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authority from the defendant. If he had done so, he would not be entitled to call upon his principal to pay the costs, and in that case they would have been incurred without his consent. If the plaintiff had declared specially, the defendant would then have had notice of these points, the plaintiff's claim would have been on the record, and the defendant might have been prepared to contest it, which, under the present declaration, he cannot; the plaintiff may recover for the money actually paid on the other accounts.” Spurrier v. Elderton, 5 Esp. N. P. C. 1::

Where an estate is sold by auction, if a good title is not made out accordimg to the conditions of sale, and an action is brought against the auctioneer, for the recovery of the deposit, who pays money into court, such action may be maintained, the deposit not appearing to have been paid over to the principal. An auctioneer is personally liable where he does not name his principal. Per Kenyon, C. J. Hanson v. Roberdeau, Peake's N. P. C. 120. So where the defendant was both auctioneer and attorney for the sellers, although he had paid over the deposit to the sellers before demand, yet he was holden" liable, on the ground that he was not authorized to part with the deposit, when he must, from his employment as attorney for the sellers, have known long before he paid it over, that the title was disputable, and consequently that he had paid the money over in his own wrong. Heath, J. added, that it was admitted that if express notice had been given to defendant not to pay over the money, the action would lie, and he considered the defendant's knowledge, as seller's attorney, of doubts as to the title, as equivalent to express notice.

Where the vendor was the owner of the estate, and an objection having been made to the title, he offered to convey the estate with such title as he had, or to return the purchase

money with interest; it was holden”, that further damages for the supposed goodness of the bargain could not be recovered. But where a person who had contracted for the purchase of an estate, but had not obtained a conveyance, put up the estate for sale in lots by auction, and engaged to make a good title by a certain day, which he was unable to do, as his vendor never made a conveyance to him; it was holdent, that a purchaser of certain lots might, in an action for not making a good title, recover not only the expenses which he had incurred, but also damages for the loss which he sustained by not having the contract carried into effect. In the

9 Borough v. Skinner, 5 Burr. 2639.
r Edwards v. Hodding, 5 Taunt. 815.
$ Flureau v.Thornhill, 2 Bl. Rep. 1078.

t Hopkins v. Grazebrook, 6 B. and C.


foregoing case the defendant had sold property as his own, which was not so, and the court was of opinion, that the defendant being in fault by representing himself as the owner of the property, the plaintiff's right was not restrained to”nominal damages. But where premises for which a party had contracted were by him offered for resale before he had examined the abstract with the original deeds, although the title proved afterwards defective, it was holden 4, that the damage, if any, resulting from such offer, arose from his own premature act, and not from any fault from the vendor, and consequently that the vendor was only liable for the expenses incurred in the investigation of the title and nominal damages for the breach of the contract.

It may be proper to add to the declaration a specific count for the interest, for interest cannot be recovered on a count for money had and received". If it is not proved that a demand has been made on the auctioneer for the deposit, interest cannot be recovered. To make auctioneer liable for interest, it must appear, Ist, that the contract on failure of condition has been rescinded; 2ndly, that a demand of deposit has been made, and refusal to return itt, and, according to Burrough, J. in Curling v. Shuttleworth, 6 Bingh. 134, it must be proved, that auctioneer has made interest of the money. Auctioneerų, pending the time which elapses between the payment of deposit and completion of title, is a mere stakeholder, and not liable for interest to the vendor, although the vendor (without the concurrence of vendee) gave the auctioneer notice to invest the money in government securities, and although interest may have been made. The expenses incurred in investigating the title may be recovered, if laid in the declaration as special damage, but not on the count for money paid y. In Gosbell v. Archer, 4 Nev. and Mann. 485. it was holden that upon an abandonment of an unwritten contract for the sale of land on defect of title, the expenses of investigating the title cannot be recovered, nor interest upon deposit. See 3 & 4 W. 4. c. 42. s. 28. as to interest.

9 Walker v. Moore, 10 B. & C. 416.
I Walker v.Constable, 1 Bos. and Pul.

307, Tappenden v. Randall, 2 Bos.
and Pul. 472. Farquhar v. Farley,
1 Moore, 322. Sed quære. And see

Maberley v. Robins, 5 Taunt. 625. s Lee v. Munn, 1 Moore, (C. P.) 481.

1 Holt. 569. 8 Taunt. 45, S. C. t Per Burrough, J. Lee v. Munn, 8

Taunt. 55.

u Harrington v. Hoggart, 1 B. & Ad.

577. x Bratt v. Ellis, Sugden's Law of v.

and P. p. 238. ed. Yth. Jones v. Dyke, ib. 238. Turner v. Beaurain, ib. 239. Richards v. Barton, 1 Esp.

N. P. C. 268. y Camfield v. Gilbert, 4 Esp. N. P. C.


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Where leasehold premises are sold by auction, and the lease containing the usual covenant to repair is produced and read to the bidders, if a part of the buildings, e. g. a summerhouse, demised and described in the lease, has been pulled down before the sale, the purchaser is not bound to complete the purchase, and may recover his deposit. N. The summer-house was not described in the particulars of sale 2.

Assumpsit for money had and received a. Plea, N. A. This action was brought to recover the deposit money paid by plaintiff, who was the purchaser of an annuity sold by defendant (an auctioneer) at a public auction. One of the conditions of sale was, that a good title should be made out by the 10th of July. In the beginning of July the plaintiff called on the seller of the annuity to shew him the title deeds, but he not having them in possession, gave him an abstract of the title which did not mention any of the deeds. Bearcroft suggested that application ought to have been made to the vendor at an earlier period, in order to enable him to procure the title deeds by the 10th of July. Kenyon, C. J. “A seller of an estate ought to be prepared to produce his titledeeds at the particular day. A court of equity will, under particular circumstances, enlarge the time b; but then the circumstances entitling him to such indulgence must clearly appear, which is not the case in this instance. It is objected, that the plaintiff had no right to the possession of the deeds: but though he had no right to keep them, he had a right to inspect. A court of equity would have obliged the vendor to give attested copies of the deeds at his own expense, with an undertaking to produce them thereafter at the vendee's expense for the support of his title. As the seller has here failed in completing his engagement, plaintiff is entitled to a return of the deposit. Verdict for plaintiff 280l. amount of deposit.

An action for money had and received was brought to recover the amount of a deposit paid by the plaintiff to the defendant, on an agreement for the purchase of an estate, the defendant having failed to make out a good title on the day when the purchase was to be completed. The abstract of the title delivered to the plaintiff began in the year 1793, and after reciting that the deeds relating to the estate had been lost, stated a fine and non-claim. Upon inquiry it was found z Granger v. Worms, 4 Campb. 83. Ves. jun. 689. Cited also by Graham, a Berry v. Young, 2 Esp. N. P. C. 640. Baron, in Omerod v. Hardman, 5 Ves. b Langford v. Pitt, 2 P. Williams, 630. jun. 737. See also Wynn v. Morgan,

But see Lloyd v. Collett, in Court of 7 Vesey, 202. Chancery, 28th Nov. 1793, on motion c Cornish v. Rowley, B. R. Middlesex for injunction. 4 Bro. C. C. 469. 4 Sittings after M. T. 40 G. 3. MSS.

that the fact of the deeds having been lost was not true. The counsel for the defendant said, they were ready to make out a good title. Kenyon, C. J. “As to the sentiments which I have long entertained relative to the purchase of real estates, I find no reason for receding from them. They have been confirmed by conversing with those whose authority is much greater than mine. The vendor must be prepared to make out a good title on the day when a purchase is to be completed. Indulgence, I am aware, is often given for the purpose of procuring probates of wills, letters of administration, and acts of parliament. But this indulgence is voluntary on the part of the intended purchaser; it is the duty of the seller to be ready to verify his abstract at the day on which it was agreed that the purchase should be completed. If the seller deliver an abstract, setting forth a defective title, the plaintiff may object to it. No man was ever induced to take a title like the present. A fine and non-claim are good splices to another title, but they will not do alone. There are many exceptions in the statute in favour of infants, femes covert, &c. Erskine for the defendant: “Do I understand your Lordship to say, that though the defendant can now make out a good title, yet as that title did not form a part of the abstract, the plaintiff may avail himself of that circumstance?” Kenyon, C. J.“ He certainly may, and avoid the contract. When the abstract is delivered by the seller, he must be able to verify it by the title deeds in his possession. As a good title was not made out at the day fixed, I shall direct the jury to find a verdict for the deposit, with interest up to that day." The jury found a verdict for the plaintiff accordingly. In the foregoing case the deposit was paid to one of the parties; but where the deposit is directed to be paid to the auctioneer, he is entitled to retain it until the contract is completed, without paying interest for it, because he is considered as a stakeholder d or depositary. To obviate this, where the amount of the deposit is large, it should be stipulated, that pending the investigation of the title, the deposit should be invested in exchequer bills.

A contract to make a good title means a title good both at law and in equity. Therefore, in an action e to recover back the deposit on a purchase, upon the vendor's failure to make a good title, a court of law will collaterally inquire whether the title be good in equity. And where upon a sales, there is such a doubt upon the vendor's title as to render it probable, that the purchaser's right may become a matter of ind Harrington v. Hoggart, 1 B. & Ad. f Curling v. Shuttleworth, 6 Bingn. vestigation, the court will not compel the purchaser to complete the purchase. But in assumpsite to recover a deposit upon a purchase, upon an allegation that the defendant has failed to make proper title, the Court of C. B. will not consider, whether the title is of a doubtful description, such as a court of equity would not compel an unwilling purchaser to take, but simply whether the defendant has or has not a legal title to convey. In every contract for the sale of an existing lease, there is an implied undertaking by a vendor (if the contrary be not stipulated in express terms) to make out the lessor's title to demise b; and from the short residue of the term, the small value of the property, and the absence of any premium for the lease, it cannot be inferred, that the vendee intended to waive his right to call for the production of the lessor's title.

577. and ante, p. 177. e baberley v. Robins, 5 Taunt. 625.


Auctioneers who take upon themselves to describe in their particulars the property to be sold, should truly describe iti; for the buyers act on the faith of those descriptions. A written

paper, delivered by an auctioneer to a bidder to whom lands were let by auction, containing the description of the lands, the term for which they were let to the bidder, and the rent payable, is not such a memento of an agreement as requires a stamp, unless it be signed by some of the parties or by the auctioneer: nor is it such a writing as will exclude parol evidencek; but if signed by the auctioneer, and delivered to the bidder, it ought to be stamped'.

A lessee of lands subject to a covenant against certain obnoxious trades, with a proviso for re-entry, granted underleases of houses erected on the land, not containing a similar covenant and proviso: it was holden m, that a purchaser by auction of houses on the same land, and of the improved ground-rents of the houses so underlet, might recover his deposit, this omission in the under-leases not having been mentioned in the conditions of sale. In an action against the vendor of an estate to recover the deposit on a contract for the purchase, if the defendant, on notice, produce the contract, the plaintiff need not prove its execution, or by the subscribing witness"; for an instrument produced on notice by a party claiming an interest under it, does not require to be so proved.

g Boyman v. Gutch, 7 Bingh. 379. S. 434. Ingram v. Lea, 2 Campb. h Souter v. Drake, 5 B. & Ad. 992. 521. Adams v. Fairbain, 2 Stark.

3 Nev. & Man. 40. overruling Ab- N. P. C. 277. bott, C. J. in George v. Pritchard, i kamsbottom v. Mortley, 2 M. and S. Ryan & Moody, 417.

445. i Coverley v. Burrell, 5 B. and A. 257. m Waring v. Hoggart, 1 R. and M. 39. k Phillips on Evid. 530. 5th ed. cites n Bradshaw v. Bennett, 2 M. & Malk.

Ramsbottom v. Tunbridge, 2 M. and 143.

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