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. 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. But see Lloyd v. Collett, in Court of Ves. jun. 689. Cited also by Graham, Baron, in Omerod v. Hardman, 5 Ves. jun. 737. See also Wynn v. Morgan, 7 Vesey, 202. c Cornish v. Rowley, B. R. Middlesex 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 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 sale f, 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 in d Harrington v. Hoggart, 1 B. & Ad. f Curling v. Shuttleworth, 6 Bingh. 577. and ante, p. 177. e Maberley v. Robins, 5 Taunt. 625. 121. 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 h; 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. 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 stamped1. 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 holdenm, 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. i Coverley v. Burrell, 5 B. and A. 257. S. 434. Ingram v. Lea, 2 Campb. 521. Adams v. Fairbain, 2 Stark. N. P. C. 277. 1 Ramsbottom v. Mortley, 2 M. and S. 445. m Waring v. Hoggart, 1 R. and M. 39. n Bradshaw v. Bennett, 2 M. & Malk. 143. CHAP. VII. BANKRUPT. I. Of the Alterations made in the Bankrupt Laws by Stat. 6 Geo. 4. c. 16.; 1 & 2 W. 4. c. 56. establishing a Court of Bankruptcy, and other Statutes. II. Of Persons liable to be Bankrupts. III. Of Persons not liable to be Bankrupts. IV. Of the several Acts of Bankruptcy. V. Of Property in Possession of the Bankrupt as reputed Owner. VI. Of Warrants of Attorney, Conveyances, and Payments made by and to Bankrupts. VII. Of Actions which may be brought by the Assignees of a Bankrupt, and in what manner they ought to sue. VIII. Of Actions by the Bankrupt. IX. Of the Pleadings. X. Of the Evidence and Witnesses. I. Of the Alterations made in the Bankrupt Laws by Stat. 6 Geo. 4. c. 16.; 1 & 2 W. 4. c. 56. establishing a Court of Bankruptcy, and other Statutes. THE legislature having deemed it expedient to amend the laws relating to bankrupts, and to simplify the language thereof, and to consolidate the same in one act, and to make other provisions respecting bankrupts, by a statute, (which passed on the 2nd of May, 1825, to take effect on the 1st of September in that year,) (1) repealed the following sta tutes: (1) A commission sued out on Sept. 8th, 1825, upon an act of bankruptcy committed in the July preceding, not supported. Maggs The statute of 6 Geo. 4. in many of its provisions corresponds with the enactments of former statutes, and therefore, in the following pages, such of the decisions as have been made on the construction of those statutes, and are likely to occur again, will be re-inserted. In January, 1832, a Court of Bankruptcy was established, consisting now of three judges, and six commissioners. It is a court of law and equity, and has all the powers and privileges incident to a court of record. The three judges form a court of review, and have superintendance and control in a Stat. 1 & 2 W. 4. c. 56. b S. 1. and declaratory enactment in 5 & 6 W. 4. c. 29. s. 25. v. Hunt, 4 Bing. 212; Hewson v. Heard, 9 B. & C. 754. S. P. Palmer v. Moore, 9 B. & C. 754. S. P. So where the trading had ceased before the 1st of September, 1825. Surtees v. Ellison, 9 B. & C. 750. See also exp. Chambers, 2 Mont. & Ayr. 440. But where the act of bankruptcy was committed in March, 1825, and the commission issued in July following, the Court held that the commission might be supported; for there were certain statutes in force, in March, 1825, when the act of bankruptcy was committed, and the same statutes were in force in July when the commission issued. Philips v. Hopwood, 10 B. & C. 39. Acts of trading before the stat. 6 Geo. 4, came into operation have been holden to be admissible in evidence, to shew quo animo acts of trading after the statute were done. Worth v. Budd, 2 B. & Ad. 172. Plaintiff having proved under a commission of bankrupt in 1816, was holden to be estopped from suing for the same debt, after the passing of the 6th Geo. 4. c. 16. although that statute had repealed the 49 Geo. 3. c. 121. which makes proof of a debt an election not to sue. Adames v. Bridger, 8 Bingh. 314. A commission may be supported on a debt accruing before the bankrupt became a trader and an act of bankruptcy committed after he has ceased to be a trader. Bailie v. Grant, D. P. 9 Bingh. 121. |