or conditional. 
 
 (3.) Where under a contract of sale the property in the goods is 
 transferred from the seller to the buyer the contract is called a 
 sale ; but where the transfer of the property in the goods is to take 
 place at a future time or subject to some condition thereafter to 
 be fulfilled the contract is called an agreement to sell. 
 
 (4.) An agreement to sell. becomes a sale when the time elapses 
 or the conditions are fulfilled subject to which the property in the 
 goods is to be transferred. 
 
 2. Capacity to buy and sell is regulated by the general law- 
 concerning capacity to contract, and to transfer and acquire 
 jjroperty. 
 
 Provided that where necessaries are sold and delivered to an 
 infant, or minor, or to a person who by reason of mental 
 incapacity or drunkenness is incompetent to contract, he must 
 ])av a reasonable price therefor. 
 
 Necessaries in this section mean goods suitable to the condition 
 in life of such infant or minor or other person, and to his actual 
 requirements at the time of the sale and. delivery.
 
 k
 
 AI'PKXDIX H. tiS't 
 
 l''or))uiliiics til Ihc Citiilnul. 
 
 'A. Subjtct tn ilie provisions of tliis Art and of an\ slatiiti- in 
 that behalf a contract of sale may be made in \vrilin<4 (eitlier with 
 or without seal), or by word of mouth or partlv in wiitinj^ .-.nd 
 partly by word of mouth, or ma\ be implied from the londuei of 
 the parties. 
 
 Provided thai nuthir.if in this section shall alfiri the law relatinf* 
 to corporations. 
 
 4. — (1.) A contract for the sale of any ^oods of the value of ten 
 pounds or upwards shall not be enforceable by action unless the 
 buyer shall accept part of the goods so sold, and actually receive 
 the same, or give something in earnest to bind the contract, or in 
 part pavment, or unless some note or memorandum in writing 
 of the contract be made and signed by the party to be charged or 
 his agent in that behalf. 
 
 (2.) The provisions of this section apply to every such contract, 
 notwithstanding that the goods may be intended to be delivered at 
 some future time, or may not at the time of such contract be 
 actuallv made, procured, or provided, or fit or ready for delivery 
 or some act may be requisite for the making or completing thereof, 
 or rendering the same fit for delivery. 
 
 (3.) There is an acceptance of goods within the meaning of this 
 section when the buyer docs any act in relation to the goods which 
 recognises a pre-existing contract of sale whether there be an 
 acceptance in performance of the contract or not. 
 
 (4.) The provisions of this section do not ajjply to Scotland. 
 
 Subject matter of Conlracl. 
 
 5. — (1.) The goods which form the subject of a contract of sale 
 may be either existing goods, owned or possessed by the seller, or 
 goods to be manufactured or acquired by the seller after the 
 making of the contract of sale, in this Act called " future goods." 
 
 (2.) There may be a contract for the sale of goods, the acquisi- 
 tion of which by the seller depends upon a contingency which may 
 or may not happen. 
 
 (3.) Where bv a contract of sale the seller purports to effect a 
 present sale of future goods, the contract operates as an agree- 
 ment to sell the goods. 
 
 6. Where there is a contract for the sale of specific goods, ind 
 the goods without the knowledge of the seller have perished at 
 the time when the contract is made, the contract is void. 
 
 15
 
 386 APPENDIX B. 
 
 7. Where there is an agreement to sell specific goods, and sub- 
 sequently the goods, without any fault on the part of the seller 
 or buyer, perish before the risk passes to the buyer, the agreement 
 is thereby avoided. 
 
 The Price. 
 
 8. — (1.) The price in a contract of sale may be fixed by the 
 contract, or mav be left to be fixed in manner thereby agreed, or 
 may be determined bv the course of dealing between the parties. 
 
 (2.) Where the price is not determined in accordance with the 
 foregoing provisions the buyer must pay a reasonable price. W^hat 
 is a reasonable price is a question of fact dependent on the 
 circum.stances of each particular case. 
 
 9. — (1.) W^'here there is an agreement to sell goods on the terms 
 that the price is to be fixed by the valuation of a third party, i^nd 
 such third party cannot or does not make such valuation, the 
 agreement is avoided ; provided that if the goods or any part 
 thereof have been delivered to and appropriated bv the buyer he 
 must pay a reasonable price therefor. 
 
 (2.) Where such third party is prevented from making the valu- 
 ation bv the fault of the seller or buyer, the party not in fault 
 may maintain an action for damages against the party in fault. 
 
 Couditious and ]]'arranties. 
 
 ■ 10. — (1.) Unless a different inteniton appears from the terms 
 'of the contract stipulations as to time of payment are not deemed 
 to be of the essence of a contract of sale. Whether any other 
 stipulation as to time is ot the essence of the contract or not 
 depends on the terms of the contract. 
 
 2). In a contract of sale " month " means prima facie calendar 
 month. 
 
 11. — (1.) In England or Ireland — 
 
 (a.) Where a contract of sale is subject to any condition to be 
 fulfilled by the seller, the buyer may waive the condition, or 
 may elect to treat the breach of such condition as a breach 
 of warranty, and not as a ground for treating the contract as 
 repudiated. 
 
 (b.) Whether a stipulation in a contract of sale is a condition 
 the breach of which may give rise to a right to treat the 
 contract as repudiated, or a warranty, the breach of wi/ich 
 may give rise to a claim for damages but not to a right to 
 reject the goods and treat the contract as repudiated, depends 
 in each case on the construction of the contract. A stipulation 
 ma}' be a condition, though called a warranty in the contract :
 
 APPKN'DIX B. 38" 
 
 (f.) Whore a contract of sale is not severable, and tlie buyer 
 
 has accepted the goods, or part thereof, or where the contract 
 
 is for specific i^'oods, the property in which has passed to the 
 
 buver, the breach of anv condition to be fulfilled by the seller 
 
 can only be treated as a breach of warranty, and not as a 
 
 i^round for rejecting the goods and treating the contract as 
 
 repudiated, unless there be a term of the contract, cxprcs or 
 
 implied, to that efiect. 
 
 (2.) In Scotland failure by tiie seller to perform anv mat.vial 
 
 part of a contract of sale is a breach of contract which entitles the 
 
 buyer either within a reasonable time after delivery to reject the 
 
 goods and treat the contract as repudiated or to retain the goods 
 
 and treat the failure to perform such material part as a breach 
 
 which may give rise to a claim for compensation or damages 
 
 (3.) Nothing in this section shall affect the case of any condition 
 or warranty fulfilment of which is excused by law by reason of 
 impossibility or otherwise. 
 
 12. In a contract of sale unless the circumstances of the contract 
 are such as to show a different intention, there is — 
 
 (1.) An implied condition on the part of the seller that in the 
 case of a sale he has a right to seil the goods, and that in the 
 case of an agreement to sell he will have a right to sell 
 the goods at the time when the property is to pass : 
 
 (2.) An implied warranty that the buyer shall have and enjoy 
 quiet possession of the goods : 
 
 (3.) An implied warranty that the goods shall be free from any 
 charge or encumbrance in favour of any third party, not 
 declared or known to the buyer before or at the time when the 
 contract is made. 
 
 13. Where there is a contract for the sale of goods by descrip- 
 tion, there is an implied condition that the goods shall correspond 
 with the description ; and if the sale be by sample, as well as by 
 description, it is not sufficient that the bulk of the goods 
 corresponds with the sample if the goods do not also correspond 
 with the description. 
 
 14. Subject to the provisions of this Act and of any statute in 
 that behalf, there is no implied warranty or condition as to the 
 quality or fitness foi any particular purpose of goods supplied 
 under a contract of sale, except as follows : — 
 
 (I.) Where the bu\er, expressly or by implication, makes known 
 to the seller the particular purpose for which the goods are 
 required, so as to show that the buyer relies on the seller's 
 skill or judgment, and the goods are of a description which it 
 is in the course of the seller's business to supply (whether he
 
 388 APPENDIX B. 
 
 be the manufacturer or nut), there is an impHed condition 
 that the goods shall be reasonably fit for such purpose, pro- 
 vided that in the case of a contract for the sale of a specified 
 article under its patent or other trade name, there is no 
 implied condition as to its fitness for any particular purpose : 
 
 (2.) Where goods are bought by description from a seller who 
 deals in goods of that description (whether he be the ma.iu- 
 facturer or not), there is an implied condition that the goods 
 shall be of merchantable quality ; provided that if the buyer 
 has examined the goods, there shall be no implied condition 
 as regards defects which such examination ought to have 
 revealed : 
 
 (3.) An implied warranty or condition as to quality or fitness 
 for a particular purpose may be annxed by the usage of trade. 
 
 (4.) An express warranty or condition does not negative a 
 warranty or condition implied by this Act unless inconsistent 
 therewith. 
 
 Sale by Sample. 
 
 15. — (1.) A contract of sale is a contract for sale by sample 
 where there is a term in the contract, express or implied, to that 
 effect 
 
 (2.) In the case of a contract for sale by sample — 
 
 (a.) There is an implied condition that the bulk shall 
 
 correspond with the sample in quality : 
 (b.) There is an implied condition that the buyer shall have 
 a reasonable opportunity of comparing the bulk with the 
 sample : 
 
 (c.) There is an implied condition that the goods shall be free 
 from anv defect rendering them unmerchantable which 
 would not be apparent on reasonable examination of the 
 samole. 
 
 PART II. 
 
 Effhcts of the Contr.\ct. 
 
 Transfer of Property as between Seller and Buyer. 
 16. Where there is a contract for the sale of unascertained 
 goods no property in the goods is transferred to the buyer unless 
 and until the goods are ascertained. 
 
 17. — (1.) Where there is a contract for the sale of specific or 
 ascertained goods the property in them is transferred to the
 
 APl'KNDIX H. ' 389 
 
 buyer at siuli tinic as (lie piutit's to ihe contract intend it to be 
 transferred. 
 
 (2.) For (he pur|)()se of ascertainin<4 the intention of the parlies 
 rejijard shall be had to the terms of the contraet, the conduct of 
 the parties, and the circumstances of Ihe case. 
 
 18. Unless a different intention appeals the foUowinj^ are rules 
 for ascertaining the intention of the parties as to the tinv; at 
 which the property in the goods is to pass to the buver. 
 
 Rule 1. — Where there is an unconditional contract for the 
 sale .)f specific goods, in a deliverable stale, the property in 
 the goods passes to the buyer when the contract is made, and 
 it is immaterial whether the time of j)ayment or the time 
 of delivery, or both, be postponed. 
 
 Rule 2. — Where there is a contract for the sale of specific 
 goods and the seller is bound to do something to the goods, 
 for the purpose of putting them into a deliverable state, the 
 property does not pass until such thing be done, and the 
 buyer has notice thereof. 
 
 Rule S. — Where there is a contract for the sale of sp-vific 
 goods in a deliverable state, but the seller is bound to weigh, 
 measure, test, or do some other act or thing with reference 
 to the goods for the purpose of ascertaining the price, the 
 property does not pass until such act or thing be done, and 
 the buver has notice thereof. 
 
 Rule 4. — When goods are delivered to the buyer on aj^proval 
 
 or " on sale or return " or other similar terms the property 
 
 therein passes to the buyer : — - 
 
 (a.) When he signifies his approval or acceptance to the 
 seller or does any other act adopting the transaction : 
 
 (b.) If he does not signify his approval or acceptance to the 
 seller but retains the goods without giving notice of 
 rejection, then, if a time has been fixed for the rcvarn 
 of the goods, on the expiration of such time, and, if no 
 time has been fixed, on the expiration of a reasonable 
 time. What is a reasonable lime is a question of fact. 
 
 Rule .■),. — (1.) Where there is a contract for the sale of unascer- 
 tained or future goods by description, and goods of that 
 description and in a deliverable state are unconditionally 
 appropriated to the contract, either by the seller with the 
 assent of the buyer, or by the buyer with the assent of the 
 seller, the property in the goods thereupon passes to the 
 buver. Such assent may be express or implied, and mav be 
 given either before or after the appropriation is made.
 
 390 APPKXDIX B. 
 
 (2.) Where, in pursuance of the contract, the seller delivers 
 the goods to the buyer or to a carrier or other bailee or cus- 
 todier (whether named by the buyer or not) for the purpose 
 of transmission to the buyer, and does not reserve the i i^ht 
 of disposal, he is deemed to have unconditionally appropriated 
 the goods to the contract. 
 
 19. — (1.) Where there is a contract for the sale of specific 
 goods or where goods are subsequentlv appropriated to the con- 
 tract, the seller may, by the terms of the contract or appropiia- 
 tion, reserve the right of disposal of the goods until certain 
 conditions are fulfilled In such case, notwithstanding the 
 delivery of the goods to the buyer, or to a carrier or other bailee 
 or custodier for the purpose of transmission to the buyer, the 
 property in the goods does not pass to the buyer until the con- 
 ditions imposed by the seller are fulfilled. 
 
 (2.) Where goods are shipped, and by the bill of lading the 
 goods are deliverable to the order of the seller or his agent, the 
 seller is prima facie deemed to reserve the right of disposal 
 
 (3.) Where the seller of goods draws on the buyer for the 
 price, and transmits the bill of exchange and bill of lading to +he 
 bu)'er together to secure acceptance or payment of the bill of 
 exchange, the buyer is bound to return the bill of lading if he 
 does not honour the bill of exchange, and if he wrongfully 
 retains the bill of lading the property in the goods does not pass 
 to him. 
 
 20. Unless otherwise agreed, the goods remain at the seller's 
 risk until the property therein is transferred to the buyer, but 
 when the property therein is transferred to the buyer, the goods 
 are at the buyer's risk whether delivery has been made or not. 
 
 Provided that where delivery has been delayed through the 
 fault of either buyer or seller the goods are at the risk of the 
 party in fault as regards any loss which might not have occuTed 
 but for such fault. 
 
 Provided also that nothing in this section shall affect the duties 
 or liabilities of either seller or buyer as a bailee or custodier of 
 the goods of the other party. 
 
 Transfer of Title. 
 
 21. — (1.) Subject to the provisions of this Act, where goods 
 are sold by a person who is not the owner thereof, and who does 
 not sell them under the authority or with the consent of the 
 owner, the buyer acquires no better title to the goods than the 
 seller had, unless the owner of the goods is by his conduct pre- 
 cluded from denying th'j seller's authority to sell.
 
 \im'i:n[)|\ u. ;;!il 
 
 {•2.) Provided rdsn thai iK.lhint^ in liiis Act -^hall alfort— 
 
 (a.) The provisions of tiie Factors Acts, or any enactment 
 enabling the apparent owner oi jijoods to dispose of them as 
 if he were the true owner thereof ; 
 
 (b.) The validity of any contract of sale under any special 
 common law or statutory power of sale or under the orHer 
 of a court of competent jurisdiction. 
 
 22. — (1.) Where goods are sold in market overt, according tO' 
 the usage of the market, the buyer acquires a good title to the 
 goods, provided he buys them in good faith and without notice 
 of any defect or want of title on the part of the sellcM". 
 
 (2.) Xotliing in tiiis section shal! affect the law relating t.i the 
 sale of horses. 
 
 (3.) The provisions of this section do not apjjly to .Scotland. 
 
 23.. When the seller of goods has a voidable title thereto, but 
 his title has not been avoided at the time of the sale, the buyer 
 acquires a good title to the goods, provided he buvs them in 
 good faith and without notice of the seller's defect of title. 
 
 24. —(1.) Where goods have been stolen and the offender is 
 prosecuted to conviction, the property in the goods so stolen 
 revests in the person who was the owner of the goods, or his 
 personal representative, notwithstanding any intermediate dealing 
 with them, whether bv sale in market overt or otherwise. 
 
 (2.) Notwithstanding anv enactment to the contrary, where 
 goods have been obtained by fraud or other wrongful means not 
 amounting to larceny, the property in such goods shall not revest 
 in the person who was the owner of the goods, or his personal 
 representative, bv reason only of the conviction of the offender. 
 
 (3.) The provisions of this section do not apply to .Scotland. 
 
 25. — (1.) W'here a person having sold goods continues or is in 
 possession of the goods, or of the documents of title to the goods, 
 the deliverv or transfer by that person, or by a mercantile agent 
 acting for him, of the goods or documents of title under any 
 sale, pledge, or other disposition thereof, to any person receiving 
 the same in good faith and without notice of the previous sale, 
 shall have the same effect as if the person making the delivery 
 or transfer were expressly authorised by the owner of the goods 
 to make the same. 
 
 (2.) Where a person having bought or agreed to buy gc ids 
 obtains, with the consent of the seller, possession of the goods or 
 the documents of title to the goods, the delivery or transfer by 
 that perst)n, or by a mercantile agent acting for him, of the
 
 392 APPENDIX B. 
 
 goods or documents of title, under any sale, pledge, or other dis- 
 position thereof, to any person receiving the same in good faith 
 and without notice of anv lien or other right of the original seller 
 in respect of the goods, shall have the same effect as if the person 
 making the delivery or transfer were a mercantile agent in pos- 
 session of the goods or documents of title with the consent of 
 the owner. 
 
 (3..) In this section the term " mercantile agent " has the same 
 meaning as in the Factors Acts. 
 
 26. — (1.) A writ of fieri facias or other writ of execution 
 against goods shall bind the property in the g(H)ds of the execu- 
 tion debtor as from the time when the writ is delivered to the 
 sheriff to be executed ; and, for the better manifestation of such 
 time, it shall be the duty of the sheriff, without fee, upon the 
 receipt of any such writ to endorse upon the back thereof the 
 hour, day, month and year when he received the same. 
 
 Provided that no such writ shall prejudice the title to such 
 goods acquired by any person in good faith and for valuable 
 consideration unless such person had at the time when he 
 acquired his title notice that such writ or any other writ by virtue 
 of which the goods of the execution debtor might be seized or 
 attached had been delivered to and remained unexecuted in the 
 hands of the sheriff. 
 
 (2.) In this section the term " sheriff " includes any officer 
 charged with the enforcement of a writ of execution. 
 
 (3.) The provisions of this secticjn do not apply to .Scotland. 
 
 PART III. 
 
 Performance oe the Contract. 
 
 27. It is the duty of the seller to deliver the goods and ot the 
 buyer to accept and pav for them in accordance with the terms of 
 the contract of sale. 
 
 28. Unless otherwise agreed, delivery of the goods and pay- 
 m.ent of the price are concurrent conditions, that is to say, the 
 seller must be ready and willing to give possession of the goods 
 to the buyer in exchange for the price and the buyer must be 
 ready and willing to pay the price in exchange for possession of 
 the goods. 
 
 29. — (1.) Whether it is for the buyer to take possession of the 
 goods or for the seller to send them to the buyer is a question 
 depending in each case on the contract, express or implied, be- 
 tween the ])arties. Apart from any such contract, express or
 
 AIM'KNDIX n. '.]U'] 
 
 iinplitHl, till' place of dt'ivorv is iho seller's placo ■>( bi!sin(>-.s, if 
 he have one, and if not, his residence : Provided thai, if the ton- 
 tract be for the sale of specific ijoods, which to the knowledtje 
 of the parties when the contract is made are in sonic other place 
 then that |)lace is the place of delivery. 
 
 (2.) Wliere under the contract of sale the seller is bound to 
 send the j^oods to the buyer, but no time for serulin^ them is 
 fixed, the seller is bound to send them within a reasonable ti.ne. 
 
 (3.) Where the j^oods at the time of sale are in the possessioji 
 of a third person, there is no delivery bv seller to buver unless 
 and until such third person acknowledi^es to the buyer that he 
 holds the -jjoods on his behalf; provided thai nothinjij in this 
 section shall affect the ojjeration of the issue or transfer of :)nv 
 document of title to t«oods. 
 
 (4.) Demand or tender of delivery may be treated as ineffectual 
 unless made at a reasonable hour. What is a reasonable hour is 
 a question of fact. 
 
 (o.) Unless otherwise at*reed, the expenses of and incidental to 
 puttinj.^ the i^oods into a deliverable state must be borne by the 
 seller. 
 
 30. — (1.) Where the seller delivers to the buyer a quantity of 
 goods less than he contracted to sell, the buyer may reject them, 
 but if the buyer accepts the goods so delivered he must pay for 
 them at the contract rate. 
 
 (2.) Where the seller delivers to the buyer a quantity of goods 
 larger than he contracted to sell, the buyer may accept the goods 
 included in the contract and reject the rest, or he may reject the 
 whole. If the buyer accepts the whole of the goods so delivered he 
 must pay for them at the contract rate. 
 
 (3.) Where the seller delivers to the buyer the goods he con- 
 tracted to sell mixed with goods of a different description not in- 
 cluded in the contract, the buyer may accept the goods which are 
 in accordance with the contract and reject the rest, or he mav 
 reject the whole. 
 
 (4.) The provisions of this section are subject to any usage of 
 trade, special agreement, or course of dealing between the parties. 
 
 31. — (1.) Unless otherwise agreed, the buyer of goods is not 
 ■bound to accept delivery thereof bv instalments. 
 
 (2.) Where there is a contract for the sale of goods to be de- 
 livered by stated instalments, which are to be separately paid for, 
 and the seller makes defective deliveries in respect of one or more 
 instalments, or the buyer neglects or refuses to take delivery of 
 or pav for one or more instalments, it is a question in each case 
 ■depending on the terms of the contract and the circumstances of
 
 394 APPENDIX B. 
 
 the case, whether the breach of contract is a repudiation of the 
 whole contract or whether it is a severable breach giving rise to a 
 claim for compensation but not to a right to treat the whole con- 
 tract as repudiated. 
 
 32. — (1.) Where, in pursuance of a contract of sale, the seller 
 is authorised or required to send the goods to the buj'er, delivery 
 of the goods to a carrier, whether named by the buyer or not, for 
 the purpose of transmission to the buyer is prima facie deemed to 
 be a delivery of the goods to the buyer. 
 
 (2.) Unless otherwise authorised by the buver, the seller must 
 make such contract with the carrier on behalf of the buyer as may 
 be reasonable having regard to the nature of the goods and the 
 other circumstances of the case. If the seller omit so to do, and 
 the goods are lost or damaged in course of transit, the buyer may 
 decline to rreat the delivery to the carrier as a delivery to himself, 
 or mav hold the seller responsible in damages. 
 
 (3.) Unless otherwise agreed, where goods are sent bv the seller 
 to the buyer by a route involving sea transit, under circum- 
 stances in which it is usual to insure, the seller must give such 
 notice to the buyer as mav enable him to insure them during^ 
 their sea transit, and, if the seller fails to do so, the goods shall be 
 deemed to be at his risk during such sea transit. 
 
 33. Where the seller of goods agrees to deliver them at his own 
 risk at a place other than that where they are when sold, the 
 buyer must, nevertheless, unless otherwise agreed, take any risk 
 of deterioration in the goods necessarily incident to the course of 
 transit. 
 
 34.- — (1.) Where goods are delivered to the buyer, which he has 
 rot previouslv examined, he is not deemed to have accepted them 
 unless and until he has had a reasonable opportunity of examining 
 them for the purpose of ascertaining whether they are in con- 
 formity with the contract. 
 
 (2.) Unless otherwise agreed, when the seller tenders deliverv 
 Of gojds to the buyer, he is bound, on request, to afford the buver 
 a reasonable opportunity of examining the goods for the purpose 
 of ascertaining whether they are in conformity with the contract. 
 
 35. The buyer is deen;ed to have accepted the goods when he 
 intimates to the seller that he has accepted them, or when the 
 goods have been delivered to him, and he does any act in relation 
 to them which is inconsistent with the ownership of the seller, or 
 when after the lapse of a reasonable time, he retains the goods 
 without intimating to the seller that he has rejected them. 
 
 36. Unless otherwise agreed, where goods are delivered to the 
 buyer, and he refuses to accept them, having the right so to do, h«-
 
 APPENDIX B. .'i!>"» 
 
 is nut bound to return ilciu to the seller, but il is sufllcient if he 
 intimates to the seller that he refuse-? to accept them. 
 
 37. When the seller is read\ and willinj^ to deliver the goods, 
 and requests the buyer to take delivery, and the buver does not 
 within a reasonable time- after such request take deliverv of the 
 goods, he is liable to the seller for any loss occasioned bv his neg- 
 lect or refusal to take deliver)-, and also for a reasonable ch^rge 
 for the care and custody of the goods. Provided that nothing in 
 this section shall aft'ect the rights of the seller when- the neglect 
 or refusal of the buyer to take deliver\ amounts to a repudiation 
 of the contract. 
 
 PART IV. 
 
 Rights oi-- Umv\ii> .Si;i.i.1sk against timc Goods. 
 
 38. — (1.) The seller of goods is deemed to be an " unpaid >ellei " 
 within the meaning of this Act — 
 
 (a.) When the whole of the price has not been paid or tende'ed ; 
 
 (b.) When a bill of exchange or other negotiable instrument has 
 been received as conditional payment, and the condition on 
 which it was received has not been fulfilled by reason of the 
 dishonour of the instrument or ctherwise. 
 
 (2-) In this part of this Act the term " seller " includes any 
 person who is in the position of a seller, as, for instance, an agent 
 of the seller to whom the bill of lading has been indorsed, or a 
 consignor or agent who has himself paid, or is directly responsible 
 lor, the price 
 
 39. — (1.) Subject to the provisions of this .\ct, and of any 
 statute in that behalf, notwithstanding that the iM-operty in the 
 goods mav have passed to the buver, the unpaid seller of goods, as 
 such, has bv implication of law — 
 
 (a.) A lien on the goods or right to retain tlicm foi- the prirc 
 
 while he is in possession of them ; 
 (b.) In case of the insolvency of the buyer, a right of stopping 
 the goods in transitu after he has parted with tiie possession 
 of them ; 
 (c.) A right of re-sale as limited by this Act. 
 
 (2.) Where the property in goods has not passed to liie buyer, 
 the unpaid seller has, in addition to his other remedies, a right of 
 withholding delivery, similar to and co-extensive with his rights 
 of lien and stop]jage in transitu where the property has passed to 
 the buyer.
 
 396 APPENDIX B. 
 
 40. In Scotland a seller of goods may attach the same while in 
 his own hands or possession bv arrestment or poinding; and such 
 arrestment or poinding shall have the same operation and effect in 
 a competition or otherwise as an arrestment or poinding by a third 
 party. 
 
 Unpaid Seller's Lien. 
 
 41. — (1.) Subject to the provisions of this Act, the unpaid seller 
 of goods who is in possession of them is entitled to retain posses- 
 sion of them until payment or tender of the price in the following 
 cases, namely : — 
 
 (a.) Where the goods have been sold without any stipulation as 
 to credit ; 
 
 (6.) Where the goods have been sold on credit, but the term of 
 credit has expired ; 
 
 (c.) Where the buyer becomes insolvent. 
 
 (2.) The seller may exercise his right of lien notwithstanding 
 that he is in possession of the goods as agent or bailee or cus- 
 todier for the buyer. 
 
 42. Where an unpaid seller has made part delivery of the 
 goods, he may exercise his right of lien or retention on the 
 remainder, unless such part delivery has been made under such 
 circumstances as to show an agreement to waive the lien or right 
 of retention. 
 
 43. — (1.) The unpaid seller of goods loses his lien or right of 
 retention thereon — 
 
 (a.) When he delivers the goods to a carrier or other bailee or 
 custodier for the purpose of transmission to the buyer without 
 reserving the right of disposal of the goods ; 
 
 (b.) When the buyer or his agent lawfully obtains possession of 
 the goods ; 
 
 (c.) By waiver thereof. 
 
 (2.) The unpaid seller of goods having a lien or right of reten- 
 tion thereon, does not lose his lien or right of retention by reason 
 only that he had obtained judgment or decree for the price of the 
 goods. 
 
 Stoppage in tratisitit. 
 
 44. Subject to the provisions of this Act, when the buyer of 
 goods becomes insolvent, the unpaid seller who has parted with 
 the possession of the goods has the right of stopping them in 
 transitu, that is to say, he may resume possession of the goods 
 as long as thev are in course of transit, and may retain them 
 until payment or tender of the price.
 
 aimm:m)Ix b. ;{97 
 
 45. — (1.) Goods are lieiMncd io be in course oof transit from the 
 time when they are dehvered to a carrier by land or water, or 
 other bailee or custodier for the purjjose of transmission to the 
 buyer, until the buyer, or his a^<'nl in that behalf, lakes delivery 
 of them from such carrier or other bailee or cutodier. 
 
 (2.) If the buyer or his af^Jent in that behalf obtains delivery of 
 the goods before their arrival at the apixjinled destination, the 
 transit is at an end. 
 
 (3.) If, after the arrival of the goods at the appointed destina- 
 tion, the carrier or other bailee or custodier acknowledges to 
 the buyer, or his agent, that he holds the goods on his behalf and 
 continues in possession of them as bailee or custodier for the buyer 
 or his agent, the transit is at an end, and it is immaterial that a 
 further destination for the goods may have been indicated by the 
 buyer. 
 
 (4.) If the goods are rejected by the buyer, and the carrier or 
 other bailee or custodier continues in possession of them, the tran- 
 sit is not deemed to be at an end, even if the seller has refused to 
 receive them back. 
 
 (5.) When goods are delivered to a ship chartered bv the bu\er 
 it is a question depending on the circumstances of the particular 
 case, whether they are in the. possession of the master as a carrier, 
 or as agent to the buyer. 
 
 (6.) Where the carrier or other bailee or custodier wrongful!) 
 refuses to deliver the goods to the buyer, or his agent in that 
 behalf, the transit is deemed to be at an end. 
 
 (7.) Where part delivery of the goods has been made to the 
 buyer, or his agent in that behalf, the remainder of £he goods may 
 be stopped in transitu, unless such part delivery has been made 
 under such circumstances as to show an agreement to give up 
 possession of the whole of the goods. 
 
 4(5. — (1.) The unpaid seller may erercise his right of stoppage 
 in transitu either by taking actual possession of the goods, or by 
 giving notice of his claim to the carrier or other bailee or custodier 
 in whose possession the goods are. Such notice may be given 
 either to the person in actual possession of the goods or to his 
 principal. In the latter case the notice, to be effectual, must be 
 given at such time and under such circumstances that the princi- 
 pal, by the exercise of reasonable diligence, may communicate it 
 to his servant or agent in time to prevent a delivery to the buyer. 
 
 (2.) When notice of stoppage in transitu is given by the seller 
 to the carrier, or other bailee or custodier in possession of the 
 goods, he must re-deliver the goods to, or according to the direc- 
 tions of, the seller. The expenses of such re-delivery must be 
 borne bv the seller.
 
 398 APPENDIX B. 
 
 Re-sale by Buyer or Seller. 
 
 47. Subject to the provisions of this Act, the unpaid seller's 
 right of lien or retention or stoppage in transitu is not affected 
 bj- any sale, or other disposition of the goods which the buyer may 
 have made, unless the seller has assented thereto. 
 
 Provided that where a document of title to goods has been 
 lawfully transferred to any person as buyer or owner of the goods, 
 and that person transfers the document to a person who takes the 
 document in good faith and for valuable consideration, then, if 
 such last-mentioned transfer was by way of sale the unpaid seller's 
 right of lien or retention or stoppage in transitu is defeated, and 
 if such last-mentioned transfer was by way of pledge or other 
 disposition for value, the unpaid seller's right of lien or retention 
 or stoppage in transitu can only be exercised subject to the rights 
 of the transferee. 
 
 48. — (1.) Subject to the provisions of this section, a contract of 
 sale is not rescinded bv the mere exercise bv an unpaid seller of his 
 right of lien or retention or stoppage in transitu. 
 
 (2.) Where an unpaid seller who has exercised his right of lien 
 or retention or stoppage in transitu re-sells the goods, the buyer 
 acquires a good title thereto as against the original buver. 
 
 (3.) Where the goods are of a perishable nature, or where the 
 unpaid seller gives notice to the buyer of his intention to re-sell, 
 and the buver does not within a reasonable time pay or tender the 
 price, the unpaid seller may re-sell the goods and recover from the 
 original buver damages for anv loss occasioned by his breach of 
 contract. 
 
 (4.) W^here the buver expresslv reserves a right of re-sale in 
 case the buyer should make default, and on the buyer making 
 default, resells the goods, the original contract of sale is thereby 
 rescinded, but without prejudice to any claim the seller may have 
 for damages. 
 
 PART V. 
 
 AcTioN.s FOR Breach of the Contr.act. 
 
 Remcties of the Seller. 
 
 49. — (1.) Where, under a contract of sale, the property in the 
 ^oods has passed to the buj-er, and the buyer wrongfully neglects 
 i>r refuses to pay for the goods according to the terms of the con- 
 tract, the seller may maintain an action against him for the price 
 of the goods.
 
 APPENDIX B. •»!>(» 
 
 (2.) Where, under a contract of sale, the price is payable on a 
 daj- certain irrespective of delivery, and the buyer wrongfully 
 neglects or refuses to pay such price, the seller may maintain an 
 fiction for the price, although the property in the goods has not 
 passed, and the goods have not been appropriated to the contract. 
 
 (3.) Nothing in this section shall prejudice the right of the 
 seller in Scotland to recover interest on the price from the date of 
 tender of the goods, or from the date on which the price was pay- 
 able, as the case may be. 
 
 5Q. — (1.) Where the buyer wrongfullv neglects or refuses t« 
 accept and pay for the goods, the seller may maintain an action 
 against him for damages for non-acceptance. 
 
 (2.) The measure of damages is the estimated loss directly and 
 naturally resulting, in the ordinary course of events, from the 
 buyer's breach of contract. 
 
 (3). Where there is an available market for the goods in ques- 
 tion the measure of damages is prima facie to be ascertained by 
 the difference between the contract price and the market or cur- 
 rent price at the time or times when the goods ought to have been 
 accepted, or, if no time was fixed for acceptance, then at the time 
 of the refusal to accept. 
 
 Remedies of the Buyer. 
 
 51. — (1.) Where the seller wrongfully neglects or refuses to 
 deliver the goods to the buyer, the buyer may maintain an action 
 against the seller for damages for non-delivery. 
 
 (2.) The measure of damages is the estimated loss directly and 
 naturally resulting, in the ordinar\- course of events, from the 
 seller's breach of contract. 
 
 (3.) Where there is an available market for the goods in ques- 
 tion the measure of damages is prima facie to be ascertained bv 
 the difference between the contract price and the market or 
 current price of the goods at the time or times when they ought to 
 have been delivered, or, if no time was fixed, then at the time of 
 the refusal to deliver. 
 
 52. In any action for breach of contract to deliver specific or 
 ascertained goods the court may, if it thinks fit, on the application 
 of the plaintiff, by its judgment or' decree direct that the contract 
 shall be performed specifically, without giving the defendant the 
 option of retaining the goods on payment of damages. The judg- 
 ment or decree may be unconditional, or upon such terms and 
 conditions as to damages, payment of the price, and otherwise, as 
 to the court may seem just, and the application by the plaintiff 
 mav be made at any time before judgment or decree.
 
 400 APPENDIX B. 
 
 The provisions of this section shall be deemed to be supplemen- 
 tary to, and not in derogation of, the right of specific implement 
 in Scotland. 
 
 53. — (1.) Where there is a breach of warranty by the seller, or 
 where the buyer elects, or is compelled, to treat any breach of a 
 condition on the part of the seller as a breach of warranty, the 
 buyer is not by reason only of such breach of warranty entitled to 
 reject the goods ; but he mav 
 
 (a) set up against the seller the breach of warranty in diminution 
 or extinction of the price ; or 
 
 (b) maintain an action against the seller for damages for the 
 breach of warranty. 
 
 (2.) The measure of damages for breach of warranty is the 
 estimated loss directl}' and naturally resulting, in the ordinary 
 course of events, from the breach of warranty. 
 
 (3.) In the case of breach of warranty of quality such loss is 
 prima facie the difference between the value of the goods at the 
 time of delivery to the buyer and the value they would have had 
 if they had answered to the warranty. 
 
 (4.) The fact that the buyer has set up the breach of warranty 
 in diminution or extinction of the price does not prevent him from 
 maintaining an action, for the same breach of warranty if he has 
 suffered further damage. 
 
 (5.) Nothing in this section shall prejudice or affect the buyer's 
 right of rejection in Scotland as declared by this Act. 
 
 54. Nothing in this Act shall affect the right of the buyer or the 
 seller to recover interest or special damages in any case where b\' 
 law interest or special damages may be recoverable, or to recover 
 money paid where the consideration for the payment of it has 
 failed. 
 
 PART VI. 
 
 SUPPLEMENT.ARY. 
 
 55. Where any right, duty, or liability would arise under a con- 
 tract of sale by implication of law, it may be negatived or varied 
 by express agreement or by the course of dealing between the 
 parties, or by usage, if the usage be such as to bind both parties to 
 the contract. 
 
 56. Where, by this Act. any reference is made to a reasonable 
 lime the question what is a reasonable time is a question of fact, 
 
 57. Where any right, duty, or liability is declared by this Act, 
 it mav, unless otherwise by this Act provided, be enforced by 
 action.
 
 AI'PKNDIX B. 401 
 
 58. ~In the case of a sale by auction — 
 
 (1.) Where goods are put up for sale by auction in lots, each 
 lot is prima facie deemed to be the subject of a separate 
 contract of sale ; 
 
 (2.) A sale by auction is complete when the auctioneer 
 announces its completion by the fall of the hammer, or in 
 other customary manner. Until such announcement is made 
 any bidder may retract his bid : 
 
 (3.) Where a sale by auction is not notified to be subject to a 
 right to bid on behalf of the seller, it shall not be lawful for 
 the seller to bid himself or to employ any person to bid at 
 such sale, or for the auctioneer knowingly to take any bid 
 from the seller or any such person : Any sale contravening 
 this rule may be treated as fraudulent by the buyer : 
 
 (4.) A sale by auction may be notified to be subject to a reserved 
 or upset price, and a right to bid may also be reserved 
 expressly by or on behalf of the seller. 
 
 Where a right to bid is expressly reserved, but not otherwise, 
 the seller, or any one person on his behalf, may bid at the auction. 
 
 59. In Scotland where a buyer has elected to accept goods which 
 he might have rejected, and to treat a breach of contract as only 
 giving rise to a claim for damages, he rnay, in an action by the 
 seller for the price, be required, in the discretion of the court 
 before which the action depends, to consign or pay into court the 
 price of the goods, or part thereof, or to give other reasonable 
 security for the due payment thereof. 
 
 60. The enactments mentioned in the Schedule to this Act are 
 hereby repealed as from the commencement of this Act to the 
 extent in that schedule mentioned. 
 
 Provided that such repeal shall not affect anything done or 
 suffered, or any right, title, or interest acquired or accrued before 
 the commencement of this Act, or any legal proceeding or remedy 
 in respect of any such thing, right, title or interest. 
 
 61. (1.) The rules in bankruptcy relating to contracts of sale 
 
 shall continue to apply thereto, notwithstanding anything in this 
 Act contained. 
 
 (2.) The rules of the common law, including the law merchant, 
 save in so far as they are inconsistent with the express pro- 
 visions of this Act, and in particular the rules relating to the law 
 of principal and agent and the effect of fraud, misrepresentation, 
 duress or coercion, mistake, or other invalidating cause, shall 
 continue to applv to contracts for the sale of goods. 
 
 26
 
 402 APPENDIX B. 
 
 (3.) Xothinj^ in this Act or in anv repeal effected thereby shall 
 affect the enactments relating to bills of sale, or any enactment 
 relating to the sale of goods which is not expressly repealed by this 
 Act. 
 
 (4.) The provisions of this Act relating to contracts of sale do 
 not apply to any tansaction in the form of a contract of sale which 
 is intended to operate by wav of mortgage, pledge, charge, or 
 other securit)'. 
 
 (5.) Nothing in this Act shall prejudice or affect the landlord's 
 right of hypothec or sequestration for rent in Scotland. 
 
 62. — (1.) In this Act, unless the context or subject matter 
 otherwise requires, — 
 
 " Action " includes counterclaim and set off, and in Scotland 
 condescendence and claim and compensation : 
 
 " Bailee " in .Scotland includes custodier : 
 
 " Buyer " means a person who buys or agrees to buy goods : 
 
 " Contract of sale " includes an agreement to sell as well as a 
 sale : 
 
 " Defendant " includes in Scotland defender, respondent, and 
 claimant in a multiplepoinding : 
 
 " Delivery " means voluntary transfer of possession from one 
 person to another : 
 
 " Document of title to goods " has the same meaning as it has 
 in the Factors Acts : 
 
 " Factors Acts " mean the Factors .Act, 1889, the Factors 
 (.Scotland) .\ct, 1890, and any enactment amending or 
 substituted for the same : 
 
 " Fault " means wrongful act or default : 
 
 " Future goods " mean goods to be manufactured or acquired 
 by the seller after the making of the contract of sale : 
 
 " Goods " include all chattels personal other than things in 
 action and money, and in .Scotland all corporeal moveables 
 except money. The term includes emblements, industrial 
 growing crops, and things attached to or forming part of the 
 land which are agreed to be severed before sale or under 
 the contract of sale : 
 
 " Lien " in Scotland includes right of retention : 
 
 " Plaintiff " includes jjursuer, complainer, claimant in a 
 multiplepoinding and defendant or defender counter- 
 claiming : 
 
 " Property " means the general ])roperty in goods, and not 
 merely a special property :
 
 I
 
 APPENDIX B. 403 
 
 " Quality of goods " includes their state or condition : 
 " Sale " includes a bargain and sale as well as a sale and 
 delivery : 
 
 " Seller " means a person who sells or agrees to sell goods. 
 
 " Specific goods " mean goods indentified and agreed upon at 
 the time a contract of sale is made : 
 
 " Warranty " as regards England and Ireland means an agree- 
 ment with reference to goods which are the subject of a 
 contract of sale, but collateral to the main purpose of such 
 contract, the breach of which gives rise to a claim for 
 damages, but not to a right to reject the goods and treat the 
 contract as repudiated. 
 
 As regards Scotland a breach of warranty shall be deemed to be 
 a failure to perform a material part of the contract. 
 
 (2.) A thing is deemed to be done " in good faith " within the 
 meaning of this Act when it is in fact done honestlv, whether it 
 be done negligently or not. 
 
 (3.) A person is deemed to be insolvent within the meaning of 
 this Act who either has ceased to pay his debts in the ordinary 
 course of business, or cannot pay his debts as they become due, 
 whether he has committed an act of bankruptcy or not, and 
 whether he has become a notour bankrupt or not. 
 
 (4.) Goods are in a " deliverable state " within the meaning of 
 this Act when they are in such a state that the buyer would 
 under the contract be bound to take delivery of them. 
 
 63. This Act shall come into operation on the first day of 
 January one thousand eight hundred and ninety-four. 
 
 64. This Act mav be cited as the Sale of Goods Act, 1893.
 
 INDEX.
 
 INDEX. 
 
 ABANDONMENT 
 
 of contract, 167 
 
 of lien, 12o 
 
 of notice to treat, 360 
 
 " ABOUT," " MORE OR LESS," ETC., 
 
 effect of words and expressions such as, OS, 1G4, 165 
 
 ABSTRACT OF TITLE. 
 
 commencement of, 220, 221, 247-249 
 conditions of sale limiting commencement of, 220-222 
 delav in delivery, rights of purchaser, 223-22-") 
 delivery of, 223-225 " 
 
 not an act of part performance, 59 
 documents to be abstracted for purposes of the, 246, 249, 2")') 
 expenses of, liability for, 251, 252, 253 
 failure to deliver, effect of, 224, 225 
 length of title to be shown b\ , 220, 221 
 nature of, 246, 247 
 " perfect," meaning of, 251 
 questions as to, determinable on vendor and purchaser 
 
 summons, 292, 293 
 registered land, contents of, 2.-)0, 251 
 time for requisitions on delivery of, 223-225 
 
 ABSTRACTED DOCUMENTS. 
 
 proof of, 253 
 what are, 249, 250 
 
 ACCEPTANCE 
 
 by acting on proposal, 24, 121 
 
 communication of, to agent, sufficient, 24 
 
 conditional, 25 
 
 how mav be made, 22, 121 
 
 implied from conduct, 22 
 
 must be absolute and unqualified, 25 
 
 no, where goods delivered differ from tht)se ordered, 24 
 
 notification of, may be dispensed witn, 24 
 
 of goods, buver's right of examining before, 170, 171 
 
 delav in rejection as implying, 172 
 
 express, by buyer, 171 
 
 implied, by buyer, 171, 172 
 
 in performance of contract, 170, 173
 
 408 INDE X. 
 
 Acceptance — continued. 
 
 of goods — continued. 
 
 in recognition of contract, 122, 123 
 
 re-sale by buyer as implied, 171 
 
 when buyer deemed to have made, 124, 170 
 
 of title, as abstracted, no waiver of objections to title, 261 
 
 revocation of, 35 
 
 " subject to contract," effect of, 25, 38 
 
 unconditional, of offer, makes binding contract, 25 
 
 ACCOUNT STATED 
 
 with linfant, 14 
 
 ACKNOWLEDGMENT, 
 of goods, 161 
 
 right to production and undertaking for custody of documents, 
 of, by purchaser, 238, 319 
 
 ACKNOWLEDGMENTS, 
 
 of married women, proof of, 253 
 
 searches for, 265 
 
 ACTION : See Damages : Injunction : Rectification : Rescis- 
 sion : Specific Performance : Vendor and Purchaser 
 Summons. 
 by administrator of convict's property, 11 
 by alien enemy, 11 
 by and against brokers, 91, 92 
 
 commission agents, 94 
 corporations, 12 
 infants, 13-16 
 married women, 17-19 
 urban authorities, 12 
 debenture holder's, 347 
 
 effect of bankruptcy on rights of, 116, 283-288 : See Stoppage 
 in transitu 
 
 death on rights of, 35, 116, 283-285 
 for contract price, 2, 121, 196, 199, 200 
 conversion, 2, 121, 195, 197 
 detinue, 2, 121, 195 
 money had and received, 98 
 non-delivery, 195 
 trespass, 121, 195 
 trover, 121, 150 
 incapacitv of convict in respect of, 11 
 parties to, 9, 10, 104, 105, 107, 111-113 
 redemption and foreclosure, 348 
 
 statutory provisions as to enforcement of rights of, 41, 55-59, 
 
 122
 
 INDKX. 409 
 
 ACTS OF PARLIAMENT. 
 
 proof of, 254 
 
 ACTUAL RECEIPT, 
 
 delivery of goods to carrier as effecting, 125 
 goods by buyer, of, when taking place, 124, 125 
 instances of, 124, 125 
 
 ADMINISTRATOR, see Executor. 
 appointment of, proof of, 254 
 of convict's property, power of Crown to appoint, 11 
 
 power of, in relation to contracts, 11 
 
 ADMI'ITANCE, 
 
 assurance of copyholds by surrender and, 319, 320 
 
 ADVERSE CLAIMS AND POSSESSION, 
 where land registered, 271, 272 
 
 ADVERTISEMENT OF SALE, 
 effect of, 23, 140 
 
 ADVOWSON, 
 
 title to be shown on sale of, 220, 245 
 
 AFFIDAVIT, 
 
 evidence by, on vendor and purchaser summons, 292 
 
 AFFIRMATIVE COVENANTS, 
 
 restrictive distinguished from, 329 
 
 AGENCY 
 
 by estoppel, 86 
 
 capacity of parties to, 86 
 
 contract of, distinguished from sale, 7 
 
 determination of, 108, 109 
 
 from necessity of case, 86 
 
 how it arises, 85 
 
 what it implies, 7 
 
 AGENT, see Auctionkers, Brokers, Del Credere Agents, Estate 
 Agents, Factors, Partners, Solicitors. 
 appointment of, 87, 88 
 authority of, 89 
 
 delegation of, 94, 95 
 
 execution of, 95 
 
 generally, 88 
 
 implied, 89 
 
 under power of attorney, 89 
 capacity of, 86, 87 
 contracts of, 104
 
 410 INDEX. 
 
 Agent — con tin iied. 
 
 corporations must contract by means of, 12 
 
 definition of, 83 
 
 dispositions of property by, 102, 103, 104 
 
 duty of, to principal, 97 
 
 fraud of, 106 
 
 general, distinguished from special agent, 83 
 
 is medium by which principal may be charged, 10 
 
 is representative of principal, 7 
 
 liability of, to principal, 97 
 
 to third parties, 102, 106, 107 
 where principal incapable of contracting, 9 
 non-existent, 9 
 
 lien of, 100 
 
 misrepresentation of, 67, 106 
 
 position of, selling to or purchasing from himself, 21 
 
 post office is, of sender of letter, 33 
 
 professional, 95, 96 
 
 ratification of acts of, 96 
 
 remuneration of, 99 
 
 representations by, 73, 106 
 
 right of, to account, 101 
 
 signature bv, satisfies statutory formalities, 41, 47, 48, 55, 56, 
 
 87 
 
 special, distinguished from general agent, 83 
 
 to sell or buy, duties of, 7, 98, 99 
 
 third parties" and, 102, 106, 107 
 
 vendor's, bidding on behalf of vendor, effect of, 2 
 
 wrongs of, 106 
 
 " AGREED TO BUY," 
 
 meaning and effect of, 154 
 
 AGREEMENT, 
 
 definition of, 22 * 
 
 determination of agency by, 108 
 
 for lease, payment of rent in advance under verbal, whether 
 
 part performance, 59 
 " heads of," effect of, 37 
 principles of, 22-37 
 to sell, at fair valuation, 38 
 
 distinguished from contract of sale, 1, 2 
 option to sell, 2 
 sale, 1, 2, 120 
 when it becomes a sale 120 
 to transfer propcrtx . not treated as a sale, when, 4 
 
 AGRICULTURAL LAND, 
 
 vendor's dutv i)cnding completion as to, 274, 27")
 
 iNi>i:x. 411 
 
 ALIKN. 
 
 r;i|)acity of, to contract, Id 
 
 ALIKN ENKMV, 
 
 contracts with, 11 
 
 " ALL THK LS'IATL " CLAL SL, 
 omission of, 312 
 
 ALTLRXA'I INi: CONS'lRrc ' IIOXS, oo, 56 
 
 A.MBKil ITY, 
 
 effect of, 65, 68, 69 
 
 ANXUniES, 
 
 cessation of, proof of, 254 
 searches for, 263, 264 
 
 AXNOUXCKMLXT OF SALE BY TEXDER, 
 
 not an otTer, 23 
 
 " AXTICIPATORV BREACH," 
 
 of contract, seller's rights on, 203 
 
 what constitutes an, 203 
 
 APPOINTMEXT, 
 
 default in exercise of power of, how proved, 254 
 of administrator, proof of, 254 
 of trustee, proof of, 254 
 
 APPORTIOXMEXT : See OimwMNCis : Rknts and Proi its. 
 
 APPROPRLVnOX 
 
 of goods, 146, 147, 209 
 
 deliverv to carrier bv purchaser's order as effecting, 
 
 146, 147 
 meaning of, 146 
 
 when seller deemed to have made, 146 
 of purchase-money on sale of land, 279, 280 
 
 APPROVAL. 
 
 contracts for sale or return or on, 5. 145, 153 
 of title, by solicitor, 38 
 
 ARBrrRATIOX. 
 
 condition that dispute shall l)e referred to, effect of on sale by 
 
 description, 137 
 object of, 53 
 valuation distinguished from, 53, 54
 
 412 INDEX. 
 
 ASSIGNMENT 
 
 by act of parties, 110-115, 281-283 
 
 by operation of law, 115-117, 283-291 
 , contract to assign becomes an, when, 127, 128 
 
 effect of Judicature Act, 1873, as to, 111-112 
 
 form of, 113 
 
 includes sale, 7 
 
 notice of, 114 
 
 priority of, 114 
 
 of benefit of contract, 282, 283 
 choses in action, 112, 113 
 liabilities under contract, 10, 110, 111 
 rights at common law, 10, 111 
 in equity. 111 
 
 purchaser's rights in respect of, 281, 282 
 
 title passing by, 115 
 
 ASSURANCE, 
 
 of copyholds, 319-321 
 freeholds, 309-319 
 leaseholds, 321-322 
 
 ATTORNMENT, 158, 161, 187 
 
 AUCTION, 
 
 sales by, biddings at, accepted by fall of hammer, 35 
 constitute offers, 35, 141 
 opening of, on ground of fraud, 69 
 revocation of, 35, 36 
 stipulations as to, 35, 36, 218 
 advertisement of, not offers 140 
 conduct tending to " damp," effect of, 78 
 employment of puffers at, 78, 142 
 of property in lots, 141, 242, 243 
 of settled land, 334 
 powers of mortgagees as to, 343 
 
 tenant for life, as to, 334 
 trustees as to, 340 
 statutory provisions as to, 78, 141, 218 
 unider distraints for rent, 367 
 
 order of court, 349 
 vendor's reservations on, 23, 78, 141, 218 
 within Statute of Frauds, 41 
 
 AUCTIONEER, see Agent. 
 defined, 84 
 
 deposit paid to, 219, 220 
 extent of authority of, 84, 92, 93
 
 INDEX. 413 
 
 Auctioneer — continued. 
 
 implied autliority of, 84, 92, 93 
 
 is agent for vendor and purchaser to sif^n memorandum of 
 sale, 84 
 
 except when seUinj^ his own property, H4 
 of vendor until hammer falls, 84 
 signature of, fulfils statutory formalities on sale, 84, 92 
 
 AWARDS, 
 
 proof of, 255 
 
 BAILEE, 
 
 attornment as affecting position of, 158, 161, 178, 187 
 buyer as seller's, effect of disposition bv, 124 
 delivery of goods to, for transmission to buyer, effect of, 146, 
 
 'l47, 179, 180, 185 
 " delivery order " to, meaning of, 193 
 delivery to carrier as, 168 
 
 duty of, on notice of stoppage in transitu, 190 
 seller's agreement to hold goods as buver's, effect of, 125, 175, 
 
 178 
 \vrt)ngful refusal of delivery b\ , ('dVct of, ls9, 191 
 
 BAILMENT, 
 
 distinction between, and exchange, 5 
 sale, 4, 5 
 BANKRUPTCY, 
 
 adjudication in, proof of, 255 
 
 annulment of, proof of, 255 
 
 effect of, 108, 116, 178, 182, 286-288 
 
 searches for, 264 
 
 trustee in, powers of : See Trustek. 
 
 BARTER, 
 
 sale distinguished from, 4 
 
 BEDFORD LEVEL, 
 
 registiation of title to lands in, 265, 327 
 
 BENEFICIAL OWNER, 
 
 covenants for title implied on conveyance by vendor as, 316, 
 
 322 
 BENEFICIARY, 
 
 rights of, enforced through his trustee, 10 
 
 against his trustee, 80, 81 
 transactions between trustee and, 20 
 
 BIDDINGS, see Auction.
 
 414 INDEX. 
 
 BILL OF EXCHANGE, 
 
 inference as to interest when, given, 200, 212 
 
 lien terminated by acceptance of, 182 
 
 pa3-ment by, nature and effect of, 174, 206 
 
 remedy of seller where buyer fails to give agreed, 200, 212 
 
 stoppage in transitu defeated b}' acceptance of, in absolute 
 
 payment, 183 
 transmission of bill of lading to buver to secure acceptance 
 
 of, effect of, 146, 147, 148 
 
 BILL OF LADING, 
 
 buver's dutv to return, on non-acceptance of bill of exchange, 
 
 147 
 delivery of goods restricted bv, effect of, 147, 180, 186 
 
 by,' 146, 158 
 
 of, effect of, 183, 193 
 
 to ship-master, effect of, 186 
 demand for, a good stoppage in transitu, 190 
 lien preserved bv, 180 
 
 nature of, as a 'symbol, 124, 125, 158, 180, 192 
 operation of, 158," 192, 193 
 transfer of property by,, 146, 162, 193 
 
 BILLS OF SALE, 
 
 provisions relating to, not affected, 149 
 
 BIRTH, 
 
 proof of, 255 
 
 BOUGHT AND SOLD NOTES, 
 
 broker's, memorandum of contract formed bv, if identical, 31, 
 
 46, 96, 105 
 no contract if variance in, 31, 46, 105 
 no contract if, in absolute terms but sale subject to 
 conditions as to quality, 55 
 
 BREACH, see Action : Condition : Warranty. 
 
 BRrnSH SHIPS, 
 
 incapacity of aliens to hold or acquire, 10 
 
 BROKER : See Agent : Bought and Sold Notes. 
 distinguished from factor, 84, 91 
 functions of, 84, 91 
 implied authority of, 92 
 liability of, by usages of trade, 91, 107 
 signed entry by, effect of, 91, 105 
 when a contracting party, 91 
 
 BUILDING CONTRACTS, 
 
 nature of, 43 
 
 materials, contract for sale of, nature of, 43, 44 
 
 scheme, rights and liabilities of purchasers under, 331
 
 INDEX. 415 
 
 BUVHR, see Pi kc ii askk. 
 
 acceptance of j^'ouds by, 41, V2-2-\2\, 131, 17(1-172 
 actual receipt of goods by, 41, ll22, 124, V2') 
 attornment to, effect of, 158, 1(31, 17lS, 1S7 
 deemed to be insolvent, when, 17S, 1S4, is.5 
 definition of, 119 
 delivery at t)ption of, when, l.ji) 
 
 on b(jard vessel rhaiiered b\ , when deliverv to buver, 
 
 l>s.'lM) 
 of, how restrained, 1*^(3 
 to, by attornment, loS, lUl 
 
 carrier may be delivery to, l.jS, IGN, liiit. ISO 
 duty of, on ])urchase, 6G, 138 
 
 to accept and pay for goods bought, lo6 
 take goods bought, lo9 
 earnest given by, effect of, 41, 122, 12o, 12fJ 
 effect of c.i.f. contract as to risk of, 140 
 
 death of, 35, 116 
 election of, to treat breach of condition as breach oi warranty, 
 
 134, 135 
 equitable title of, how seller may defeat, 128 
 
 on sale of future goods, 127 
 exercise of judgment by, effect of, 66, 138 
 expenses of and incidental to receiving deliverv to be borne bv, 
 
 162 
 goods are at risk of, when, 148 
 
 implied conditions and warranties on sale to, 135-140 
 insolvency of, effect of, 157, 174, 177, 178, 182-185 
 intention of parties determines when prof>ertv ])asses to, 1, 
 
 143-149 
 liabilit}- of, for neglecting or refusing delivery, 172, 173 
 
 when valuer j^revented from making valuation, 
 
 54, 131 
 loss on sale falls on, 2 
 
 part payment by, effect of, 41, 122, 125, 126 
 property passes to, subject to intention of parties, 143-149 
 
 when goods ascertained on sale of unas- 
 certained goods, 143 
 reasonable price must be paid bv, where goods appropriated 
 by buyer, 130, 131 
 
 where no price fixed. 180 
 remedies of, 204-214 
 remedy of, on breach of agreement to sell, 2 
 
 condition, 70, 131, 132, 134 
 warranty, 70, 131, 132, 134, 209-211 
 non-delivery of goods, 2, 204-208 
 resale by seller to third party, 195-197
 
 416 INDEX. 
 
 Buyer- — continued. 
 
 resale or pledge by, effect of, 191-194 
 
 rights of, to examine goods before acceptance, 170, 171 
 
 when goods ordered are mixed with goods not 
 
 ordered, 163, 164 
 sold on credit, 157 
 wrong quantity delivered, 163 
 where delivery to be made bv instalments,' 165-168 
 
 176 
 risk of deterioration in transit is on, when, 169, 170 
 sale effects transfer of property to, 1, 143 
 seller and, must be different persons, 2, 3 
 title of, effect of writ of execution on, 155 
 on sale by person not owner, 149 
 in market overt, 151, 152 
 of stolen goods, 153 
 under voidable title, 152-158 
 undelivered goods must be paid for by, when, 129, 130 
 waiver of condition by, 134 
 wrongful refusal of carrier to deliver to, effect of, 189 
 
 C.I.F. CONTRACT, 
 
 meaning and effect of, 149, 162, 169, 170 
 
 CANCELLATION, see Rescission. 
 
 CAPACITY TO CONTRACT, 
 companies, 11-13 
 convicts, 11 
 corporations, 11-13 
 drunkards, 17 
 general rule, 10 
 infants, 13-17 
 lunatics, 17 
 married women, 17-19 
 of aliens, 10, 11 
 
 CARRIER, 
 
 attornment by, 158, 161, 187 
 
 delivery to, as buver's agent or at buver's request, effect of, 
 
 125, 146, 147, 168 
 when delivery to buyer, 157, 158 
 where seller reserves right of disposal, effect of, 
 
 168 
 ship-master as, effect of, 188, 189 
 duration of transit of goods in possession of, 185-188 
 duty of, on receipt of notice of stoppage in transitu, 190
 
 INDKX. 417 
 
 Carrier — continued. 
 
 liability of, on failuiv to comply with notice of stoppaj^e in 
 
 transitu, 191 
 lien of, for unpaid freight, 188 
 seller's duty as to contract with, 169 
 
 loss of lien on delivery to, 179, 180 
 wroni^fui refusal to deliver by, effect of, 189 
 CAVEAT EMPTOR. 
 
 meanintj and a|)i)lication of maxim, G6, 67, 138 
 
 CERTIFICATE : See S.\i,i£ undkr Okdkr oi-- Court : 'I'liiA-.. 
 CESTUI QUE TRUST : See Bkni:i-iciaky. 
 
 CHARTER-PARTY, 
 
 meaning of, 189 
 
 CHATTELS, 
 
 included within " goods," 42 
 
 sale of, when specific performance decreed on, 199 
 
 CHEQUE, PAYMENT BY : See Purciiask-monmcv. 
 
 CHILD : See Parent. 
 
 CHOSE IX ACTION : See Assignment 
 
 CLIENT : See Solicitor. 
 
 COLLATERAL AGREEMENT : See Warranty. 
 breach of, effect of, 73 
 
 COMMENDATION : See Intention : Opinion. 
 statements of, effect of, 73 
 
 COMMISSION AGENT: See Agent. 
 character of, 93 
 duties of, 93, 94 
 liability of, 94 
 rights of, 94 
 
 COMMITTEE : .See Bankruptcv : Lunatic. 
 
 COMP.ANY : See Corfor.ation : Sale under Lands Clauses Acts. 
 contracts ultra vires the, effect of, 9 
 non-existent, cannot contract, 9 
 when formed mav adopt contract made by promoter, 9 
 
 COMPENSATION, 
 
 assessment of, on compulsurs jjurchase, 361, 362 
 conditions of sale as to, for errors of description, 228, 231, 232, 
 
 234 
 damages for breach of contract are in the nature of, 199, 297 
 deterioration of property pending completion as subject of, 275 
 injurv bv severance on compulsory purchase, as subject of, 362
 
 418 INDEX. 
 
 Compensation — continued. 
 
 measure of, on compulsory purchase, 361, 362 
 mines and minerals left unworked as subject of, 362. 363 
 misdescription as subject of, 231, 235 
 rescission in lieu of, 228 
 specific performance with, 299, 303-305 
 
 vendor and purchaser summons mav deal with question of, 
 
 293, 294 
 when purchaser cannot insist on, 239 
 
 may be forced to take property with, 231, 232 
 vendor compelled to convev what he has with, 233, 234, 
 
 299, 305 
 where land taken under statutory powers, 356, 358, 361-362 
 
 COMPLETION OF SALE OF LAND, 322-326 
 adjustment of accounts on, 326 
 
 conditional on title being made, 222, 223, 235, 244, 296 
 conviction for treason or felony as affecting, 11 
 disposition by purchaser before, right of, 282, 283 
 effect of assignment by vendor pending, 281, 282 
 
 bankruptcy of purchaser pending, 287, 288 
 
 vendor „ 286, 287 
 
 death of purchaser pending, 284, 285 
 vendor ,, 283, 284 
 
 lunacy of parties pending, 291 
 winding-up of company pending, 288-290 
 writs of execution pending, 290 
 execution of conveyance on, 322, 323, 
 incidence of risk pending, 275, 276 
 maintenance of property pending, 274, 275 
 payment of interest where time for, fixed, 230, 231, 279, 280 
 
 not fixed, 280 
 purchase-money on, 323-326 
 possession pending, on sale of trust property, 341 
 rights of parties pending, 273-280 
 
 purchaser to title deeds after, 238 
 rights to rents and profits or possession pending, 235, 236, 274 
 
 277-279 
 time for, 229 
 
 vendor may refuse, when, 78 
 
 vendor's dutv where depending on consent of third parties, 237 
 where land compulsorily purchased, 363, 364 
 
 COMPULSORY ACQUISITION : See Sales under Lands 
 
 Clauses Acts. 
 CONDITIONAL OFFER : See Offer. 
 
 acceptance, see Acceptanxe. 
 
 payment, see Bill of Exchange.
 
 iNDi:x. 419 
 
 CONDITION, 
 
 agreement to sell becomes sale on fulfilment of, 120 
 
 becomes warranty, when, 131, 134, 135 
 
 breach of, effect of, 70, 131, 133 
 
 delivery of and payment for goods are concurrent, 156-157 
 
 express and implied, distinguished, 132 
 
 implied, as to bulk corresponding with sample, 139, 140 
 
 quality and fitness, 137-139 
 sale of goods may be subject to, 120 
 warranty distinguished from, 70, 131, 133 
 
 CONDITIONS OF SALE, OF LAND, 
 
 biddings under, 218 
 commencement of title, 220-222 
 completion, 229-230 
 conveyance, 237 
 covenants for title, 242 
 deposit, forfeiture of, 240, 241 
 
 payment of, 218-220 
 easements, 239, 240 
 fixtures, 241 
 functions of, 215, 216 
 generally, 215, 216 
 identity 'of property, 222, 223 
 interest on purchase-money 230, 231 
 misdescription, 231-235 
 objections and requisitions, 223-225 
 outgoings, 236, 237 
 payment of deposit, 218-220 
 
 interest, -230, 231 
 possession, 235 
 profits, receipt of, 235 
 rents, receipt of, 235 
 requisitions, 223-225 
 resale, 240, 241 
 rescission, 225-228 
 reserve price, 218 
 sale bv auction in lots, 242, 243 
 special, 241, 242 
 stamps, 238, 239 
 timber, 241, 242 
 title, 220-222 
 title-deeds, 238 
 vendor's reservations, 218 
 
 CONFIDENTIAL ADVISER, 
 
 position of, 82
 
 420 INDEX. 
 
 CONSENT, 
 
 mutuality of, essential, 1, 22 
 realit\- of, 61-82 
 
 effect of duress, 78-79 
 
 fraud, 75-78 
 
 misrepresentation, 69-75 
 
 mistake, 61-69 
 
 non-disclosure of material facts, 76-78 
 
 undue-influence, 79-82 
 
 CONSIGNMENT, 
 
 sale distinguished from, 7 
 
 CONTRACT, 
 
 assignment of rights and liabilities under, 110-117 
 
 building, 43 
 
 contract to enter into a, not recognised in law, 25 
 
 executed, 57, 58 
 
 for work and labour, 8 
 
 materials, 8 
 in writing, 37-40 
 
 ndmissibility of extrinsic evidence to explain, 39, 40 
 memorandum constituted by, 46-48 
 of sale, agreement to sell distinguished from, 5 / 
 definition of, 1, 119 
 essentials of, 1 
 formation of, 22-60 
 interpretation of, 122 
 open, meaning of, 215 
 or return, 5 
 parties affected bv, 9, 10 
 to, 9-21 
 
 description of, 48, 49 
 proceedings under, 9, 10 
 Uberrimae Fidei, 77, 78 
 under seal, 36, 37 
 writing generally exclusive evidence of, 38 
 
 CONVERSION : See Action. 
 
 CONVEYANCE, 
 
 companv, bv, when winding up resolutions recited in, 288-290 
 
 costs of, by whom payable, 237, 306 
 
 distinction between, and security, 6 
 
 enrolment of, 328 
 
 execution erf, 322-323 
 
 executors and administrators, by, 342 
 
 form and contents of deed of, 309-322
 
 INUKX. 421 
 
 CoN\KV.\NCK — CiDiti tilted. 
 
 form of, may l)c dealt with on vciitlor and purchaser summons, 
 
 purchaser settles, 2;17, 3UG 
 husband and wife, to, when as joint tenants, 309 
 joininj^ of jjarties for collateral purpoM's in, 3U8 
 morti^aj^ee, by, 34o 
 
 nominee of purchaser, to, necessary parties to, 30H 
 on sale, as root of title, 248 
 
 meanin}4 of, for purposes of Stamp Duty, 4, 327 
 
 Stamp Duty on, 326 
 
 where land within comjjulsory registrati<jn area, 267 
 order for, by Court, 307 
 parties to, 307-300 
 partners, to, 309 
 
 passing of fixtures and timber on, 241 
 preparation of, not necessarily an acceptance of title, 306 
 
 purchaser's rights as to, 306, 307 
 rectification of, 63, 328 
 registration of, 327 
 requisitions as to, 226 
 
 stipulations as to, in conditions of sale, 237, 238 
 trustees bv, 341 
 to, 309 
 under Settled Land Acts, 335, 336 
 vendor having no title cannot foi-ce purchaser to accept, from 
 
 real owner, 298 
 is trustee for purchaser until, 273 
 
 CONVICT, 
 
 capacity of, to contract, 11 
 
 COPYHOLDS, 
 
 iissurance of, 319-321 
 
 covenants for title on sale of, 321 
 
 customs of, proof of, 255 
 
 root of title on sale of, 249 
 
 title to be shown to, under open contract, 245 
 
 CORPORATION, 
 
 acquisition of land by, 13 
 
 at common law, 13 
 
 capacit\ of, to contract, 11-13 
 
 created by statute, 13 
 
 distinguished from its members, 11 
 
 must contract by means of agent, 11 
 
 under seal as a rule, 12 
 trading, mav enter into simple contracts, 12
 
 4^2 INDEX. 
 
 CORRESPONDENCE, 
 
 contracts by, rule as to, 32, 39, 46, 47 
 
 COSTS : See Expen.si£s. 
 
 COVENANTS, 
 
 affirmative covenants distinguished from restrictive, 329 
 benefit of, run with the land, 333 
 
 conveyance of part of land retained as affecting, 329, 330 
 disclosure of onerous or unusual, vendor's duty as to, 233 
 effect of, where connected with building scheme, 331 
 for title, condition as to^ where vendor a trustee or mortgagee, 
 
 23S, 242 
 conveyance of freeholds or leaseholds, in, 316 
 
 leaseholds, in, 316, 321, 322 
 copvhold, of, 321 
 devolution of, 329-331 
 further assurance, for, 315, 316 
 how limited, 316, 317 
 implied, how conveyed, 316 
 modern practice as to, 316 
 purchaser's rights in respect of, 315 
 quiet enjoyment ; free from incumbrances, 315, 316 
 rights to convey, 315, 316 
 what are, 315 
 
 where vendor is trustee or mortgagee, 316, 317, 322, 
 
 341 
 nature of purchaser's, 318, 322 
 
 vendor's, 315, 316 
 passing of benefit of, on conveyance of land retained, 319 
 performance of, proof of, 255 
 purchaser as to user, by, effect of, 318 
 sale bv co-owners, on, 317 
 
 person under compulsion, on, 317 
 tenant for life, on, 317 
 statutory, right to vary, 316, 317, 318 
 vendor's rights when land subject to restrictive, 329, 330 
 when running with the land, 329-331 
 
 CROPS : See Growing Crops. 
 
 CUSTOM, 
 
 of copyholds, proof of, 255 
 
 CUSTOMS AND USAGES : See Usage of Tradk. 
 effect of, 105, 106
 
 iNDix. 423 
 
 DAMAGES. 
 
 are br way uf coinpensatiun only, VM, 2\J7 
 assignee may sue vendor for, 283 
 
 breach of collateral agreement j^ives rise to action f..r, 7n. 131. 
 
 i;w, Uo 
 
 warranty as f^mund ft.r action in, 70, 131, 134, 
 
 13G, 20'J 
 default in delivery of instalment may be severable breach 
 
 giving rise to action for, 1(J7 
 for default in delivery of goods, 2, 13U, 197, 204 
 
 payment of purchase-money, 2, 130, I'J.j, I'JJ, 
 
 200 
 loss of bargain, 29(3 
 
 profit on re-sale, 205 
 non-acceptance of goods, 201 
 fraud as defence to action for, 7G 
 general and special, distinguished, 198 
 in action by infant, lo 
 liability of unpaid seller lo cnrrier in, 190 
 liquidated, 240 
 
 measure of, 198, 200-207, 210, 211, 297 
 mis-representation as i^round of action for, 75 
 nominal, meaning of, 198 
 on assignment by vendor, 281 . 
 
 on breach of agreement to sell or buy, 2 
 purchaser not entitled to, for loss of bargain, 29C 
 purchaser's action for, on bankruptcy of vendor, 286 
 recovery of, by principal against aj^ent, 99 
 rule of common law as to, 198, 208 
 special, meaning of, 212 
 
 when may be claimed, 212 
 specific performance decreed where, inadequate as remedv, 
 
 199, 208, 298 
 time for assessment of, 202-205 
 
 when principal liable in, for agent's fraud or mis- 
 
 representaion, 106 
 where buyer or seller ])revents valuation being made, 54, 131 
 
 DATE FOR COMPLETION : See Timi;. 
 conditions of sale as to, 229, 230 
 not of essence of contract, as a rule, 229 
 purchase-money not payable until, as a rule, 218 
 
 DE MI MM US AO.V CI RAT I -EX. 
 application of maxim, 163 
 
 " DEALERS' TALK," 
 
 reliance u()t)n, consequences of, 73
 
 424 INDEX. 
 
 DEATH, 
 
 contract not avoided by, when, 116, 283-285 
 determination of agency by, 108, 116 
 duties, payment of, proof of, 256, 258 
 effect of, generally, 35, 108, 116, 283-285 
 lapse of offer by, 35 
 proof of, 256 
 
 DEBENTURES : See Sales under Order of Court. 
 
 DEBT, 
 
 antecedent, assignment in consideration for, 194 
 
 DECLARATION : See Intention. 
 
 DEED, 
 
 enrolment of, proof of, 256 
 execution of, by attorney, proof of, 255 
 
 DEEDS OF ARRANGEMENT, 
 
 searches for, 264 
 
 DEFAULT, 
 
 meaning of, 230, 231 
 
 DEFECTS : See Caveat Emptor : Sale of Goods : Sale of 
 Land : Title. 
 latent and patent, 66-68, 137-139 
 
 DELAY, 
 
 in post, effect of, 34 
 
 DEL CREDERE AGENT : See Agent. 
 
 definition of, 85 
 commission, 7, 85 
 
 DELIVERABLE STATE, 
 
 expense of putting goods into, liability for, 162 
 meaning of, 162 
 
 DELIVERY OF GOODS, 
 
 acceptance of and, generally concurrent conditions, 157 
 
 a condition precedent to payment where sale on credit, 157 
 
 " as required," &c., meaning of, 165 
 
 at distant place, risk where, 169, 170 
 
 by attornment, 158 
 
 delivery of key of warehouse, 158 
 
 instalments, 157, 165-168 
 
 transfer of bill of lading, 158 
 constructive, 158, 161 
 delay in, effect of, 156, 160
 
 _ iNDi:x. 425 
 
 Delivhrv ok Goods — cuutinucd. 
 
 "directly," "as sium as possible," " inimcdi.itcl\," "on 
 d<'mand," " on rt'cjiicsi," " on notice," " forthwith," 
 " not later than ," i^vc., nicanini^ of, 160 
 
 duty of seller to make, loU, lo!) 
 
 effect of insolvency of buver on, lo7 
 
 expenses of and incidental to, 1G2 
 
 " ex quay or warehouse," I'A) 
 
 " ex ship," 159 
 
 extension of time for, 156, 161 
 
 " f.o.b.," meanin<f and effect of, 159 
 
 hour of demand or tender of, 162 
 
 how, may be made, 157, 158 
 
 less or greater than quantity ordered, 163 
 
 liability of buyer for refusing or neglecting, 172, 173 
 
 may be actual or constructive, 158 
 
 meaning of, 157 
 
 mixed with others not includi'il in contract, effect of, 163, 164 
 
 not generallv a condition precedent to payment, 157 
 
 payment for and, generally concurrent conditions, 156, 157 
 before, may be condition of contract, 157 
 
 place of, 156, 158, 159 
 
 suspension of cancellation of, 161 
 
 time of, 159, 160 
 
 to carrier, 158, 168, 169 
 
 when delivery to buyer, 168 
 
 where goods in possession of third person, 161, 162 
 sale on credit, 157 
 
 DELIX'ERY NOTE : See DocuMiiNT of Title. 
 effect of retention of, 124 
 ORDER, indorsement of, 193 
 meaning of, 193 
 
 DEMAND : See Di-i.ivkkv. 
 
 DEPOSIT, 
 
 auctioneer holds, as stakeholder, 219 
 
 forfeiture of, 219, 240, 241, 295 
 
 function of, 219 
 
 payment of, 218-220 
 
 recovery of, 219, 295-296 
 
 solicitor holds, as agent for vendor, 220 
 
 DEPRECIATION: See Di:ti:ri<)K\ti(>n : Maintknwck : Prkskr- 
 
 VATION. 
 
 DEPRECIATORY CONDITIONS, 
 
 sales bv trustees and mortgages subject to, 340, 345
 
 426 INDEX. 
 
 DESCRIPTION : See Sale of Goods : Sale of Land. 
 of parties in written contract, 48, 49 
 
 property, 50 
 sale of goods by, 136-137 
 
 DESTINATION, 
 
 appointed, meaning of, 186, 187, 188 
 
 final distinguished from, 186-188 
 
 DESTRUCTION : See Loss. 
 
 of property, price may be payable notwithstanding, 130 
 
 DETINUE : See Action. 
 
 DETERIORATION, 
 
 of goods in transit, incidence of risk of, 169, 170 
 of land, liability for, pending completion, 274, 275 
 
 DISCLAIMER : See Trustee in Bankruptcy. 
 
 DISCLOSURE : See Consent : Non-Disclosure. 
 
 DISCOUNT, 
 
 allowance of, by contract or usage, 200 
 
 DISENTAILING ASSURANCES, 
 
 proof of enrolment of, 256 
 searches for, 265 
 
 DISPOSAL, 
 
 reservation of right of, 147, 148 
 
 DISPOSITION OF PROPERTY : See Assignment. 
 by agents, 102, 103, 104 
 bv buver in possession, 153, 154 
 
 with assent of seller, 154, 191, 192 
 purchaser, pending completion, 273, 282 
 seller in possession, 195-197 
 vendor, pending completion, 281, 282 
 under Factor's Act, 103, 104 
 
 DISTRAINORS : See Distress, Sales UxNOER. 
 
 DISTRESS, SALE UNDER. 
 
 appraisement on, does not put an end to right to replevy, 366 
 must be signed and stamped, 366 
 not conclusive of value of goods, 366 
 to be at tenant's expense, 366 
 where necessary for purpose of, 367 
 appraisers «n, distrainor caniaot be one of, 366 
 number of, 366 
 who may be, 366 
 best price must be obtained at, 368
 
 iNDix. 427 
 
 Distress, Sale under — cuuiinucd. 
 disposal of overplus at, 368 
 
 effect of neglect or niismanagcnunt durinf,', 368 
 extends only to tjouds cmnprisfd in invi-nimx , 36.") 
 mode of, 367 
 
 disposal of goDcls at, may be in an\ urdn , 367 
 where wronijful or irreLiular, 368 
 no right of, at common law , MG.") 
 not compulsory, 365 
 
 except as to corn and growing crops, 365 
 notice and inventory of goods not necessary before, 365 
 notice before, irregular, effect of, 365, 366 
 must be in writing, 365 
 of amount of arrears not nee ess.iry, 366 
 service of, 365 
 parties to, 367 
 
 landlord cannot be purchaser, 367 
 place of, 367 
 
 removal to auction room for purpose of, 3fi7 
 time of, 366, 367 
 
 effect of premature and delayed, 366, 367 
 may be postjjoned by request, 367 
 where no repievx within live drtys, 366 
 
 fifteen days, 366 
 
 DOCK WARRANT : See DociMiiN r ck i rr-i.ii 
 effect of, 193 
 
 DOCUMENT OF TITLE, 
 
 Factor's Act as as affecting transfer of, 103, 104 
 meaning of, 192 
 
 transfer by buyer or owner of, effect of, 154, 101, 103 
 pledge, effect of, 153, 154, 194 
 of, mode of, 194 
 when carefully transferred, 191, 193, 194 
 requiring an attornment, 162 
 
 DOCUMENTS : See Akstk.utkd !)<.( imkms 
 lost, evidence as to contents of, 253 
 
 DOUBTFUL TITLE, 
 
 specific performance may be refused on sal • with, 303 
 
 DRUNKARDS, 
 
 capacity of, to contract, 17 
 
 DURESS, 
 
 effect of, 78-79
 
 428 INDEX. 
 
 EARNEST, 
 
 definition of, 125, 126 
 payment of, effect of, 122, 126 
 
 EASEMENTS, 
 
 circumstances of the case may negative implied grant of, 314 
 
 conditions of sale as to existing, 239 
 
 contract for sale includes only such, as are legally appendant 
 
 or appurtenant to the land sold, 313 
 creation of, by reservation, 314 
 
 nature and extent of, should be expressly reserved, 314 
 necessary, pass under contract for sale, 313 
 non-disclosure of, effect of, 233 
 objection to undisclosed, an objection to title, 226 
 particulars of sale should refer to, 217, 239 
 provisions of Conv. Act, 1881, as to, 312, 313 
 purchaser's right to, determinable on vendor and purchaser 
 
 summons, 293 
 requisitions and inquiries by purchaser as to, 260 
 vendor's duty to disclose, 239 
 
 EMBLEMENTS, 
 
 defined, 42 
 sale of, 42, 43 
 
 ENEMY : See Alien Enemy. 
 
 ENROLMENT : See Conveyance. 
 proof of, 256 
 
 EQUITY OF REDEMPTION : See Mortgage : Mortgagor. 
 
 ERRORS IN DESCRIPTION : See Misdescription. 
 
 ESCROW, 
 
 meaning of, 37 
 
 ESTATE AGENT : See Agent. 
 authority of, 93 
 business of, 84, 85 
 duty of, 93 
 
 ESTATE DUTY, 
 
 payment of, proof of, 256 
 
 EVIDENCE : See Title. 
 
 extrinsic, admissibility of, 31, 39, 40, 48, 50, 63 
 
 of mercantile meaning of terms in broker's notes, 31 
 
 parol, admissibility of, 48, 50, 63 
 
 EXAMIN.ATION OF GOODS, 
 
 buyer's right of, before acceptance, 170, 171
 
 I
 
 INDEX. 429 
 
 EXCEPTIONS : See Rkskkvations. 
 
 EXCHANGE, 
 
 sale distinguislu'd frmn, I 
 
 EXECUTED COXTRAC I, 
 
 meaninj4 and offcrt of, 1, 2 
 
 EXECUTION, 
 
 writs of, efTect of, 155, 29i) 
 
 EXECUTORS AND ADM INIS 1 RA'I ORS. 
 
 covenants implied where persons convex as, 242, MKi, ;122 
 description of, in nienioranduni of contract, 49 
 enforcement of contracts !>> and atfainsl, 1(1, 116, 283-285, 342 
 power of sale of, 341, 342 
 
 purchasins:;' assets of testator or interest of legatee, position of» 
 
 81 
 vesting of property in, 341-342 
 
 EXECUTORY CONTRACT, 
 
 meaning and effect of, 1, 2 
 
 EXPENSES, 
 
 liabilitx- for, for stamps on documents, 238, 239, 294 
 
 of and incidental to delivery of goods, 102 
 agent, 100 
 
 attested copies of deeds, 23S 
 making and delivering abstracts, 251 
 perusal and execution of conveyance, 237, 238 
 
 294 
 preparation of conveyance, 237, 3(Hi 
 production of deeds, 222, 252-253 
 repairs pending completion, 275 
 searches, 294 
 on c.i.f. contract, 162 
 
 f.o.b. contract, 159, 162 
 re-deliverv of goods after stoppage, 19ll 
 pending completion on sale of land, 236, 237, 279 
 recovery of, on repudiation by jjurchaser, 295-297 
 
 EXPRESSIONS : See Intkntion : Opinion. 
 
 EX QUAY OR WAREHOUSE, 
 
 sale of goods, effect of, 159 
 
 EX SHIP, 
 
 sale of goods, effect of, 159 
 
 l-:XTRAORDIXARY PURPOSES: See Sales undkk Lands 
 Clauses Acts.
 
 4o0 INDEX. 
 
 FACTOR : See Agent. 
 defined, 83 
 implied authority of, 90, 91 
 
 FAILURE OF CONSIDERATION, 213, 214 
 
 FALSE DEMONSTRATION, 
 
 rejection of, 65 
 
 FALSE REPRESENTATION : See Misrepresentation. 
 
 FEE SIMPLE, 
 
 limitation of estate in, words necessary, 315 
 
 FELONY, 
 
 conviction for, as affecting contractual rights, 11 
 
 FIDUCIARY CAPACITY, 
 
 contracts by persons standing in, 20, 21 
 
 FIRE, 
 
 loss by, incidence of, 275, 276 
 
 FIRM,- 
 
 partnership, transactions of members of, 21 
 
 FITNESS, 
 
 of goods, implied condition as to, 137-139 
 
 FIXTURES, 
 
 compensation for removal of, a question determinable on 
 
 vendor and purchaser summons, 294 
 conditions of sale as to, 241 
 sale of, when within Sec. 4 of Statute of Frauds, 44 
 
 FORFEITURE OF DEPOSIT, 
 
 provisi m for, 219, 240 
 when arising, 240, 241 
 
 FRAUD : See Consent : Non-disclosure. 
 defined, 75 
 effect of, 75, 76 
 rescission of contract on ground of, 76 
 
 FREEDOM FROM INCUMBRANCES : See Incumbrances. 
 implied covenant for, 50, 315, 316 
 
 warranty as to, 135 
 nature of covenant for, 316 
 
 FREEHOLDS : See Title. 
 
 conveyance of, consideration on, 310, 311 
 
 covenants bv purchaser on, 318 
 for title on, 315-319 
 description of parcels in, 311 
 exceptions and reservations on, 314 
 form and contents of deed of, 309
 
 iNPKx. 4;U 
 
 Freeholds — continued. 
 
 conveyance oi—conlintted. 
 
 general words in, use aiiij t-ffect of. 312, 313, 
 
 314 
 habendiiin in, function of, 315 
 operative words in, 311 
 recitals in, 309, 310 
 root of title on sale of, 248 
 title to be shown to, under open contract, 220, 245 
 
 F.O.B. CONTRACT, 
 effect of, 159, 169 
 
 expenses incidental to delivery under, 162 
 place of delivery under, 159 
 
 FRUCTUS INDVSTRIALES and FRICTI'S XATURALES : 
 See Emblemknts : Growing Crops. 
 
 FURTHER ASSURANCE, 
 covenant for, 315, 316 
 
 FUTURE GOODS, 
 
 as subject-matter of contract, 127 
 definition of, 127 
 
 present sale of purported, effect of, 127 
 seller's power to contract to sell, 127, 128 
 when appropriated to the contract, 146 
 
 GAVELKIND, 
 
 sale of infant's land by custom of, 17 
 
 GENERAL PROPERTY, 
 
 special property distinguished from, 3 
 
 GENERAL WORDS, 
 
 usual to omit, in conveyance, 312 
 
 *' GENERIC " GOODS, 
 
 sale of, effect of, 129 
 
 GIFT, 
 
 sale distinguished from, 6 
 
 GOODS : See Sale of Goods Act, 1893. 
 
 definition of, within Sale of Goods Act, 42 
 
 " GRANT," 
 
 use of word, effect of, 311 
 
 GROWING CROPS, 
 
 sale of, 42, 43 
 
 GUARDIAN, 
 
 agreements between ward and, 20, 82
 
 432 INDEX. 
 
 HABENDUM, 
 
 function of, 315 
 
 " HEADS OF AGREEMENT," 
 
 effect of, 37 
 
 HEIRS, 
 
 use of word, unnecessary in limitation of fee simple estate, 315 
 
 HOSTILITIES, 
 
 effect of, 11 
 
 HOUSE, 
 
 meaning of, under Lands Clauses Acts, 360 
 
 HOUSE AGENT : See Estate Agent. 
 HUSBAND AND \\TFE : See Married Women. 
 
 IDENTITY, 
 
 of contracting parties, mistake as to, 64 
 of propert}^ evidence of, conditions as to, 222 
 
 proof of, 256 
 
 mistake as to, effect of, 65 
 
 IGNORANT PERSONS, 
 
 transactions with, presumption as to, 82 
 
 ILLITERATE PERSONS, 
 
 tranactions with, presumption as to, 82 
 
 IMPLIED CONDITION, 
 
 as to fitness, 137, 138 
 
 merchantable quality, 137, 138 
 
 quality or fitness for particular purpose, 137 
 
 may be annexed by usage of trade, 137 
 
 contract of sale by sample, 139, 140 
 
 mav be negatived by express agreement, 138 
 
 on what founded, 132 
 
 operation on contract of sale, 135 
 
 part of the seller, on the, 135 
 
 IMPLIED COVENANTS FOR TITLE, 
 
 how conveyed, 316, 317 
 
 IMPLIED UNDERTAKING .^S TO TITLE, 135, 136 
 
 IMPLIED WARRANTY, 
 
 for freedom from charges or incumbrances, 135 
 quiet possession, 135 
 on what founded, 132 
 iiegatived by usage of trade, 138 
 where none, 67
 
 ,
 
 INDEX. 433 
 
 IMPROVEMENTS, 
 
 expenditure on, as act of part performance, 60 
 
 purchaser entitled to, without further payment under con- 
 tract, 275, 276 
 
 representation b\ vendor of intention to malvc, effect of, 74 
 
 vendor not bound to i'.\]H'nd nmnev on, pending completion, 
 
 275 
 INCIDENCE OF RISK: See Loss: Risk. 
 INCLOSURE AWARD, 
 
 as root of title, 248 
 
 expenses of production, by whom payable, 252 
 
 proof of, 255 
 INCUMBERED EAND, 
 
 sale of, 307 
 INCUMBRANCERS, 
 
 joining of, as parties on conveyance, 307 
 
 payment to, in discharge on sale, 324, 325 
 
 when concurrence of, unnecessary, 307 
 INCUMBRANCES, 
 
 abstract should show vendor can convey free from, 251 
 
 concealment of, liability for, 250 
 
 discharge of, on sale, 307 
 
 evidence of title as to,. 250, 270 
 
 registration of title subject to, 268, 269, 270 
 
 requisitions as to, 226, 260 
 
 searches for, 262-266 
 
 specific performance refused where trustees agreed to dis- 
 charge, 302 
 
 statutory covenant bv trustees, mortgagees, etc., as to, 242, 
 
 316, 317, 341 
 
 vendor's dutv to disclose, 217, 315 
 
 rights as to, on conveyance, 315 
 
 INDE.MNITY, 
 
 contract of insurance is a contract of, 277 
 purchaser's covenant for, 318, 319, 322 
 seller's liability for, in case of undelivered goods, 185 
 vendor entitled to, as trustee for purchaser, 273 
 where deficiency on sale of land, 234, 235 
 INDEPENDENT ADVICE, 
 
 necessity for, 82 
 INF.ANTS, 
 
 contracts of, at common law, 13 
 
 enforcement of, 15, 298 
 
 provisions of Infant's Relief Act, as to, 14, 15 
 
 valid, 16, 17 
 
 voidable at option of infants, 15 
 
 28
 
 434 INDEX. 
 
 Infants — continued. 
 definition of, 13 
 
 " necessaries " supplied to, meaning and effect of, 16, 120 
 purchase of necessaries by, 15, 16, 120 
 purchases and sales of land by, 16 
 recovery of purchase-money paid bv, when possible, 16 
 specific performance not decreed at suit of, 15, 298 
 
 " IN FEE SIMPLE," 
 
 limitation of estate, effect of, 315 
 
 •• IN GOOD FAITH," 
 meaning of, 151 
 
 INQUIRIES : See Caveat Emptor, 
 
 matters in which should be made, 260, 266 
 purchaser, by, nature of, 260 
 tenancies as subject of, 266 
 
 INSOLVENT BUYER, 
 
 definition of, 178, 184 
 
 seller's lien on goods sold to, 177 
 
 right of stoppage in transitu in case of, 182 
 
 INSTALMENT, 
 
 contracts, damages on breach of, 200, 202, 206 
 delivery of goods under, 165-168 
 unpaid seller's rights under, 176, 179 
 
 INSURANCE, 
 
 contract of, is a contract of indemnity, 277 
 inquiries as to, of land, 260 
 
 proceeds of policy of, purchaser not entitled to, on loss or 
 destruction of property, 276, 277 
 
 INTENTION, 
 
 course of dealing between parties as evidence of, 148 
 declarations of, not offers, 23 
 determination of, of parties, 4 
 
 extrinsic evidence of, not generally admissible to vary or 
 explain writings, 39, 40 
 
 where ambiguity as to subject-matter of 
 contract, 65 
 misrepresentation of, effect of, 74 
 
 nature of transaction subject to, of parties, 4, 6, 7, 37, 85 
 rectification of document by Court to give effect to, 63 
 signature to document subject to, 63 
 statements of, effect of, 73 
 
 time of passing of property on sale depends on, 143-147 
 whether representation a condition or warranty depends on, 
 
 69, 131
 
 I
 
 INDEX. 435 
 
 INTEREST, 
 
 award by way of damaj^es, 212 
 
 date from when runniriff, 212, 230, 279, 280 
 
 inference as to, where bill or note j^iven, 212 
 
 mortgaj;*ee's rights where, in arrear and unpaid, 343 
 
 payable on price by agreement, 230 
 
 payment of, a question determinable on vendor and purchaser 
 
 summons, 293 
 vendor's or purchaser's rights as to, 230, 231, 279, 280, 295 
 usual rate of, 280 
 
 INTESTACY, 
 
 proof of, 2.56, 257 
 
 IN TRANSITU : See Stoppage in transitu. 
 INTRODUCTORY RECITALS, 309 
 
 LAND, 
 
 charges, f.earches for, 264, 265 
 interests in, what may be, 42, 43 
 
 licence to enter on, interest in land not conferred by, 43 
 to remove goods, irrevocability of, 44 
 sale of thing attached to but severable by buyer from, 42-44 
 
 LANDLORD, 
 
 description as, insufficient, 49 
 
 LAND REGISTRY: See Rfx.istration of Title. 
 searches to be made at the, 263-266 
 
 LAND TAX, 
 
 redemption of, proof of, 257 
 
 LAND TRANSFER ACTS, 
 
 searches in respect of registration under, 263-266 
 
 LANDS CLAUSES ACTS : See Registration of Title : Sales 
 UNDER Lands Clauses Acts. 
 
 LAPSE OF OFFER, 
 
 by death, 35 
 
 LARCENY, 
 
 of goods, effect of, 153 
 
 revesting of stolen property on offender's conviction for, 153 
 
 vesting of goods obtained by fraud not amounting to, 153 
 
 LATENT AMBIGUITY, 65 
 
 LATENT DEFECTS, 66
 
 436 INDEX. 
 
 LEASEHOLDS : See Tni.i:. 
 assurance of, 321-322 
 
 covenants bv purchaser in, 322 
 for title in, 321, 322 
 
 description of parcels in, 321 
 
 how made when sold in lots, 322 
 
 recitals in, 321 
 purchase of, by infant, 16 
 root of title on sale of, 249 
 
 title to be shown to, under open contract, 220, 245 
 vendor's duty on sale of, pending completion, 275 
 
 LEASES, 
 
 proof of, 257 
 
 LEGACIES, 
 
 discharge of, proof of, 257 
 
 LETTERS, .' 
 
 contracts formed by, 32, 33, 39, 45, 46-48 
 
 LICENCE, 
 
 buyer's right to remove goods from seller's land under, 
 
 43, 44, 159 
 LIEN, 
 
 abandonment of 125 
 
 agent's right of, 100, 101 
 
 carrier's right of, on stopped goods, 188 
 
 definition of, 177 
 
 delivery of instalments as affecting seller's right of, 179 
 
 effect of judgment on, 180 
 
 part delivery on exercise of, 178, 179 
 exercise of right of, 176, 177 
 existence of, 177 
 extent of, in case of goods, 177 
 extinction or loss of, 101, 179, 181 
 " general," meaning of, 101 
 how liable to be defeated, 191-194 
 loss of, bv seller, 179-181 
 
 rule as to, 179, 180 
 of factor, 103 
 
 part delivery as affecting seller's, 178, 179 
 " particular," meaning of, 101 
 pledge distinguished from, 5 
 preservation of, by bill of lading, 180 
 purchaser's, for money paid pending completion, 250 
 redelivery of goods to seller as revesting, 181 
 rescission not effected b\- exercise of seller's right of, 194, 195 
 revival of, after waiver, 178
 
 I NDEX. 437 
 
 Lien — continued. 
 
 sale by buyer as atfecting seller's, 191-194 
 
 unpaid seller after exercising his right of, effect of, 
 
 rjo-197 
 nut rescinded by exercise i»f right of, ]<J4, lUo 
 seller's atturnment as affecting, 17>^ 
 sub-agent's right of, lUl 
 termination of, 179-181 
 
 vendor's, for unpaid purchase-money, 1(1, 171, 177-1^2, 2b0 
 Nvaiver of, 179-182 
 LIQUIDATOR, 
 
 powers and duties of, 288-290 
 
 LIS PE\'DE.\S, 
 meaning of, 263 
 searches for, 263 
 
 LOCAL AUTHORITIES, 
 
 expenses payable to, liability for, 236, 237, 27!', 326 
 power to acquire and hold land, 13 
 
 LOSS, 
 
 incidence of, 2, 129, 130, 169, 170, 27o, 276 
 
 of bargain, damages for, not claimable as a rule, 296 
 
 profit on resale, damages for, not claimable as a rule, 205 
 
 LOST DOCUMENTS, 
 
 evidence as to contents of, 2o3 
 
 LOTS, 
 
 custody of title deeds where property sold in, 242, 243 
 effect of building scheme where sale in, 331 
 purchaser's right to abstract where sale in, 243 
 sale of leaseholds in, how effected, 322 
 
 LUNACY, 
 
 effect of, 291 
 
 orders in, proof of, 257 
 
 LUNATICS, 
 
 capacity of, to contract, 17 
 committee of, powers of, 17 
 
 MAINTENANCE, 
 
 of property, vendor's duty as to, when in possession pending 
 completion, 274, 275 
 
 MANAGING PARTNER, 
 
 transactions between firm and, 21 
 
 MANSION HOUSE, 
 
 sale of, 334
 
 438 INDEX. 
 
 MANUFACTORY, 
 
 meaning of, within Lands Clauses Acts, 361 
 
 MANUFACTURED GOODS, passing of property in, 127 
 
 MARKET OVERT, 
 
 efTect of sale where seller again becomes owner, 152 
 exemption as to sale of horses in, 151 
 passing of propert\ on sale in, 151, 152 
 meaning of, 151, 152 
 
 MARKET PRICE, 
 
 as a measure of damages, 201, 202, 204, 205, 207 
 
 when not applicable, 207 
 what is the, 205 
 
 MARKETABLE TITLE, 
 
 definition of, 244, 341 
 
 vendor's duty to make, 244, 341 
 
 MARRIAGE, 
 
 proof of, 257 
 
 MARRIED WOMEN, 
 
 acknowledgments of, proof of, 253 
 
 searches for, 265 
 contracts of, at common law, 17 
 
 in equity, 18 
 
 under statute, 18, 19 
 
 MATERIAL FACT, 
 
 avoidance of contract for non-disclosure of, 67, 76, 77 
 false representation by vendor as to, effect of, 70, 71 
 
 MATERIALS, 
 
 building, contract for sale of, 43 
 
 contract for work and, sale distinguished from, 8 
 
 MEASURE OF DAMAGES : See Damages. 
 
 MEMORANDUM OR NOTE IN WRITING,' 
 
 agreement of party charged must appear from, 54 
 broker's bought and sold notes as constituting, 46 
 contained in several writings, 46-48 
 contents of, 48 
 
 contents of lost original, mav be proved bv secondary evidence, 
 
 44 
 contract in writing is sufficient, 44 
 
 document signed by party to be charged when sufficient, 45 
 instances of sufficient, 45, 46 
 must agree with contract charged, 54, 55 
 
 contain all material terms, 54, 55 
 no special form of, required, 44 
 parties to contract, how described in, 48, 49
 
 INDIA'. 439 
 
 MiiMORANDl'M OK NoTK IN Wkitisi: -cotitintied. 
 price must appear in, 51, 52 
 property sold, how described in, 4l>, 50 
 signature of, by agent, 56 
 
 party to be charged, 55, 56 
 may be printed, stamped, etc., 56 
 place for, 56 
 what writings sufficient to constitute, 44-46 
 when to be made, 44 
 MERCANTILE AGENT, 
 
 dispositions by, 103, 104, 150. 153, 154 
 
 MERCANTILE CONTRACT, 
 
 effect of usages of market upon, 89, 92 
 
 MERCANTILE USAGE, 
 
 broker impliedly autht)rised to contract subject to, 92 
 
 contract may be subject to, 66, 105. 148, 180 
 
 evidence as to, 40, 107, 164 
 
 implied conditions as to qualit\ and fitness mav be negatived 
 by, 138 
 
 principal may be bound by, 106 
 MERCHANTABLE QUALITY, 
 
 when a condition, 137 
 
 when goods are of, 139 
 MERGER, 
 
 of verbal agreement in written contract, 38 
 MIDDLESEX, 
 
 registration of document of title in, 327 
 proof of, 258 
 
 searches in registry of, 265 
 MINES AND MINERALS, 
 
 com[X'nsation for, on compulsory purchase of land, 362, 363 
 
 sale of, by mortgagee, 344 
 
 tenant for life, 339 
 trustees, 338, 339 
 
 what are, 363 
 MISDESCRIPTION, 
 
 compensation for, provisic)n for, 231-23S 
 
 MISREPRESENTATION, 
 
 avoidance of contract on ground of, 74, 75 
 
 damages for, 75 
 
 definition of, 69 
 
 effect of, 70, 71 
 
 innocent, effect of when material, 71 
 
 material, what is, 71 
 
 matter of opinion distinguished from, 73
 
 440 INDEX. 
 
 Misrepresentation — continued. 
 mistake distinguished from, 69 
 must be material, 71 
 
 relied upon, 72, 73 
 form material inducement, 71, 72 
 rescission on account of, 75 
 restitution on account of, 75 
 
 MISTAKE, 
 
 as affecting reality of consent, 61-69 
 to act of agreement, 63 
 
 existence of property, 65, 66 
 
 expression of agreement, 63 
 
 extent of property, 68 
 
 identity of other contracting party, 64 
 property, 65 
 
 nature of transaction, 64 
 
 price, 68, 69 
 
 quality of subject-matter of contract, 66-68 
 
 quantity of subject-matter of contract, 68 
 
 subject-matter of contract, 65-69 
 at sales by auction, 24 
 
 by one party to knowledge of other party, 64, 65 
 modes of, 61, 62 
 nature of, 61 
 of fact, 62, 63 
 of law, 62 
 MIXED GOODS, 
 
 buyer's liability on consuming, 164 
 
 delivery by seller of, buyer's right as to, 163, 164 
 
 MONEY-PRICE : See Price. 
 
 " MORE OR LESS," 
 
 effect of words and expressions such as, 68, 164 
 
 MORTGAGE, 
 
 abstracted documents need not include equitable charges by 
 
 way of, paid off, 250 
 should include instruments of, 249 
 conveyance subject to, right of vendor to, 315 
 defined, 6 ■ 
 
 distinguished from pledge, 5 
 sale, 6 
 
 sale with option of re-purchase, 6 
 equitable, creation of, where land registered, 271 
 legal, as root of title, 248 
 purchaser's rights as to outstanding, 307 
 transaction bv w^av of, excluded from operation of Sale of 
 Goods Act, 1893, 119
 
 i
 
 INDEX. 441 
 
 MORTGAGEE, 
 
 covenants for title implied on sale b\ , 242, 31G, ;}22 
 description as, sufficient for purposes of memorandum, 49 
 equitable, cannot convey legal estate, even thoui^h mortgage 
 
 by deed, 345 
 is answerable for loss due to ncgligonro of hinis«.df or his 
 agent, 346 
 liable as trustee for balance of mi>fiey after pavment to 
 
 himself of principal, interest and costs, 346 
 not answerable to mortgagor for loss on sale subject to 
 
 depreciatory conditions, 34o 
 not a trustee when exercising power of salo, 34o 
 may impose restrictions as to building, etc., 344, 345 
 no implied power of sale in, where mortgage not by deed, 343 
 parties to suit by, 10 
 payment to, on completion, 325 
 
 person damnified by improj^er exercise of power of sale by, 
 has remedy in damages, 345 
 
 paying purchase-money to, not concerned whether 
 money remains due on the mortgage, 325 
 powers of, to convey, 345 
 
 where land registered, 271 
 purchaser not concerned to see or inquire whether case has 
 arisen to authorise sale by, 345 
 power of sale properly exercised by, 345 
 receipt of, a sufficient discharge for money arising on sale 
 
 under statutory power, 325 
 sales by, 343-346 
 statutory power of sale of, 343-344 
 
 effect of foreclosure decree on, 346 
 surviving, receipt of, 325 
 where part only of land sold, may create easements, 344 
 
 MORTGAGOR, 
 
 covenants for title implied on sale bv, where land registered, 
 
 271 
 in possession, purchaser in possession pending completion 
 
 resembles, 279 
 parties to suit against, 10 
 MUNICIPAL AUTHORITIES : See Local Authorities. 
 
 MUTUAL ASSENT, 
 
 how expressed or implied, 22 • 
 
 NARRATIVE RECITALS, 309 
 NECESSARIES, 
 
 contracts for, 13, 15, 120 
 meaning of, 16, 120
 
 442 IND EX. 
 
 NECESSITY, 
 
 agency of, 85, 86 
 
 presumption as to transactions withj person under pecuniary, 82 
 NEGLIGENCE, 
 
 liabilty of agent for, 94, 97 
 
 NEGOTIABLE INSTRUMENT, 
 
 paj'ment by, nature of, 174, 183 
 
 NEGOTIATIONS, 
 
 preliminary, 37 
 subsequent, 32 
 NOMINEE, 
 
 parties to conveyance to, 302 
 
 NON-ACCEPTANCE, 
 
 seller's right to damages for, 201 
 
 NON-DELIVERY, 
 
 buyer's right to damages for, 204 
 
 NON-DISCLOSURE, 
 
 avoidance of contract on ground of, 77 
 by purchaser, effect of, 77 
 vendor, effect of, 77 
 
 NOTE OR MEMORANDUM : See Memorandum. 
 
 NOTICE TO TREAT, 
 
 abandonment of, 360 
 
 cannot operate indefinitely, 360 
 
 compulsory power not exhausted by single, 359 
 
 contents of, 358 
 
 effect of, 358-360 
 
 land included in, 358 
 
 service of, 357, 358 
 
 when unnecessary, 358 
 
 withdrawal of, 359, 360 
 
 OBJECTIONS, 
 
 to title, condition as to, 223 
 
 rescission on non-removal of, provision for, 225-223 
 waiver of, what will amount to, 823, 224, 261, 262 
 
 OCCUPATION RENT, 
 
 when allowed against vendor, 278 
 
 OFFER, 
 
 conditional, 24, 25 
 continuing, 23 
 counter, 30 
 implied from conduct, 22
 
 Offer — continued. 
 lapse of, 35 
 revocation of, 34, 35 
 standing, 23 
 
 OFFICIAL SEARCHES, 
 
 requisitions for, 266 
 
 OPEN CONTRACT, 
 nature of an, 24 
 
 OPERATIVE WORDS, 
 
 nature of, in conveyance, 311 
 
 OPINION, 
 
 statements of, effect oi, 73 
 
 misrepresentation distinguished from, 73 
 OPTION, 
 
 to purchase or sell, when sale arises under, 2, 5 
 
 ORDER OF COURT : See Sales under Order or Court. 
 
 ORDERS AND PROCEEDINGS OF COURT, 
 
 proof of, 257 
 searches for, 262, 263 
 
 OUTGOINGS, 
 
 meaning of, 236 
 
 provision in contract for payment of, 236, 237 
 
 vendor's obligation as to, 236, 237, 279 
 
 PARCELS, 
 
 description of, in deed of conveyance, 311, 321 
 
 PARENT, 
 
 transactions between child and, 20, 82 
 
 PAROL AGREEMENT : See Agreement. 
 
 EVIDENCE : See Evidence. 
 PART DELIVERY : See Deeiverv : Instalments. 
 
 PARTICULAR PURPOSE, 
 
 implied condition as to fitness for, 137 
 meaning of, 138, 139 
 
 PARTICULARS OF SALE : See Conditions of Sale. 
 ambiguity in, effect of, 216 
 contents of, 216, 217 
 function of, 215, 216, 217 
 misdescription in, effect of, 39 
 misrepresentation contained in, effect of, 216 
 omission from, effect of, 216
 
 444 INDEX. 
 
 PARTIES, 
 
 affected by contract, 9, 10 
 assignment by act of, 110-115 
 capacity of, to contract, 10-21, 120 
 description of, in memorandum of contract, 48, 49 
 number of, 9 
 to contract, 9-21 
 to conveyance, 307-309 
 PARTNERS, 
 
 transactions between, 21 
 
 PART PAYMENT, 
 
 definition of, 126 
 
 effect of Sale of Goods Act as to, 126 
 
 not sufficient part performance, 38, 59 
 
 PART PERFORMANCE, 
 
 acts of, must be referable to contract, 59 
 
 merely ancillary or introductory to completion of contract 
 not acts of, 59 
 delivery of abstract of title not an act of, 59 
 doctrine of, 12, 58-60 
 
 expenditure on repairs or improvements as acts of, 60 
 making valuations not actS( of, 59 
 must be by party enforcing the contract, 59 
 payment of part or whole of purchase-money not, 38, 59 
 
 rent in advance under verbal agreement for lease 
 
 not, 69 
 possession as an act of, must be taken under and after contract, 
 
 60 
 not per se sufficient, Gt) 
 usual acts of, 60 
 viewing property not an act of, 59 
 
 PASSING OF PROPERTY : See Transfer. 
 
 PATENT. 
 
 ambiguity, 65 
 defects, 66 
 PAWN : See Pledge. 
 
 PAYMENT : See Deposit : Purchase-money. 
 
 delivery of goods and, as concurrent conditions, 156, 157 
 PEDIGREE, 
 
 liability for falsification of, 250 
 
 PERISHED GOODS, 
 
 invalidity of contract for sale of goods not known to be, 128- 
 
 130 
 what goods included within, l^fiO
 
 ^^ INDEX. 445 
 
 PERSONAL REPRESENTATIVKS: See FCxkcutoks and Ad- 
 ministrators. 
 
 PETITION, 
 
 winding-up for, effect on company's contract, 288-290 
 PLACE OF DRLIXERY : See Di-i.ivkkv. 
 PLAN, 
 
 function of, in description of properly, 216, 311 
 PLEDGE, 
 
 lien distinguished from, 5 
 
 mortgage distinguished from, 5 
 
 sale distinguished from, 5 
 
 POLICY : See Insurance. 
 
 PORTIONS, 
 
 discharge of, proof of, 257 
 
 POSSESSION, 
 
 delivery or taking of, as part performance, 60 
 provision as to, 235, 274 
 
 rights of vendor or purchaser in, pending completion, 235, 
 
 236, 273-2S0 
 POSSESSORY TITLE : Sec RiiCiSTRATioN oi- Title. 
 proof of, 257, 258 
 
 POST, 
 
 contracts by, 33, 34 
 
 PRICE, 
 
 determined by valuation, 52 
 
 mode of ascertainment of, must be specified in memorandum 
 
 of contract if not fixed, 51 
 must if fixed be specified in memorandum of contract, 51, 52. 
 on sale of goods, how determined, 52 
 reasonable, may be implied by law, 52 
 where to be fair value of property, must be so stated, 52 
 subsequently arranged, effect of, 53 
 
 PRODUCTION OF TITLE DEEDS, 
 acknowledgment of right to, 238 
 
 PROFESSIONAL AGENTS : See Agent. 
 what implied as to, 95, 96 
 
 PROPERTY : See Parcels : Transfer. 
 
 description of, in memorandum of contract, 49, 50 
 general and special, distinguished, 3 
 
 PROPRIETOR, 
 
 description as, 49
 
 446 INDEX. 
 
 PUFFERS AT AUCTION, 
 
 position at common law, 78, 141, 142 
 rule in equity as to, 78, 142 
 statutory provisions as to, 78, 141, 142, 218 
 PURCHASE-MONEY : See Consideration : Deposit : Price. 
 absence of receipt for, effect of, 324 
 amount of, should be specified in conveyance, 310 
 deposit of, effect as to payment of interest, 219 
 devolution of, on death of vendor, 283, 284 
 inadequacy of, effect of, 6 
 
 on sale of reversion, 80 
 interest of vendor pending payment of, 272 
 
 on, condition as to, 230, 231, 279, 280 
 payment of, mode of, 98, 323 
 
 not a part performance, 38, 59 
 
 time of, 218, 229, 235 
 to agent, 219, 220, 323 
 
 incumbrancers, when necessary, 324, 325 
 solicitor, 220, 323, 324 
 purchaser's lien in respect of paid, pending completion, 280 
 receipt for, how given, 310, 323, 324 
 
 of mortgagee or trustee for, 325, 326 
 vendor cannot sue for original, after re-sale at a loss, 241 
 vendor's right to receive, how secured, 280 
 PURCHASER, 
 
 acceptance of title by, 223 
 
 act of bankruptcy bv, vendor's completion without notice of, 
 
 effect of, 288 
 as equitable owner pending completion, 273 
 bankruptcy of, pending completion, effect of, 287, 288 
 completion with bankrupt, effect of, 288 
 covenant of indemnity by, when necessary, 318, 319, 322 
 covenants as to user by, effect of, 318, 319, 329, 331 
 damages recoverable by, 297 
 
 delay in delivery of abstract to, rights on, 223, 224 
 devolution on death of, 284-285 
 discharge on purchase from tenant for life, 335 
 disposition before completion by, effect of, 282-283 
 duty as to disclosure, 77 
 
 expenses of production of evidence of title, when to be borne 
 by, 252 
 
 recoverable by wav of damages on vendor's breach, 
 
 297 
 
 may be shut out by alienee of vendor, 281 
 
 no remedy where statements mere puffing, 73 
 payment of interest by, when let into possession, 279, 280 
 money by, not a part performance, 38, 59
 
 _^ INDEX. 447 
 
 Purchaser — continued. 
 
 position of, after aj^recmcnt for sale, 273-280 
 
 recoverv of deposit by, 295, 296 
 
 registration of writ of execution as affecting rij^hts of, 290 
 
 remedies on vendor's non-disclosure of deftrts in title, 70,77 
 
 remedy of, where property alienated before completion, 281 
 
 282 
 
 repudiation for defect of title by, 296, 297 
 
 right to compel specific performance, 233, 234 
 damages for breach of contract, 297 
 good title, nature of, 244 
 prepare assurance, 306 
 repudiate contract, when arising, 296 
 
 rights and liabilities pending completion, 273-2sO 
 
 in respect of covenants for title, 315-319, 321 
 when in possession : See Possession. 
 
 searches to be made by, 262-266 
 
 settles form of assurance, 306 
 
 vendor not affected by erroneous opinion of, 60-67 
 
 vendor's remedies on bankruptcy of, 2^7-2!-^8 
 
 QUALIFIED TITLE : See Registration ok Title. 
 
 QUALIFYING WORDS, 
 
 effect of, such as " about," " mure or less,'' etc., 68, 164 
 
 QUALITY, 
 
 application of maxim caveat emptor to defects of, 66, 138 
 concealment of defects of, by vendor, efifect of, 67 
 descriptive statement as to, effect of, 136 
 implied condition or warranty as to, 137 
 
 on sale by sample, 139, 140 
 merchantable, implied condition as to, 137 
 
 when goods are of, 139 
 misrepresentation as to, effect of, 71 
 no implied warranty that land sold is of particular, 67 
 non-disclosure of defects of, by vendor, effect of, 67, 77 
 patent and latent defects of, 66, 67 
 statements of opinion as to, effect of, 73 
 vendor's duty of disclosure as to, 68 
 warranty of, not essential element of sale, 67 
 
 QUANTITY, 
 
 delivery of wrong, buyer's rights on, 163 
 material error as to, effect of, 68 
 qualifying words as to, effect of, 68, 164 
 
 QUASI-CONTRACTS, 121 
 
 QUASI-LIEN, 176
 
 448 INDEX. 
 
 QUIET ENJOYMENT, 
 
 covenant for, 315, 316 
 QUIET POSSESSION, 
 
 implied warranty of, 135 
 
 RATIFICATION 
 
 by infant, 14 
 
 of agent's contracts by principal, 96, 97 
 REASONABLE PRICE, 
 
 implication that sale to be, in case of goods, 52, 53, 130 
 
 sale at, not implied where memorandum silent on the ques- 
 tion, 52, 53 
 RECEIPT : See Actual Receipt : Purchase-money. 
 RECEIVING ORDER, 
 
 purchaser's risk on completion after, 286-287 
 
 RECITALS, 
 
 as evidence in support of title, 246, 247, 258 
 
 in assurance of leaseholds, 321 
 
 introductory, function of, 309, 310 
 
 narrative, function of, 309 
 
 object of, 309, 310 
 
 power, of. where exercised by conveyance, 310 
 RECITED FACTS, 
 
 proof of, 258 
 RECTIFICATION, 
 
 where mutual m.istake, 63, 65, 68, 69, 328 
 REDEMPTION, 
 
 of land tax, proof of, 257 
 REGISTERED LAND, 
 
 cautions in respect of, 272 
 
 charges or mortgages affecting, 271, 272 
 
 evidence of title on sale of, purchaser's rights as to, 250-251, 
 
 270 
 
 rights of persons claiming bv adverse possession in respect of, 
 
 272 
 
 searches to be made on purchase of, 265 
 
 transfers of, 270-271 
 REGISTRATION OF TITLE, 
 
 certificate of, 269, 270 
 
 compulsory, 266, 267 
 
 evidence of title to which purchaser entitled, 270 
 
 matters included in, 270 
 
 omission of, effect of, 267 
 
 to freehold, 268 
 leasehold, 269 
 
 voluntary, 267, 268
 
 . IXDKX. 449 
 
 REJECTED GOODS, 
 
 buyer not bound to rclurn, 172 
 REJECTION, 
 
 buyer's duty after, 172 
 
 delay in, as affecting acceptance, 172 
 
 exclusion of right of, 171 
 
 time for, what is reasonable, 172 
 
 REMEDY : See Action : Damagks : Srixii ic I'i.ki ormanci:. 
 RENT, 
 
 apportionment of, where land sold in lots is subject to an en- 
 tire rent, 243 
 
 occupation, when allowed against vendor, 27s 
 
 payment of, proof of, 258 
 
 RENT CHARGES, 
 
 apportionment of, where land sold in lots, 243 
 searches for, 263, 264 
 
 RENTS AND PROFITS 
 
 definition of, 278 
 
 entry into receipt of, effect of, 235, 278, 270 
 
 maintenance of property to be paid out of, pending completion, 
 
 279 
 right to possession or, pending completion, 235, 277-270 
 REPAIR, 
 
 expenditure of money for improvements and, as act of part 
 
 performance, 60 
 vendor's dutv to keep propert\- in, [)ending comi)I(tion, 274, 
 
 275 
 REPRESENTATIVES : See Executors and Administrators. 
 
 REPUDIATION, 
 
 "anticipatory " breach may amount to, 203 
 
 breach of collateral agreement does not justify, 70, 133 
 
 condition gives right of, 70, 131 
 buyer's default as equivalent to, 196, 295 
 
 intimation not to accept goods a, 262, 263 
 notice of his insolvency to seller may operate as, 203 
 principal's right of, on acts of agent, 98 
 purchaser's right of, on vendor's default, 296 
 resale bv seller without default on buvc-r's part equivalent to, 
 
 197 
 severable breach not sufficient to justify, 167 
 where purchaser cannot exercise right of, 200, 207 
 
 REQUISITIONS ON TITLE, 
 
 'delivery of, time of, 223, 224 
 failure to make, effect of, 223, 261 
 
 29
 
 450 INDEX. 
 
 Requisitions on Title — continued. 
 nature of, and objections, 260 
 practice as to, 260 
 
 requisitions as to conveyance distinguished from, 226, 228 
 rescission by vendor on insistenue on, 22o 
 waiver of, what may amount to, 223, 261, 262 
 when may be made out of time, 224, 225 
 
 RESALE, 
 
 lien distinguished from right of, 176 
 of goods, effect of, 196, 197 
 of land, provision for, 240, 241 
 
 vendor's rights as to, 240, 241, 297 
 stoppage in transitu distinguished from, 176 
 unpaid seller's right of, 174, 195-197 
 
 when arising, 195 
 RESCISSION, 
 
 " anticipatory " breach as effecting, 203 
 
 assignment as effecting, 111 
 
 buyer's delay in payment may not justify, 200 
 
 caution as to requisitions where vendor not bound to give 
 
 notice of, 261 
 exercise of unpaid seller's rights of lien and stoppage iii tran- 
 situ does not efYect, 195 
 fraud as ground for, 76, 328, 329 
 innocent misrepresentation not sufficient ground for, where 
 
 contract executed, 75 
 misrepresentation as ground for, 14, 328, 329 
 provision as to, 225-228 
 
 purchaser's mistake 'through non-circulation of particulars of 
 sale as ground for, 217 
 
 rightful repudiation operates as, 297 
 rights on, where vendor in default, 295 
 reasons for, need not be stated, 228 
 resale by seller effects, 196 
 right of, exercise of, 228, 295 
 
 a question determinable on vendor and purchaser 
 
 summons, 293 
 waiver of, bv commencement of action for specific 
 
 performance, 227 
 when arising, 225 
 
 lost or destroyed, 226, 227 
 mav not be exercised, 228 
 
 RESERVATIONS, 
 
 exceptions distinguished from, 314 
 
 express mention should be made of, 216, 217, 304
 
 _ INDEX. 451 
 
 Reservations — continued. 
 
 inclusion of, in conveyance, 314 
 
 mines and minerals may be subject of exceptions or reserva- 
 tions on conveyance of land, 338, 334, 339, 344 
 
 RESERVED BIDDING, 
 
 statutory provisions as to, 141, 218 
 vendor's rij^ht as to, 28, 141, 142 
 
 RESERVED PRICE. 
 
 effect where sale subject to, 141, 142 
 *;tatutory provisions as to 141, 218 
 vendor's right to fix, 78 
 
 RESTITUTION, 
 
 avoidance of contract is subject to possibility of, 75, 76, 296, 297 
 Court may direct, in a proper case, 328, 329 
 
 RESTRAINT ON ANTICIPATION, 17, 18 
 
 RESTRICTIVE COVENANTS, 
 
 affirmative covenants distinguished from, 329 
 benefit of, transfer of, 330 
 building scheme subject to, 331 
 
 conditions and particulars of sale should notice, 217, 239, 315 
 inquiries as to, by purchaser, 26'0 
 object of, 330 
 
 purchaser as affected by, 319, 329, 330 
 remedy by injunction against breach of, 330 
 rights of purchaser from common vendor under, 319 
 transfer of registered land subject to, 271 
 vendor's duty to disclose, 239 
 
 vendor not entitled to enforce contract subject to undisclosed, 
 
 233, 303 
 vendor's right to covenant of indemnity when land sold subject 
 
 to, 308, 318, 319, 322 
 when vendor entitled to insert, in conveyance, 315 
 not so entitled, 315, 319 
 
 RETRACTION OF BIDS, 35, 141 
 
 REVERSION, 
 
 sale of, 80 
 
 title on, 221, 246 
 
 REVOCATION : See Acceptance : Agency : Ofker. 
 
 RIGHT OF DISPOSAL, * 
 
 reservation of, 147, 148 
 
 RIGHT TO CONVEY, 
 
 covenant for, 315, 316
 
 452 INDEX. 
 
 RISK, 
 
 effect of c.i.f. contract as to, 149 
 
 incidence of, generally, 148, 149, 275, 276 
 
 on sale of perishable goods, 129, 130 
 
 when attaching to buyer, 66, 68, 73, 74, 148, 168-170, 275, 27& 
 
 seller, 148, 168-170 
 where goods delivered at distant place, 169, 170 
 
 ROOT OF TITLE, 
 
 condition as to, 221 
 
 conveyance on sale as a, 248 
 
 deed of appointment as a, 248 
 
 disentailing deed as a, 248 
 
 document forming, should be abstracted, 249 
 
 general devise as a, 248 
 
 inclosure award as a, 248 
 
 legal mortgage in fee as a, 248 
 
 meaning of, 247, 248 
 
 order of exchange or partition as a, 249 
 
 settlement as a, 248 
 
 specific devise as a, 248 
 
 title must be deduced to arrive at a proper, 221, 248- 
 
 underlease as a, 249 
 
 voluntary settlement as a, 248 
 
 SALE, 
 
 agency distinguished from, 7 
 
 agreement to sell, when becoming a, 120 
 
 assignment distinguished from, 7 
 
 bailment distinguished from, 4, 5 
 
 barter, distinguished from, 4 
 
 conditional on reserve price being reached, 24 
 
 consignment distinguished from, 7 
 
 contract for work and materials distinguished from, 8 
 
 contract of sale or return distinguished from, 5 
 
 contract of, agreement to sell distinguished from, 120 
 
 completion of, on sale of land, 306-331 
 
 definition of, 1, 119 
 
 effects of, 143-155, 273-305 
 
 essentials of, 1 
 
 formalities of, 120-126 
 
 formation of, 22-40, 119-142, 215-216 
 
 nature of, 1-8 
 
 option to sell distinguished from, 2 
 
 parties to, 9-21 
 
 performance of, 156-173 
 
 remedies for breach of, 198-214, 295-305 
 
 statutory requirements as to, 41-60
 
 INDEX . 453 
 
 Sale — continued. 
 
 exchange distinguished from, 4 
 gift distinguished from, 6 
 lien distinguished from, 5 
 mortgage distinguished from, 6 
 pawn or pledge distinguished from, 5 
 transfer of ownership characteristic of, 1 
 
 SALE BY AUCTION, 
 
 advertisement of, not an offer, 140 
 biddings at, 35, 140, 141, 218 
 employment of puffers at, 78, 141, 142 
 goods put up for, in lots, effect of, 141 
 retraction of bids at, 141 
 statutory provisions as to, 141, 218 
 stipulation as to retraction of bids at, 35, 36, 218 
 vendor's reservations as to reserve price, 78, 141, 218 
 right t>. bid at, 78, 141, 218 
 when complete, 141 
 
 SALE BY ORDER OF COURT. 
 
 abstract of title on, 351 
 administration action, in, 347, 349 
 approbation of judge, sale with, 349 
 auction, by, before master, 349 
 certificate of result of, 351 
 
 discharging or varying, 351 
 
 settlement of, 351 
 chambers, by auction or tender in, 349 
 Chancery Division, sale of real estate assigned to, 347 
 conditions of sale on, 351 
 
 leaving at chambers, 349, 351 
 settlement of, 351 
 conduct of sale, discretion of court as to giving, 349, 350 
 conveyancing counsel, reference to, 351 
 costs of, security for, by plaintiff in redemption action, 34S 
 debenture-holders, on application of, 347 
 defendant allowed to be purchaser, though not having leave 
 
 to bid, 350 
 equitable interests bound by order for sale, 348 
 
 mortgagee's action, in, 348 
 executor in administration action not allowed to bid, 350 
 foreclosure action, in, 348 
 
 goods, wares and merchandise, of, under Order 50, 347 
 jurisdiction of court to order, 347 
 liberty to parties to bid at, 350 
 
 order for, how obtained, 350 
 
 to whom given, 350 
 
 when necessary, 350
 
 454 INDEX. 
 
 Sale by Order of Court — continued. 
 order for, when made, 347, 348 
 
 effect of, 348 
 
 to whom given, 347, 348, 349, 350 
 particulars and conditions of sale on, 351 
 perishable property, of, 347 
 private contract, by, 349 
 proof of, 257 
 proposals, carrying in, for sale by private contract, 349 
 
 sale out of court, on, to be brought into court, 349 
 receiver not allowed to bid at, 350 
 redemption action in, 348 
 solicitor of party having conduct of, duties of, 350, 351 
 
 SALE IN LOTS, 
 
 of goods, 141 
 land, 242-243 
 leaseholds, how effected, 322 
 
 SALE OF BUSINESS, 42 
 
 SALE OF GOODS ACT, 1893. 
 application of, 119 
 capacity to buy and sell under, 120 
 contracts partly within, actions on, 57 
 
 within, 42 
 effect of section 4 of, 56-60, 122-126 
 formalities required by section 4 of, 41, 122 
 " goods within," meaning of, 42, 43 
 relation to general law, 119, 120 
 sale of emblements within, 42 
 
 growing crops within, 42 
 caving clauses in, 119 
 subject-matter of contract within, 127-130 
 
 SALE OR RETURN, 5, 145, 153 
 
 SALE IJNDER DISTRESS : See Distress. 
 
 EXECUTION : See Execution. 
 
 SALE UNDER LANDS CLAUSES ACTS, 
 assessment of compensation on, 361-363 
 by agreement, 355-357 
 compensation for injury by severance on, 362 
 
 mines and minerals on, 362-363 
 completion and conveyance on, 363-364 
 
 where owner in default, 363-364 
 compulsory, 357-361 
 consideration on, 355-356
 
 _^_ INDEX. 455 
 
 Sai.k unw:k Land Claisks Acts coutiuued. 
 
 land required for cxtraordin;ir\ [)urpuses, 356 
 
 notice to treat on, 357-.'3G() 
 
 object of Acts, 352 
 
 provisions of Acts, 352-353 
 
 restrictions on taking part of hous» or manufactory, 360, 361 
 
 specific performance on, 363 
 
 superfluous lands, sale of, 353-354 
 
 must be absolute, 354 
 restrictions upon, 354 
 when must be sold, 353, 354 
 SAMPLE, 
 
 " guarcinteed equal to," effect of sale of goods, 135 
 
 of specific goods with warranty that they are equal to, 
 
 buyer's rights on, 135 
 sale by, application of maxim caveat emptor tn, 138 
 as well as by description, effwct of, 136 
 »onditions implied on, 139, 140 
 wh»n contract of sale is contract for, 139 
 taking of, by buyer, effect of, 124 
 
 SCHOOL SITES, 
 
 copyhold, conveyance of, 320 
 
 SEARCHES, 262-266. 
 necessity for, 262 
 official, '266 
 usual, 262 
 
 SEA TRANSIT, 
 
 insurance of goods during, duty of seller as to, 169 
 
 SELSIN, 
 
 proof of, 258 
 
 SELLER, 
 
 abandonment of lien by, effect of, 125 
 
 assent to disposition by buyer, effect of, 191, 192 
 
 attornment by, effect of, 125, 128 
 
 buver's rights on breach of warranty by, 209, 210 
 
 cannot be buyer, 3 
 
 contract of sale b\ , implied undertaking on, 51 
 
 definition of, 119, 174 
 
 delivery by, how effected, 157, 158 
 
 disposition by, when in possession after sale, 153, 154 
 
 duty as to contract with carrier, 169 
 
 third partv's acknowledgment of buyer's rights, 161 
 of, on sale of goods, 138, 139, 156 
 to follow buyer's instructions as to delivery, 168 
 
 where goods deliverelf bv sea transit, 169
 
 456 INDEX. 
 
 Seller — continued. 
 
 ignorance of destination does not affect right of stoppage 
 
 in transitu of, 186 
 implied conditions on part of, as to title, 135 
 liability of, as to expenses of delivery, 162 
 
 for concealment of instrument of title, 250 
 falsification of pedigree, 250 
 for non-delivery, 2, 204 
 lien of, as affected by attornment, 125, 178 
 exercise of, 176, 177-182 
 loss of, 179, 180, 181 
 meaning of, 119, 174 
 
 memorandum of contract must describe, 48 
 notice to carrier by, of stoppage in transitu, effect of 190, 191 
 part owner may be, 120 
 reasonable opportunity to examine goods to be afforded to 
 
 buyer by, 170 
 redelivery of goods to, as revesting lien, 181 
 remedy for breach of contract, where property passed, 199, 201 
 
 where agreed bill of exchange not given, 200, 212 
 reservation of right of disposal by, effect of, 147 
 right of, as to bidding at auctions, 78, 141 
 fixing reserve price, 78, 141 
 stoppage in transitu in, 182-191 
 rights and liabilities of, on delivery of mixed goods, 163, 164 
 as to delivery by instalments, 165-168 
 of, on delivery of more or less than con- 
 tracted for, 163-165 
 may be varied by agreement, 175 
 of unpaid. 174-197 
 
 where buyer refuses to take delivery, 172, 173, 201 
 risk as to delivery of perishable goods, 130 
 sale bv, under voidable title, effect of, 152 
 transfer of bill of lading to buyer by, effect of, 125, 158. 162 
 when buyer buys on judgment of, 138 
 deemed unpaid, 174 
 loss or risk attaches to, 2, 130, 143, 148, 149, 168, 169 
 
 SEPARATE DEEDS, 
 
 when property in parts should be conveyed by, 306 
 
 SETTLED LAND ACTS : See Tenant for Life : Trustee. 
 limited owners within, who are, 333 
 " mansion house," what is, 334 
 object of legislature as to, 333 
 principle of, 333 
 settled land within, what is, 333
 
 INDEX. 457 
 
 Settled Land Acts — continued. 
 
 settlement within, definition of, 333 
 
 tenant for life, within, definition of, 333 
 SIGNATURE, 
 
 as importing agreement of party signing, 48 
 
 of agent, 56, 84, 91, 92, 93 
 party to be charged, 55-56 
 
 what, sufficient, 56 
 
 where to be placed, 56 
 
 SKILL : See Caveat emptor : Agents. 
 
 SMALL HOLDINGS, 
 
 power of local authorities to acquire lands for purposes of, 13 
 SOLICITOR, 
 
 liability of, for omission to make necessary searches, 202 
 
 payment of deposit to, 220 
 
 purchase-money to, 323, 324 
 
 presumption as to sales between client and, 20, 81, 82 
 SPECIAL DAMAGE, 
 
 seller's or buyer's right to, 198, 212. 297 
 
 SPECIAL PROPERTY, 
 
 general property distinguished from, 3 
 
 transfer of, not a sale, 3 
 SPECIFIC ARTICLE, 
 
 sale of, implied condition on, 137 
 SPECIFIC GOODS, 
 
 as distinguished from unascertained goods, 129, 141 
 
 definition of, 128 
 
 delivered on approval or sale or return, when jjassing, 145 
 
 passing of property in, when seller bound to weigh, measure 
 or test, 144 
 
 place of deliver} under contract for sale of, 158 
 
 sale of, unknown to be perished, effect of, 128 
 
 where perishing before risk passes, effect of, 129 
 
 SPECIFIC PERFORMANCE, 
 
 against trustee in bankruptcy, 286 
 
 by liquidator of company, 289 
 
 circumstances in which, decreed in absence of memorandum in 
 
 writing, 58 
 discretion of court as to, 297, 298 
 effect of bankruptcy on rights of parties to, 286-288 
 lunacy on right to, 291 
 representation in suit for, 74 
 inadequacy of consideration no defence in suit for, 80 
 infant cannot as a rule enforce, 15 
 jurisdiction of court as to, 199, 208, 209
 
 4S8 IND1£X. 
 
 Specific Performance — continued. 
 
 parties to suit for, 10, 281, 283 
 
 part performance as ground for, 58-60 
 
 right of purchaser to repudiate where, decreed, 296 
 
 vendor and purchaser summons cannot be treated as action 
 
 for, 292 
 vendor's suit for, as affecting vendor's right of rescission, 227 
 when granted, 199, 208, 209, 234, 299 
 
 when innocent misrepresentation ground for resisting, 71 
 when refused, 232, 233, 298, 300-303 
 with compensation, 233, 234, 304, 305 
 
 SQUATTER, 
 
 as affected by restrictive covenants, 330 
 
 STAKEHOLDER, 
 
 duty of, 219, 220 
 position of, 219, 220 
 
 STAMP DUTY, 
 
 circumstances affecting, must be specified in conveyance, 310 
 legal assignment subject to, 113 
 
 meaning of conveyance on sale for purpose of, 4, 327 
 payable on conveyance on sale, 326, 327 
 
 sale of goods, 4 
 rates of, 326 
 where cpnveyance to sub-purchaser, 327 
 
 title conveyed by several instruments, 327 
 
 STAMPS : See Stamp Duty. 
 
 appraisements on distress must be stamped with appropriate, 
 
 366 
 examination of title deeds as t®, 259 
 
 liability for, a question determinable on vendor and purchaser 
 summons, 294 
 
 of vendor for, on documents of title, 238. 239 
 objections to title on ground of want of, 260 
 sufficienc}' of, not affected by omission to specify the considera- 
 tion and circumstances affecting stamp duty, 310 
 
 STANDING OFFER, 
 
 meaning of, 23 
 
 STATUTE OF FRAUDS, 
 
 contracts partly within, actions on, 57 
 
 within, 41, 42 
 effect of, 56-60 
 formality required by, 41 
 sale by order of court not within, 41 
 of emblements not within, 42 
 
 growing crops, when within, 43
 
 INDKX. 450 
 
 STATUTES, 
 
 interpretation of, dealt with on vendor and purchaser 
 summons, 293 
 STATUTES OV LI.M I'lATlONS, 
 
 effect of, 11, 247, 2.'57, 264 
 
 possessory title under, 247, 257 
 STATUTORY COVENANTS, 
 
 variation of, 317 
 STIPULATION, 
 
 as to time, 133 
 
 may be a ctjndition or warranty, 70, 131 
 
 statement in contract may be mere, 73, 131 
 STOLEN GOODS 
 
 revesting of property in, 153 
 STOPPAGE in tramitu, 
 
 against whom right may be e»:ercised, 1»4, 185 
 
 delivery on ship chartered by buyer, effect of, 188, 189 
 
 duty of carrier on notice of, 190, 191 
 
 effect of, when buyer solvent, 185 
 
 where goods sent in parts by different routes, 186, 187 
 
 essential feature of, 185 
 
 exercise of right of, 174, 175, 190 
 
 where part delivery made, 189 
 
 how liable to be defeated, 191-194 
 
 lien distinguished from right of, 175, 176 
 
 loss of right of, 183 
 
 resale distinguished from right of, 176 
 
 right of, available only against goods, 183 
 
 sale not rescinded by, 194, 195 
 
 unpaid seller's right of, 174, 1S2-191 
 
 when right of, arises, 174, 182, 183 
 
 who mav exercise right of, 183, 184 
 
 " STRIKING THE BARGAIN," 
 
 insufficiencv of, as earnest or part pa>ment. l'J6 
 
 SUB-AGENT, 
 
 appointment of, when implied!} authorised, 94, 95 
 lien of, 101 
 position of, 95 
 
 "SUBJECT TO," 
 
 " approval of solicitor," " preparation and ajjproval of formal 
 contract," " approval of title," " conditions of sale," 
 " conditions of lease," " conditions on plan," " a con- 
 tract to be settled," " a proper contract," " strikes and 
 lock-outs," " valuation," effect of stipulations such as, 
 26, 27, 28, 29. 30, 32, 33, 37, 38
 
 460 INDEX. 
 
 SUB-PURCHASER, 
 
 parties to conveyance to, 308, 309 
 
 stamp duty on conveyance to, 327 
 
 when original purchaser a necessary party to conveyance to, 308 
 
 SUB-SALE OF GOODS, 
 
 effect of, by buyer, 191-194 
 
 SUCCESSION DUTY, 
 
 payment of, proof of, 258 
 
 SUMMONS : See Vendor and Purchaser Summons. 
 SUPERFLOUS LANDS : See Sales under Lands Clauses Acts. 
 
 SURRENDER, 
 
 assurance of copyholds by admittance and, 319, 320 
 copyholds, of, preparation of, 321 
 
 when unnecessary, 320 
 
 TELEGRAPH, 
 
 contracts by, 33, 34 
 
 errors in transmission by, effect of, 34 
 
 TENANCIES, 
 
 disclosure of particulars of existing, necessary, 239, 249 
 inquiries to be made as to, 257, 260, 266 
 vendor's duty as to existing, 239 
 
 TENANT FOR LIFE : See Settled Land Acts : Trustee. 
 cannot agree to sell at valuation, 334 
 conditions restricting exercise of powers of, 335 
 contract by, effect of, 334 
 conveyance by, effect of, 335, 336 
 deemed to be a trustee, when, 334 
 may bid at auction of property, 334 
 
 fix reserve price at sale by auction, 334 
 
 impose restrictions as to building or user, or mines and 
 
 minerals, 334 
 not sell mansion house, without consent of trustees or 
 
 order of court, 334 
 sell subject to stipulations as to title or evidence of title, 
 
 334 
 surface and minerals separately, 334, 335 
 powers of, 333, 334 
 sale by, 334-335 
 
 may be by auction or private treaty, 334 
 
 in one or several lots, 334 
 must be for best price, 334
 
 INDEX. 461 
 
 TENDER, 
 
 conveyance, of, purchaser's duty to make, to vendor, 306. 
 delivery of, when to be made, 162 
 
 goods, of, not in conformity with contract, effect of, 171 
 price, of, puts an end to seller's lien, 181 
 
 unpaid seller's rights where buyer does not make, 195 
 
 TERM, 
 
 purchaser's right as to, when outstanding, 237, 260, 307, 315 
 
 TESTING, 
 
 goods to ascertain price, of, 144, 145 
 
 THIRD PARTY, 
 
 agents' liability to, on contracts, 106, 107 
 
 assignment of rights and liabilities under contract to : See 
 
 Assignment. 
 authority of agent as affecting, 88, 90, 91 
 
 completion depending on, vendor's duty as to, 237, 3n7, 308 
 delivery where goods held by, 161, 162 
 duress of, when sufficient to avoid contract, 79 
 duty of, when in possession to attorn to buyer, 161 
 election of, to sue principal or agent, 104 
 fixing of price by valuation by, 52-54, 130, 131 
 goods in possession of, effect on delivery, 158, 161, 162 
 principal may follow property into hands of, where, 102, 103 
 principal's; liability to, for acts of agent, 102, 103, 106 
 protection of, on conveyance to him by vendor pending com- 
 pletion with purchaser, 282 
 refusal of acknowledgment of bu\er's title by, effect of, 161 
 sale of goods warranted free from charge in favour of, 135 
 specific performance may be refused where decree would 
 involve breach of prior contract with, 302 
 be injurious to, 301, 302, 305 
 
 TIMBER, 
 
 conditions of sale as to, 241 
 
 effect where buver of, cuts down trees and agrees to sell tops, 
 
 125 
 inclusion of, by implication, 241 
 meaning of, 241, 242 
 purchaser in possession no right to cut, pending completion, 
 
 279 
 trees blown or cut down, purchaser's equitable right to, 
 
 pending completion, 278 
 trustees with power of sale cannot sell land without, 338, 339 
 except with sanction of the court, 339
 
 462 
 
 INDEX. 
 
 TIME : See Date for Completion. 
 acceptance of goods, of, 171 
 
 compensation on compulsory purchase, when to be assessed, 
 
 361 
 compulsory powers must be exercised within, 357 
 damages, when value to be ascertained, 200-206 
 delivery of abstract, for 223, 224 
 
 goods, of, a question of construction, 156, 159, 1^0 
 
 provisions relating to, 159-161 
 requisitions and objections on title, 223, 224 
 examination of goods, for, 170, 171 
 extension of, for completion, 229, 230 
 failure of delivery of abstract within limited, effect of, 224 
 good title must be shown within, 244 
 limitations of, on mortgage, effect of, 6 
 
 sale, must be strictly observed, 6 
 memorandum of contract may be made at any, 44 
 no limit of, as to notice on assignment, 114 
 notice of sale by tenant for life, of, 335 
 
 stoppage in transitu, of, 190 
 passing of property, of, a matter of construction, 143 
 a question of intention, 143 
 rules as to ascertaining intention of 
 parties as to, 144-147 
 payment of deposit, for, 219 
 
 interest, for, 212, 230, 279, 280 
 purchase-money, for, 218, 235 
 reasonable, a question of fact, 160 
 revesting of property in stolen goods, of, 153 
 stipulations as to, when conditions, 133 
 title deduced from, under open contract, 220-222, 245-246 
 transit of goods, of, 185 
 unreasonable, a question of fact, 172 
 when mortgagees mav sell, 343 
 
 not of essence of contract, 223, 274 
 
 of essence of contract, 133, 223, 224, 22i.), 229 
 
 purchaser liable for outgoings, 236, 237, 279 
 
 may enter into possession or receipt of rents 
 and profits, 235, 274, 277-279 
 risk passes to purchaser, 275, 276 
 sale under distress, may be made, 366 
 searches should be made, 262 
 superfluous lands must be sold, 353, 354 
 trustees may sell, 337 
 unpaid seller may re-sell, 195, 196 
 TITHE 
 
 title to be shown on sale of, 220, 246
 
 INDEX . 463 
 
 TITLE : See Abstract of Titlk : Assignment : Covhnants for 
 Title : Registration of Title. 
 acceptance by purchaser, when presumed, 223, 224 
 
 of, extent to which bindinj^, 2G1, 300' 
 approval of, by purchaser's solicitor, 38 
 assignment of future goods passes only equitable, 127, 128 
 buyers right where seller has a voidable, 152 
 commencement of, condition as to, 220-222 
 completion on vendor making out his, 235 
 concealment of instrument of, penalty on, 250 
 condition covering " errors in the description" does not 
 
 extend to defects in, 234 
 conditions of sale should state what evidence of, purchaser to 
 
 be entitled to, 216 
 deed, proof of, where executed by altornev, 255 
 deed, acknowledgment of right to production and undertaking 
 for safe custody of, 238 
 costs of obtaining, when not in vendor's possession, 
 
 251-25} 
 custody of, 243 
 examination of, 259 
 production of, liability for expense, 238, 251-253 
 
 right to, 238 
 right to, 238, 243, 294 
 disclosure of tenancies affecting, necessary, 239 
 exclusion of statutory restrictions as to, 221 
 extent implied in agreement for sale of land, 50 
 " good," meaning of, 244, 304 
 
 when shown, 245 
 how shown, 246-247 
 implied undertakings as to, 51, 135 
 indemnity not compellable to be given or taken against defects 
 
 in, 234 
 inquiries as to, 260, 261 
 investigation of, 259-262 
 length of, to be shown by vendor's abstract, 245, 246 
 
 on open contract, 220, 244, 245, 247 
 "marketable," meaning of, 244 
 particulars of sale should not deal with, 216 
 proof of, 245, 246, 247, 253-259 
 
 production of evidence by vendor in, 222 
 purchaser's rights under oi)en contract as to, 220, 245 
 
 when vendor has no, 228, 233, 244, 295 
 questions as to, determinable on vendor and purchaser 
 
 summons, 293, 294 
 repudiation by purchaser for defect in, 244, 296, 304 
 requisitions as to, 223-225, 226, 259-261, 306
 
 464 INDEX. 
 
 Title — continued. 
 
 restrictions as to investigation of, 221, 222 
 root of : See Root of Title. 
 stipulations as to, effect of, 221, 222, 245 
 transfer of, 149-155 
 
 under Factors Act, 103, 104 
 under Statute of Limitations, 247 
 vendor may stipulate acceptance of, 222, 245 
 must show a good marketable, 244 
 vendor's duty to disclose defects in, 77, 222 
 
 obligation as to, 222, 244-247 
 waiver of objections to, 261, 262 
 when more than 40 years, may be required, 220, 245 
 when made, 244 
 
 shown, 244 
 where sale in market overt, 151 
 
 TRANSFER : See Assignment : Conveyance : Registration of 
 Title. 
 documents of title, of : See Documents of Title. 
 ownership, of, 1-3, 273 
 property by agents, of, 102, 103 
 
 in goods, of, 143-148 
 title in goods, of, 149-155 
 
 TRANSIT, 
 
 anticipation of end of, by buyer, 187, 189 
 course of, how fixed, 186 
 duration of, 185 
 end of, 187-189 
 
 TRANSMISSION, 
 
 delay and loss in, by post and telegraph, effect of, 34 
 errors in, effect of, 34 
 
 TREASON, 
 
 convection for, as affecting contracts, 11 
 
 TRESPASS : See Action. 
 
 TROVER : See Action. 
 
 TRUSTEE : See Settled Land Acts : Tenant for Life. 
 appointment of solicitor by, to receive payment, 324 
 breach of trust by, 337 
 cannot agree to grant option to purchase, 341 
 
 sell at price to be fixed by valuation, 341 
 capacity of, to sell, 20, 21, 80, 81, 82, 336 
 conveyance of copyhold by, 320 
 
 to, where more than one, as joint tenants, 309 
 covenants entered into by, on sale, 238, 242, 316, 317, 322, 341 
 depreciatory conditions on sale by, 340
 
 INDEX. 465 
 
 Trustee — con tinii ed . 
 
 duralion of power of s.ilc of, 'M7 
 
 duties of, 20, 81, 33G, 337 
 
 emi)luyinent of valuer by, 337 
 
 enforieiiient of contr.itl aj^ainst, by bi'iielii iary, 21)9 
 
 for sale, purrhase of trust properlv Ijy, 21, 80-82 
 
 in bankruptcy, conveyance of copyholds by, 320 
 
 deemed to have ado|)tcd contract, when, 28S 
 disclaimer of contract by, IIG, 2SG 
 
 pro[x;rty by, 28G 
 enforcement of contract by, 10, IIG, 28G 
 power of election of, 286,287 
 power of sale in, 3 
 
 property of bankrupt vests in, 28G, 287 
 knowledjfc of trust property must be applied for beneficiary's 
 
 benefit by, 81 
 liability of, on sales, 336', 341 
 
 may adopt provisions of Sect. 18 of C^)nv. Act, 1881, 338 
 may not purchase his own land for the trust, 21 
 mode of sale by, 340 
 
 mortgagees, duty of purchaser on sale by, 325 
 must ascertain value of estate to be sold, 341 
 
 sell for gross sum of money as a rule, 340 
 shew good title, 341 
 of settlement, may exercise powers of infant tenant for life, 
 
 17, 339, 340 
 power of sale of, docs not prima facie include power 
 to lease, 337 
 
 mortgage, 337, 338 
 partition, 338 
 
 exercise of, purchaser cannot question discre- 
 tion, 33S 
 for purpose of raising a charge, may imply 
 power to mortgage, 338 
 with discretion as to postponement of sale 
 and maintenance of proj^erty, implies 
 power to mortgage, 338 
 to sell or exchange of, authorises a partition, 338 
 purchasing from beneficiary, sale voidable, when, 20, 81 
 sale of leaseholds by, 322, 337 
 sales by, general powers on, 33G, 337, 340, 341 
 
 implied powers on, 337, 338 
 sanction of, to conditional contract entered into by benefi- 
 ciaries, 33G, 337 
 selling under a trust for sale, description as, sufficient for 
 purposes of memorandum, 49 
 
 30
 
 466 INDEX. 
 
 TkustkI') — coniiniicd. 
 
 should not let purchaser into possession until purchase-money 
 
 paid, 341 
 
 specific performance of contract by, where refused, 3U2 
 
 surviving, may generally exercise powers of trustees, 325 
 
 purchaser should not pay purchase-money to, when, 
 
 326 
 time for sale by, 337 
 
 title to be shown by, on sale, 341 
 
 vendor is, for purchaser, 273, 274 
 
 who has not disclaimed or retired from trust must join in 
 
 giving discharge for purchase-money, 325 
 
 with power of sale onlv, may not exclude standing timber or 
 
 minerals, 338, 339 
 
 except with sanction of Court, 339 
 
 to raise money by mortgage, may not sell, 338 
 
 sale or mortgage, may execute 
 
 mortgage with power of 
 
 , rr . r nrv^ SalC, 338 
 
 written receipt by, eilect ot, 325 
 
 ULTRA VIRES. 
 
 contracts, of companies, effect of, 9, 13 
 
 UNASCERTAINED GOODS, 
 
 contract of sale of, effect of, 143 
 implied condition on sale of, 136 
 risk in respect of, to whom attaching, 139 
 when property in passes, 143, 146 
 
 UNDERLEASE, 
 
 evidence of title on sale of property held by, purchaser's rights 
 
 as to, 245 
 root of title should not be, 249 
 
 UNDERTAKING : See Title. 
 
 UNDUE INFLUENCE, 
 
 agreements induced by, rule as to, 79 
 
 as affecting consent, 79-82 
 
 presumption as to, in transactions between 
 
 executor and legatee, 81 
 guardian and ward, 82 
 parent and child, 82 
 solicitor and client, 81, 82 
 trustee and beneficiary, 80, 81 
 where no independent advice, 82 
 
 one party under great pecuniary 
 
 necessity, 82 
 on sale of reversion, 80 
 with illiterate or ignorant person, 82
 
 INDKX. 407 
 
 UNPAID SELLKR OF GOODS, 
 definitii)n of, 171 
 
 distini't'u)!! bctut'i-n ri-^lils of, l";"), 170 
 cxeiTisc of rii^lUs of, 17 J, 17."), liM, ID.", 
 lien (.f, 177-L^2 
 
 |HMSons williin mraniii^ nf, 174 
 a-mi'dii's of, 1!»!), 20 J 
 re-sale by, l!)o-l')7 
 rij^ht of stoppaj^e in Iraiisitii of, lS2-li)l 
 
 to withhoUl ilcliverv, ]lt7 
 rights of, 174-1<)7 
 
 UNPAID VENDOR OF LAND, 
 
 lien of, 280 
 
 remedies of, 2!)."i, 2!)7-;iO.") 
 
 rights and ol)lii;ations of, 27;i-2S0 
 
 UNSTAMPED DOCUMENTS, 
 liability in respect of, 238, 239 
 
 URBAN AUTHORITIES, 
 contracts of, 12 
 
 USAGE OF TRADE, 
 
 admissibility of evidence as to, to explain or varv wrillcn 
 
 contract, 40, 164 
 aj^ent must contract in accordance witli, iJ7 
 authority to dclej*ate a^^ency mav be implied bv, i)4 
 broker may be personally liable to his principal bv, !)2 
 contract by broker's notes by, effect of, 92, 107 
 discount ujjon fixed price may be allowed by, 200 
 effect of particular, 105-106, 180 
 implied condition as to qualilv or fitness for a |)articular 
 
 l)ur|)ose may be annexed l)\', 137 
 [)rin(i|)al bound b\-, on acts of his agent, when, 89, 106 
 remuneration of agent may be governed bv, 100 
 rights, duties, or liabilities under contract mav be negatived 
 
 or varied by, when, 122, 138, 148 
 
 VALUATION, 
 
 agreement for price to be fixed ]>\\ may aniounl to submission 
 
 to arbitration, 53 
 arbitration distinguished from, 53, 54 
 Court mav direct mode of, when, 38, 52, 241 
 
 enforce agreement and ascertain price, when, 53 
 fixtures sold by, conditions as to, 241 
 object of, 53 
 price determined by, 52, 53, 130-131
 
 4GS INDEX. 
 
 \'.\LUATiON — continued. 
 
 right to action for damages where either party prevents a, 
 
 54, 131 
 sale at, effect where valuer cannot or will not make valuation, 
 
 54, 130 
 si^ecilicd mode of, must be strictly followed, 52 
 when condition precedent to contract, 38 
 
 VARIATION, 
 
 acceptance proposing, effect of, 30 
 
 ^■E^'DOR, 
 
 account of rents and profits received by, 277-279 
 acknowledgment of right of purchaser to production of deeds 
 
 by, 238 
 and purchaser summons, application for, 291 
 
 consequential relief obtained by, 294 
 hearing of, 291, 292 
 jurisdiction of the Court as to, 292 
 order for return of deposit may be 
 made by, 294 
 on, powers, 292 
 procedure on issue of, 292 
 questions determinable on, 293, 294 
 when procedure by, must be adopted, 
 
 292 
 bankruptcy of, vesting of legal estate on, 286-287 
 commission of act of bankruptcy by, effect of, 287 
 concealment of defects by, 67, 77 
 covenants for title by, 238, 242, 315-319, 321, 322 
 delay in completion by, 229, 230, 231 
 description as, in memorandum, effect of, 48 
 disclosure by, duty as to, 68, 231-233, 239-240 
 
 of onerous or unusual covenants by, 233, 239 
 duty as to conditions of sale, 217 
 
 covenants for title when a trustee or mortgagee, 
 
 238, 242 
 preservation and repair, 274, 275 
 of stakeholder on breach of contract by, 220 
 to disclose defects in title, 68 
 
 enforce rights pending completion, 273 
 enforcement of contract against representatives of, 283-284 
 execution of assurance by, 306, 322, 323 
 
 extent of interest implied by, under agreement to sell, 50, 216 
 general assertions by, effect of, 73 
 insurance by, purchaser's rights in respect of, 277, 278 
 interest of, after agreement for sale, 273
 
 INDEX. Kif) 
 
 Vkndok — conlinKCil. 
 
 liabilily for, txpcnso of ;ibstr;ut of litlf, 2.")<t 
 
 iion-tlisclosiirc of instrument of til If, 'JoU 
 in respect of ])urchasecl propertv, ITI, '27') 
 misrepresentations by, tlTect of, 73 
 
 money spent ix^ndinj^ roinplction l)y, wiu-n n<it ntovcrablc, 
 
 iJ7;j, 27(j 
 nature of covenants by, 3lo, IJlG , 
 
 daniaj^es in action by, 297 
 obligation as to title, 2, 21o, 221-222, 244-247 
 position of alienee of, as aj^ainsl a purthaser, 2^1-2S2 
 profits not taken pending completion bv, 235, 278 
 representations of intentit)n by, effect of, 74 
 reservations at sales by auction bv, 78, 21S 
 retention of common title deeds bv, 243 
 right to interest, when accruing, 230, 231, 27!), 2M) 
 receive purchase-money, how secured, 2S0 
 retain deposit on repudiation by purchaser, 240 
 rights and liabilities pending completion, 23.J-237, 273-2Sf) 
 as to rescission and resale, 78, 22.J-22S, 240, 211, 2*Jo 
 of purchaser when interests different from those sold are 
 
 offered by, 222, 223, 233, 234, 240, 205, 20G 
 on misrepresentation by purchaser, 77 
 title deeds to be handed over by, 238, 252 
 of, right to stipulate acceptance of, 222 
 unpaid, position of, 280 
 
 when concurrence of neccssarv [)arties must be obtained bv, 
 
 237. i307 
 recitals max be omitted as to estate of, ;{1() 
 specific performance nut granted against, 210, 2'.tS-;j()5 
 
 to, 230, 208-305 
 
 VESSEL, 
 
 declaration by seller of name of, duty as to, 150 
 delivery of goods in chartered, as affecting stujipagc in trunsilti. 
 
 18U 
 VESTING ORDER 
 
 where vendor becomes a lunatic, 201 
 
 " VOID," 
 
 meaning of, 10 
 
 " VOIDABLE," 
 
 meaning of, 10 
 
 VOIDABLE TITLE, 
 
 bu\er's right where seller has a, 152 
 nature of a, 152 
 pledgor, of, effect of, 152
 
 470 INDEX. 
 
 WAIVER, 
 
 condition as to time, of, 225, 229 
 lieri of unpaid seller, 180, 181-182 
 
 by part delivery, 179 
 by sale on credit, 178 
 notice of acceptance, of, 24 
 
 objections to title, acts amounting and nijt amounting to, 
 
 223, 224, 261, 262, 306 
 performance of condition, of, 132, 134, 135 
 provisional acceptance and actual receipt of goods operates as, 
 
 of written evidence of contract, 123 
 right of inspection of goods, of, 170 
 
 rescission, 229 
 want of mutuality, of, 299 
 
 WARD : See Guardian. 
 
 WAREHOUSEMAN'S CERTIFICATE : See DocuMiiNT of Title 
 effect of, 193 
 
 WARRANT : See Document of Title. 
 
 WARRANTY, 
 
 breacii of, 70, 131, 209-211 
 
 buyer's liability as to patent defects in goods subject to, 138- 
 
 139 
 remedy for breach of, 70, 131, 134, 135, 209-211 
 definition of, 70, 131 
 imi)lied on part of seller, 67, 128, 135 
 on what founded, 132 
 as to quality or fitness for a particular purpose may be 
 annexed by usage of trade, 137 
 quality, as to, damages for breach of, 70, 209-211 
 
 of, not an essential element of sale, 67 
 vendor's duty to correct purchaser's mistake as to, G7 
 when condition becomes a, 70, 131, 134-135 
 
 WEIGHING, 
 
 necessity and effect of, 144 
 payment of jjrice dependent on, 145 
 
 WHARFINGER'S CERTIFICATE : See Documknt of 'I'itle. 
 Warfhouskman 's Certificate. 
 
 " WILFUL," 
 
 meaning of, 231 
 
 WILFUL DEFAULT, 230, 231 
 
 WILL, 
 
 verification of, 2-58, 259
 
 INDEX, 471 
 
 WINDING-UP PETITION, 
 
 t'Cfrci (111 company's contract, 288-290 
 
 " WITH ALL FAULTS," 
 
 contract for sale of proiKMty, effect of, MOM 
 
 WrnillOLDINCr DKLIVERY : See Uni-aid Ski.ikk. 
 
 " WITHOUT PREJUDICE," 
 
 notice to rescind so signed, effect of, 227 
 
 WORK AND LABOUR, 
 
 contract for, sale distinguished from, 8 
 
 WORK AND M A'I'ERIALS, 
 
 contract for, sale distinguislicd from, 8 
 
 WRITING : See Contract. 
 
 WRIT OF EXECUTION, 
 
 effect of, 155, 290 
 
 WRITS AND ORDERS, 
 searches for, 262, 263 
 
 WRITTEN CONTRACT : See Contract. 
 
 YORKSHIRE, 
 
 registration of title in, necessity for, 327 
 proof of, 258 
 searches for, 262, 265
 
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