At the close of their argument,

The LORD CHANCELLOR, addressing the Solicitor-General, said-I must hear you upon the authorities, for they appear to be in a state of great confusion; there is not one principle laid down which can guide me, and I shall have to form an opinion, upon looking into them, to say what the rule ought to be. As far as I have been able to collect from them, I cannot say what the principle is that is to regulate the point, for I find the very same judge laying down the rule on one occasion one way, and on another the other. You need not trouble yourself upon the facts of the case. That there has been a breach of contract on the part of the vendors is quite plain. The day on which the abstract was to be delivered being three days after the order was made absolute establishing the purchase, the purchaser would have to look to that, and it is not at all the duty of the other party to call upon him to do it at any other time-it is a proceeding between the parties, and they had ample opportunity of ascertaining when it was to take place: the vendors are therefore bound, as much as if they had had notice of the order confirming the order nisi-they are bound by the act of the Court; and therefore, three days after that day, they were bound, according to their contract, to deliver the abstract. What may be the effect of that upon the authorities, I shall be glad to hear any observations upon; at the same time, I must say, a greater injustice and hardship cannot be than would result from the facts, which I do not say exactly apply to this case, but which may result from the rule laid down: a party, having made a contract by which interest at 51. per cent. on the purchase-money was to be paid, is to be at liberty-I do not say by fraud or covin-to get for himself a benefit by his own negligence or delay, whereby he postpones the party from completing his purchase, and obliges him to pay interest for an indefinite time, until he thinks proper, by the delivery of the abstract, to shew a good title-it may run on for years: however, the authorities must de

the money. That is the ordinary rule, and that would be the practical effect of the rule in all cases where there merely is a time fixed for the performance of the contract, and nothing specific is said as to the time from which interest is to run. It is the ordinary case that a time is fixed for the performance of the contract; from that time interest is payable upon the purchase money, and the purchaser is entitled to the rents and profits. Now, that happens to be particularly adverted. to and recognised in, I believe, every case which has been quoted against the purchaser upon the present argument. I mean those cases which occurred, all of them, before Sir John Leach. In Esdaile v. Stephenson, he in terms takes notice of the rule. In Paton v. Rogers, and in Jones v. Mudd, he does the same thing. Every one of those cases recognises the rule, and lays it down as the general rule and practice of the Court. In Esdaile v. Stephenson, he said, where the parties had fixed a time from which interest was to run, the Court could not depart from the rule which the parties had so laid down for themselves. It does not appear very obvious why specifying in terms a contract, and a contract which the law implies, though not specified, should make any substantial difference between the parties, the rule being perfectly established, that interest is payable upon the purchase-money from the time the contract ought to be performed. There being nothing special to take the case out of that rule, one does not see why the rule, though not reduced into terms in the very words of the contract-why that in its nature is not to be considered part of the contract, the parties contracting according to the ordinary rules which regulate the question of interest between the parties; why the parties specifying that which the law implies, should make any difference in their rights, does not well appear. It is very true that parties may contract so as to place themselves out of an implied rule; as, where the law would imply the allowance of interest from a certain time, parties may by special contract say that interest shall not be paid at that time, but at some other time; but in no case do I find a contract reaching this point-a contract saying, (what no purchaser whatever would say), "You are to pay interest from such a day, although you are prevented from performing your contract by the acts of the vendor." I have no doubt the truth is, that in all these cases of unforeseen events, by the words "from any cause whatever," it is always intended to exclude that which is not expressly provided for by the contract. The question is, whether a vendor who does not deliver an abstract shewing a good title until a period long after the time specified, and thereby fails in Nov. 13.-The LORD CHANCELLOR.-The question in performing his part of the contract, and prevents the this case is of some importance for the general practice purchaser from having the benefit of his purchase of the Court, but certainly it does not present a ques-until a later period, is to have the benefit of the contion of any difficulty as to what, in justice, ought to be done, or what the rule ought to be; but the difficulty arises from the decisions that have taken place, inconsistent in principle, at least, some with others; and those which appear to be nearest right, in point of result, put it not always on the same ground. Now, the simple case is this-in conditions of sale a certain time is fixed for certain acts to be done-a certain time fixed for the delivery of the abstract, and a certain time for payment of the money, or interest to run upon the money if not paid at that time. It is quite obvious the intention of the parties was to have an opportunity, before the time came for the payment of the money, from which time the interest was to run, of seeing whether the abstract shewed a good title or not. If the abstract did shew a good title, then, according to the rule, the property would become the property of the purchaser from the time at which the contract ought to be completed, and the money would be the money of the vendor; and therefore the one would be entitled to the fruits of the property, and the other to the fruits of

cide it.

The Solicitor-General, in reply, referred to Reed v. Farr, (6 M. & S. 121).

Temple and R. W. E. Forster appeared for other parties.

LORD CHANCELLOR.-I will look into the cases. I shall be very glad to find, from Esdaile v. Stephenson downwards, that the authorities are consistent in principle. I cannot come to a conclusion upon them till I have examined them, and perhaps I shall be able to do that before to-morrow morning.

tract against the purchaser. Nothing can be more unjust than to hold that, and that a purchaser, having contracted to pay 51. per cent. upon his purchase-money, (in almost all cases of course exceeding the annual value of the property purchased), is liable to pay that from the time contracted for, though the vendor has not performed his part of the contract, by delivering the abstract, so as to enable the purchaser to have the benefit of the contract. Now, there are two ways in which that may be met in argument and upon principle-either consider the case which has happened as not within the contract, and that the party never did mean to contract that he would pay interest, although he is prevented having the benefit of his purchase from the default of the vendor, in which case it would be the ordinary case of doing justice between the parties, an event having arisen which was not expressly provided for by the contract; or else it may be provided for, as the Master of the Rolls seems to have thought it ought to be provided for in the case which was before him, of Oxenden v. Lord Falmouth, that you are to pay your interest

the Rolls, when the case was argued a second time before him, finding the rule so laid down by his predecessor, did not feel that he was at liberty to act upon a rule diametrically opposed to that which was so laid down; he saw the injustice of it, but, being bound by Esdaile v. Stephenson to compel the party to pay the interest, he left it open to him to apply to the Court for compensation. It does not appear to me at all necessary that I should decide on which ground I think the purchaser is not entitled to the 57. per cent., but they both come to the same thing; it is a mere question on controverted authorities, which is the true principle to put it upon. I find either will come to the same result. It is undoubtedly certain, that justice requires that the effect of the rule should not be followed, and it is very immaterial to distinguish it, as it respects compensation for the amount of interest otherwise payable, or as compensation to be paid to the purchaser by the vendor, that compensation being to be paid out of the very amount of interest which the purchaser, according to the contract, had to pay. None of those cases are directly in point, except that of Esdaile v. Stephenson, and I have no doubt Sir John Leach laid down the rule very distinctly. There are cases where there are very peculiar expressions used, such as "from any cause whatever," and in others, "from any cause whatever, except with the wilful default of the vendor;" but there is not one of them in which the very case occurs which is the subject now for consideration-whether the purchaser is to pay interest, notwithstanding that delay should be occasioned by the act of the vendor; nor has any authority been referred to which would lead to the conclusion as to what would be the result if such a contract were entered into. I have before said it is not very likely it should occur; and one does not very well see why, if a party contracts for performance of the whole, he should not be bound by it; but that cannot be considered as obligatory upon the purchaser, who cannot be supposed to look to delay arising from the non-performance of the very act which the vendor stipulated he would perform. When you speak of "from any cause whatever," you must mean some cause not provided for by the contract. The parties do not consider the probability of either the one or the other breaking the contract, the vendors contracting to do a certain duty on a certain day, and the purchaser contracting on a certain day to found upon that stipulation the condition, which, as between the parties, is the entire contract contracted to be performed by the vendors. However, I do not think it necessary exactly to specify it in the order; it is quite sufficient that I should refer it to the Master to inquire from what time a good title was shewn, and direct the payment of the interest to commence from that time. Of course, the income of the property will be regulated by the same rule.

upon the purchase-money according to the terms of the contract with the vendor; but if the vendor has not performed his part of it, and he has exposed you to damage, the damage being the difference between the interest and the value of the property, by not performing his part of the contract; and though that is a departure from the terms of the previous contract, which the Court will not regard in allowing a specific performance; yet in these cases the Court would regard it by giving to the purchaser compensation for the loss he has sustained by the non-performance of the whole contract by the vendor. If a vendor sells property under a description more favourable than properly belongs to it, or describes quantities different from those which the quantities really are, or professes to sell parcels of land not necessarily connected with the main body of the land, and he cannot make out a good title to the whole, the Court performs the contract, but it does so not in the terms upon which the parties made it: if the contract is for the whole estate, but the vendor is unable to make a title to certain parts, but which parts are not necessary for the enjoyment of the residue, and the Court finds, that, in substance, the contract may be performed, it will perform it, but it will not perform it leaving to the vendor the benefit of the error, and compelling the purchaser to pay the whole purchase-money, he not being able to get the whole property he contracted for. It performs the contract in those cases which are capable of compensation, by inquiring what the diminution in value is, from the circumstances which arise upon the investigation of the title; and alters the contract, so far as not to compel the party to pay the principal money, because he has agreed to pay 10,000l., but it says, "You shall pay 9500l., or whatever other sum shall appear to be the value of the property which you can get, deducting only the difference between the value of that which he contracted for, and that which he cannot get." With regard to the principal money, there is no doubt about the practice: the Court will deduct from the principal money what may be necessary to put the purchaser in the situation he ought to be placed in; and on what principle is it not to deal with interest? Then the question is, whether the Court is at liberty to deal with interest upon terms different from those contracted for. In all these cases of compensation, the Court does deal with the principal; and is not the same rule to apply to interest? The parties agree to pay interest in a certain way; on what terms did they do that? Why, upon the condition of the vendors giving a good abstract within a certain time. The purchaser could not be considered as paying his purchase-money before he got his abstract. If, therefore, the vendors are entitled to the interest upon the money from the time they contracted for, why are they not in the same way to make compensation out of the purchase-money for default on their part? I do not On the conclusion of the judgment a discussion took think that any such principle as that can be maintained; place as to the loss of interest on the purchase-money since on the contrary, it would do the greatest possible injus- it was invested on the 26th December, 1845, at 27. 10s. tice. Where a purchaser agrees to pay 51. per cent., it per cent., the Solicitor-General contending, on behalf of is always a great prejudice to him to pay it earlier than the purchaser, that the vendors ought to be answerable the time from which he is to have the enjoyment of the for the difference between that rate of interest and what property. No property purchased produces 51. per might have been obtained for it; but the Lord Chancent.; it is a benefit therefore to the vendor, and a loss cellor decided against this claim, on the ground that to the purchaser; and if it arises from the default of the purchaser, by investing his purchase-money, as he the vendor, is the vendor to get the benefit of his own did on the 26th December, did that which, according wrong, and to profit by his own breach of contract, and to his Lordship's decision, (supra), was unnecessary, is this Court specifically to perform a contract, with all and that the purchaser must bear the loss of the unthe disadvantages that a vendor imposes upon a pur-productiveness, it being caused by his own act. At the chaser, without giving the purchaser any compensation? I should be very sorry indeed to find that the authorities were such as to compel me to follow such a rule. I am happy to say that I do not; and although the Master of the Rolls, in the last case, was evidently hampered by the rule laid down by his predecessor, before whom the point came for decision, the Master of

close of the discussion,

The LORD CHANCELLOR said-My opinion is, that, the vendors being in default, the delay having been occasioned by their not performing their part of the contract, they are not to exact from the purchaser the payment of interest until the time they put themselves right, by shewing a good title on their abstract. The effect of that

is to postpone the day stipulated in the contract for the time of the completion of the contract until the time the vendors put themselves right, and shewed their title to be good on the abstract. The result, therefore, is, until that time there would be no demand to be made by the vendors for the payment, and therefore the interest, which was to stand in the place of that payment, had not commenced to run: it did run when they shewed a good title, and not before. That is giving the purchaser compensation for the loss and injury which he sustained by the non-performance of the contract by the vendors, but they are not, therefore, to make compensation for any loss not arising out of their contract; and that default on the part of the vendors did not make it necessary or proper for the purchaser to lay his money by and make it unproductive, for the purpose of throwing the loss of that unproductiveness on the vendors. I think it is carrying the principle out strictly, to postpone the principal till the time a good title was shewn: the vendors would be entitled to the rents and profits up to that time, and the purchaser's liability to pay interest would commence from that time, and the Master must inquire when that time arose.-Order of the ViceChancellor discharged.

Lewin, in support of the petition, cited" Wilkinson ▼ Charlesworth and Marsack v. Lyster, (10 Beav. 324). Miller, contra, referred to Atcheson v. Atcheson, (ante, chored to sesɔ a 287 soduro 7 p. 666).

Lewin, in reply. tad ni ts79ftib stimp ei wal sdt Lord LANGDALE, M. R. If the fund stands to the acai count stated, I think the petitioner entitled.-Ordered annie and of Tolens) stufozda na ai stadi as prayed. vtoqəza oli vidaus ir pusbuj a víno svad yedi radio ti quinoasta turd tusloani edt To VICE-CHANCELLOR OF ENGLAND'S COURT BELL. BELL. July 27 and Aug. 3. ff trovice

**

Teniana sypoza y Insolvency-Retainer hero to je One of the Creditors of an Insolvent died, leaving the In solvent One of his Next of Kin: Held, that the Insol event's Share of the Personal Estate must be paid to the Assignees of the Insolvent, without any Retainer on Account of the Insolvent's Debt. 107, „stotka, bas tind By an order of the Court for the Relief of Insolvent Debtors, dated the 17th May, 1841, and made on an an plication, under the 1 & 2 Vict. c. 110, by Edward Bell, then a prisoner, all his real and personal estate, and all his future estate, were vested in the provisional assignees and on the 21st July, 1841, Edward Bell gave his war rant of attorney to the attornies of the assignee to con fess judgment for 23407., at the suit of the assignee, on LAPRIMAUDAYE v. TEISSIER.-Nov. 6 and 7, 1848. same court, dated also the 21st July, 1841, it was ad which judgment was entered up. By an order of the judged and ordered, that Edward Bell

ROLLS COURT.

Arrears of Dividends.

A Testator directed the Dividends of 10,000l. Consols to charged from custody, and entitled to the ould be dis

benefit of the

be enjoyed by B. B. H. and C. his Wife during their joint Lives, and the Life of the Survivor. By the De cree, the Fund was ordered to be paid into Court, and the Dividends were ordered, as and when they should accrue, to be paid to B. B. H. and C. his Wife during their joint Lives, and to the Survivor during his or her Life, or until further Order. B. B. H. died, leaving his Wife surviving; and there were Four half-yearly Dividends due at his Death:Held, on the Petition of the Widow to have these Dividends paid to her, that, having regard to the Account to which the Fund stood, she was entitled to them. auser di be; o Toluna The testator in the cause bequeathed to Brook Baines Hurlock, and Charlotte his wife, a sum of 10,0007, 37. per Cent, Consolidated or Reduced Annuities, at the option of his executor, to be put in their joint names, and that of his executor; they, the sald Brook Baines Hurlock and Charlotte his wife, to enjoy the interest thereof during their joint lives, or the life of the survivor of them; and after their decease, if any children, to be equally divided amongst them, him or her, if only one; and if they should both die without issue of their marriage, the 10,000l. was given over. By the decree made on the 4th July, 1811, it was ordered, that the defendant, Stephen Teissier, should transfer into court, to an account to be intituled "Brook Baines Hurlock and Charlotte his wife, their Stock Account," the sum of 10,000%, 37. per Cent. Consolidated Bank Annuities; and it was ordered, that the dividends to accrue thereon, when so transferred, should be, as and when the same should from time to time accrue and become due, paid to Brook Baines Hurlock and Charlotte his wife during their joint lives, and to the survivor of them during his or her life, or until the further order of the Court; and after their decease, it was ordered that any person or persons interested therein, or entitled thereto, shouldBethell and Cotton, on the other side. You be at liberty to apply. Brook Baines Hurlock departed this life in March, 1849, leaving Charlotte Hurlock his widow, and also a daughter. At the time of the death of Brook Baines Hurlock, four half-yearly dividends,

said act forthwith, as to the several debts due on the 17th May, 1841, to the persons named in the insolvent's schedule as creditors. One of the creditors in the sche dule was John Bell, for a sum of 4507. John Bell dief in 1847, and on the 18th January, 1848, a bill was filed for the administration of his estate. Edward Bell was one of his next of kin, and the assignees under Edward Bell's insolvency were made defendants. The use accounts were decreed, and the Master found, that 4507 was due to the estate from Edward Bell. The cause was heard on further directions on the 29th June, 1849, and was now fer down to be spoken to, the question to be argued being, whether the assignees were entitled to receive the whole of Edward Bell's share, as next of kin, in the intestate's estate, or whether the debt due by Edward Bell was to be set off against it.The assignees, however, only claimed 300%, which would be sufficient to pay in full all the debts of Edward Bell and presented their petition praying payment of it, which came on at the same time as the cause.

Rolt and Speed, for the assignees.-It is clear that the act 1 & 2 Vict. c. 110, refers to money in the hands of the assignees; they have a right to recover, and the debt is vested in their hands. A debt cannot be transferred ordinarily, but this is a statutable transfer. Ther vent gives his warrant of attorney for all that he of and, amongst the rest, for all that he owes to the presentatives of the brothers and the assignees can force it. The debts of the insolvent are not discharge by sects. 90 and 91, but can only be enforced by the signées; and sect. 89 shews how they are to enforce them. Suppose the debts had been contracted since the insolvency; still this money could not be retained, but is the money of the assignees (Cherry Boulibee, My. & C. 442).979 innellate

obtain this money in any other way than by the judg ment, and you obtain it by the right of the creditor, and he attaches the insolvent's share of the residue. You come to take it as the property of the insolvent; and vent take in it? The rights of the parties are, that the insolvent should pay the debt before he can take his share. In Cherry v. Boulbee it was not noticed,

VICE-CHANCELLOR KNIGHT BRUCE'S COURT. auction, in four lots, and the petitioner became the