And same, or from the date of the last acknowledgment by payment or in signed writing (d). The time when the purchase money accrues due for the purposes of this enactment is the date of actual completion, if a conveyance to the purchaser has been executed; but if the purchaser has been let into possession without conveyance, then the time when completion ought to have taken place; that is, when the vendor showed such a title as the purchaser was bound to accept (e). interest on the purchase money does not become due and payable until the principal has become payable; though it may have to be computed from the day fixed. for completion (f). It appears that, where the contract of sale was made by deed, the right to sue the purchaser personally for the amount due on the vendor's lien is barred within the same time as the lien itself (g): though, if the vendor had waived his lien, it appears that the time of limitation would be twenty years (h). Where the agreement for sale was a simple contract, the right to sue the purchaser personally for the price is barred at the end of six years (i), though the vendor's lien would not be barred until twelve years had elapsed. It appears that a vendor suing to enforce his lien can only so recover six years' arrears of interest due thereon (k); but that, where the payment of the interest is secured by bond or other specialty, he can recover twelve years' arrears by suing the purchaser personally (1). (d) Stat. 37 & 38 Vict. c. 57, s. 8, replacing 3 & 4 Will. IV. c. 27, s. 40. (e) Toft v. Stephenson, 7 Hare, 1, 1 De G. M. & G. 28, 5 ib. 735; above, pp. 506, 509, 510. (f) S. C., 5 De G. M. & G. 735; above, pp. 49, 419, 626, 630. (g) Consider Sutton v. Sutton, 22 Ch. D. 511; Fearnside v. Flint, ib. 579; Re Frisby, 43 Ch. D. 106; Re England, 1895, 2 (h) Above, pp. 925 sq., 944. (k) Stat. 3 & 4 Will. IV. c. 27, 8. 42; Hunter v. Nockolds, 1 Mac. & G. 640; Dingle v. Coppen, 1899, 1 Ch. 726, 729, 746; Re Lloyd, 1903, 1 Ch. 385, 398-401. (7) Stat. 3 & 4 Will. IV. c. 42, s. 3, as modified by 37 & 38 Vict. c. 57, the contract. The equitable It has been mentioned that, as a rule, either party to right to a contract to sell land is entitled to sue in equity for specific performance of specific performance of the agreement (m). This right is, in general, founded on a breach of the contract, but not in the same manner as the right to sue at law. The Court has no jurisdiction to award damages at law except in case of a breach of the contract (n); while the equitable jurisdiction to order an agreement to be specifically performed is not limited to the cases in which at law damages would be recoverable (o). At the same time the Court, in exercising its discretion (p) to grant this equitable relief, will hardly interfere to coerce a party who is of his own accord duly carrying out the contract (g); so that the right to pursue this remedy must in general depend on the defendant's failure or refusal to perform the agreement (r). This right is, however, entirely distinct from the right of action arising on breach of the contract at law (s). Thus, the equitable right to enforce the contract specifically may be barred by the laches of the person entitled (t), while his right to sue for damages is unimpaired (u). And we have seen that the vendor's liability to be sued for specific performance of the agreement is not destroyed by the vendor's bankruptcy, or any proceedings therein (). s. 8; Sims v. Thomas, 12 A. & E. (m) Above, p. 31. (n) See above, p. 933, n. (c). (p) Above, p. 31. (q) Whitmelv. Farrel, 1 Ves.sen. 256, 258; Milnes v. Gery, 14 Ves. 400, 409; Price v. Penzance Corp., 4 Hare, 506. (r) See Van Heythuysen's Equity Draftsman, i. 9 sq., 2nd ed.; Fry, Sp. Perf. §§ 3, 4, 47, Pp. 3, 20, 3rd ed. (s) Above, p. 935. (t) Eads v. Williams, 4 De G. M. & G. 674, 691; Levy v. Stogdon, 1898, 1 Ch. 478, 484, affirmed, 1899, 1 Ch. 5. (u) Cornwall v. Henson, 1900, 2 Ch. 298. (x) Above, pp. 478, 479, 483, 922. CHAPTER XIX. OF THE REMEDIES FOR BREACH OF THE CONTRACT. § 1. Of Rescission and Resale. § 2. Of claiming Damages under the Contract. § 3. Of Specific Performance. § 4. Of a Vendor and Purchaser Summons. § 5. Of the Purchaser's Remedies for Disturbance after Completion. We will now consider the remedies for breach of a Remedies for contract to sell land. contract to sell land. Where the stipulation broken breach of a goes to the whole root of the consideration (a)—as on breach of one of the main duties of the contract (b)the injured party's remedies are either to rescind the contract and sue for restitution to his former position, or to affirm the contract and sue either for damages for the breach or for the specific performance of the agreement. Besides these remedies by action, it is open to him to adopt the special mode of procedure by vendor and purchaser summons (c). Where a breach has been committed of a stipulation which is not essential, the appropriate remedy is usually an action for damages for the particular breach, but that will not preclude any further proceedings which may be necessary to enforce the main duty of the contract either at law or in equity (d). In connection with the remedies for breach of the contract, it will be convenient also to consider the purchaser's remedies in case of his ejectment or dis (a) Above, p. 726. (6) Above, p. 937. (c) Above, pp. 30-32. Rights of a turbance after completion. Apart from fraud and common mistake (f), and except where the contract contained an express agreement for compensation so worded as to be applicable to the case (g), or where the vendor gave an express warranty of his ownership or right to sell the land (h), these are to sue upon the vendor's covenants for title, if any (i), or to sue upon any other covenants for title of which the benefit runs with the land sold (k). § 1.-Of Rescission and Resale. It has been pointed out (7) that, where either party to the contract commits such a breach of it as discharges the other from his obligation under the agreement, the other is entitled, at his election, either to rescind the contract or to affirm it and sue upon it for damages for the breach. If he elect to rescind, he is entitled to take active proceedings in equity to assert his right and to secure entire restitution (m); and he is (f) Above, pp. 540, 577, 578, 695, 722 sq. (g) Above, pp. 55, 540, 642644. (h) Above, pp. 540, 576-578, (i) Above, pp. 575 sq. (7) Above, p. 936. (m) Mackreth v. Marlar, 1 Cox, 259; King v. King, 1 My. & K. 442. It is submitted that the former of these cases establishes that one entitled to rescind a contract for the other party's breach of it may sue as plaintiff in equity to enforce this right, as in case of rescission for a misrepresentation (above, pp. 728, 730), but must, as a rule, make entire restitution. The question, not contested in that case, of an exception occurring in the case of a deposit, is discussed below, pp. 951-953, and n. (f). In the latter case (approved in Hope v. Hope, 22 Beav. 351, 365) a purchaser let into possession before completion received notice that it was impossible for the vendor to make a good title, but he declined either to quit possession or to accept such title as the vendor could give and pay the purchase money; and it was held, as he would not accept the latter alternative, that he must give up possession and account for all rents and profits received by him. A fortiori, it is thought, a vendor rescinding for the purchaser's breach of contract and not being himself in default must be entitled in equity to exact the like restitution as he is bound to make. The equitable right to take active proceedings to rescind a contract of sale for the other party's default is also illustrated where the defendant to an action for specific performance fails to comply with a judgment against him. In this case the plaintiff entitled to sue at law, independently of the contract, to recover any money paid or property transferred by him thereunder (»), and also, it seems, to recover any money necessarily expended by him in discharging any obligation imposed on him by the agreement (o). Thus a purchaser rescinding the contract for the vendor's failure to show a good title may recover his deposit, if any, or any other sum paid on account of the purchase money, together with interest thereon at four per cent. per annum (p); and a vendor who has delivered over possession before completion and rescinds for the purchaser's failure to pay the price, may recover possession of the land sold. And it appears that either party lawfully rescinding the contract for the other's breach is entitled to recover his expenses incurred in discharge of any obligation imposed on him by the contract, as of the investigation of title (q), though it is questionable may, at his election, move in the action to have the contract rescinded and to obtain restitutio in integrum; Foligno v. Martin, 16 Beav. 586; Clark v. Wallis, 35 Beav. 460; Henty v. Schröder, 12 Ch. D. 666; Hutchings v. Humphreys, 54 L. J. Ch. 650, 652; Olde v. Olde, 1904, 1 Ch. 35; Fry, Sp. Perf. §§ 1171–1173, pp. 530-532, 3rd ed. (n) Above, p. 936. (0) De Bernardy v. Harding, 8 Ex. 822, 824. (p) At law, the deposit or any other sum of money paid on account of the purchase money could only be recovered without interest by a purchaser rescinding the contract in an action for money had and received, unless a written demand claiming payment of interest had been made under stat. 3 & 4 Will. IV. c. 42, 8. 28; Walker v. Constable, 1 Bos. & Pul. 306; Flight v. Booth, 1 Bing. N. C. 370; Frühling v. Schroeder, 2 Bing. N. C. 77, 80; 2 Dart, V. & P. 949, 5th ed. But in equity the purchaser rescinding the contract was entitled to have his deposit or any other sum paid on account of the purchase money returned to him with interest at four per cent.; see cases cited above, note (m). And under the present practice the purchaser rescinding the contract may recover interest according to the rule of equity without having made any demand or claim under the above-mentioned statute; see cases cited above, p. 937, n. (~). (q) Kitton v. Hewett, 1904, W. N. 21; 2 Dart, V. & P. 945, n. (b), 957, n. (n), 5th ed.; and consider Camfield v. Gilbert, 4 Esp. 221, 223; De Bernardy v. Harding, 8 Ex. 822, 824; and the facts that such expenses may be recovered by a party rescinding the contract for innocent misrepresentation and that at common law rescission for an innocent misrepresentation could only take place by way of rescission for breach of an essential stipulation forming part of the contract; above, pp. 724-728, 731, 750, 751. And in several cases where, on a |