course, none of the conditions of sale are waived."

To this it was replied by Messrs. Nelson that the non-production of the office copy of the will at an earlier period had diverted their attention from the question, and that they could not advise the defendant to complete after the opinion given. The plaintiffs then filed this bill for specific performance.

Mr. Glasse and Mr. Walford, in support of the bill, contended that the defendant was precluded by the fourth condition from raising this objection, which should have been taken, if at all, within the twentyeight days after delivery of the abstract. In the construction of the condition time was of the essence of the contract. They cited

Parr v. Lovegrove, 4 Drew. 170.

They also contended that upon the construction of the will, without, or at all events with, the aid of the residuary devise, the plaintiffs had made a good title (1).

Mr. Baily and Mr. E. F. Smith, for the defendants, submitted that the abstract was not a perfect abstract until the will was fully set out, which was not done at first, as it did not contain the residuary clause. Moreover, the twenty-eight days could not run until a title had been "deduced," which imported verification of the deeds abstracted. But if the objection had not been taken in time, the plaintiffs' solicitors had waived the question by their letter suggesting that a bill should be filed for specific performance. Under any circumstances, a purchaser would not be compelled to take a title of this nature until the doubt as to the right of the vendor to sell had been set at rest.

They cited the following cases

Southby v. Hutt, 2 Myl. & Cr. 207.
Cutts v. Thodey, 13 Sim. 206.
Burroughs v. Oakley, 3 Swanst. 159.
Pyrke v. Waddingham, 10 Hare, 1.

KINDERSLEY, V.C.-The plaintiffs by this bill in effect insist upon the right to specific performance upon two distinct.

(1) The arguments and cases cited on both sides upon the question of construction are omitted.

grounds. The first ground is this-that whether they can or cannot shew a good title, they are entitled to specific performance, upon the ground that the conditions of sale contained an express provision that unless objections were sent in within a certain time they should be of no avail, and that any objections which might exist to the title, not sent in in the shape of an objection within that time, were to be considered as abandoned and waived, and the title accepted. The other ground upon which the plaintiffs insist upon the right to specific performance is, that notwithstanding the objection made, there is a good title.

Now, the first question which I have to consider is the question arising out of that condition of sale which relates to the time within which the objections to the title were to be sent in. The conditions of sale contain, in the fourth of them, this provision, which I think I may say has now become a very common provision in the case of sales by auction upon conditions. There is nothing special in it-it is well understood; and I apprehend there is no reason why such a condition is not a good condition. If the condition is not observed, if an abstract is not delivered within the time specified, the purchaser has a right

to

say, "The vendor has not performed the conditions, and therefore I repudiate the purchase." On the other hand, if the vendor has performed the condition of delivering the abstract within the specified time, or if he has not, if the abstract were accepted, and that condition waived by the purchaser, then if the purchaser does not deliver his objections, or if he does deliver his objections, if there be any objection not contained in what are so sent in, but afterwards thought of, such objection shall be considered as waived and the title to that extent accepted. It appears to me there is no doubt that this Court would consider, as I think it might with great advantage consider in a great many more cases than it does, that parties ought to be allowed to make their own bargains, and if they do so, and there is no concealment, trick or contrivance, there is no reason why this Court should relieve them from the effect of their bargains. Certainly it has in a great many instances interfered,

where, I think, if the matter were res integra, it would be very little disposed now to interfere, to relieve them from their bargains; but it has never been doubted, that by such a condition as this, according to the common expression, time is made of the essence of the contract; that is to say, the objection must be sent in within the time, if the purchaser means to avail himself of such an objection, and if he does not, the vendor has a full right to avail himself of the condition, and to say, "You have accepted the title to the extent of that objection, and therefore I am entitled to a decree." It does not signify what the objection is. It does not signify whether the objection is an objection on any general rule or law, or arising out of any particular question of the construction of a particular instrument. Whatever may be the nature of the objection, if it be not sent in within the time, the vendor has a right to avail himself of the condition.

Now, I have stated what is the effect of this condition, and the construction of it is undoubted; and the only question which arises upon it is, has the condition been performed? The plaintiff's say it has not been performed by the purchaser; he has not sent in his requisitions within the time; that is, the objection which is now the question raised with regard to the title. The question whether the condition has been performed depends on this-what is meant by delivering an abstract of title? because the language of the condition is, that if within twenty-eight days after the delivery of the abstract the objections or requisitions are not sent in, they are not to be of any avail. The contention is, that the mere sending what is commonly called an abstract, which is a number of sheets of paper, purporting to set out, not verbatim, every document, but purporting to set out every document, or at least every material document, sufficiently to shew what the effect of that document is-this is not enough; but it includes, in addition to that, if not an actual comparison of that abstract with the deeds themselves, at all events an offer by the vendor to shew those deeds whenever they are wished for. Now, I apprehend that an abstract is delivered whenever a number of sheets of paper, call it what you will, whenever a document is

delivered to the purchaser, which contains, with sufficient clearness and sufficient fullness, the effect of every instrument which constitutes part of the title of the vendor, and that that is a delivery of the abstract, even though it takes place, as it must, I apprehend, in all cases take place, before the actual comparison of the abstract with the deeds themselves, which they purport to abstract. I cannot say that I feel the smallest doubt upon it, and I think Mr. Smith has very fairly said, "My view of it is this-you must have an offer to produce the deeds;" and he very fairly said that that offer is implied in the sending of the document; and no doubt that is really the truth of the case. The vendor sends that which purports to be an abstract of documents upon which his title depends. By sending that he announces to the purchaser that those are the documents which he is ready to shew him at any time, whenever he wishes to see them, either at his own place of business or any place of business that may be arranged. Therefore, I consider that when, on the 18th of June, what is called the abstract, in common parlance, was sent to Messrs. Nelson, that was a delivery of the abstract according to the conditions of sale; and the twenty-eight days within which the purchaser was to send in his objections or requisitions are to date from that 18th of June 1863.

It has been suggested that there occurs in this condition the word "deduce,” and a case (2) has been referred to with reference to the word "deduce." Now, if we are to examine the word critically, it is quite clear when you speak of deducing a title, as meaning to express either the delivery of the abstract or the shewing of the deeds, whichever it may be applied to, it is not altogether an appropriate expression, or strictly correct. The deducing the titlethe appropriate use of that expression would be this I deduce my title from my greatgrandfather; I do not deduce my title by sending you a document; nor do I deduce my title by shewing you the deeds. By sending you this abstract and shewing you the deeds, I shew you how I deduce my title; but according to the strict meaning of the words

(2) Southby v. Hutt, 2 Myl. & Cr. 207, 213, is doubtless the case intended.

"deducing the title," it is stating from whom or from what source the party draws forth his title. He deduces it; he derives his title from such a source; and therefore the expression, either in the case which has been cited, or here, is not strictly and accurately correct. But what is meant by it here? It is perfectly plain what is meant by it. Take it in connexion with the context: "The vendors shall, within fourteen days after the day of sale, deliver to the purchaser or his solicitor an abstract of the title to the property" (shall deliver an abstract of his title), "and the purchaser or his solicitor shall, within twenty-eight days after the delivery of the abstract, send or deliver in writing to the vendor's solicitors all objections and requisitions, if any, which the purchaser may have to make in respect of the title deduced." What is meant by that? Of the title which that abstract shews. Clearly, that is the plain meaning of it, if you take it in connexion with the context; and I do not think that any special construction can be put on this condition by reason of that word "deduced" occurring.

Then we come to this: Supposing that the delivery of the abstract was the sending in that document which is commonly called the abstract, which I conceive it clearly is; supposing that to be so, it is said, and said with perfect justice and good foundation, the abstract so sent must be a complete abstract, because, if it be not a complete abstract, it in point of fact is not the delivery of an abstract. That is perfectly well founded. Then it is said, this was not a complete abstract, for this special reasonIt purported to abstract the will of Mr. Oakden, under which will the vendors deduce their title, but it did not abstract that will as it ought to have done, for the purpose of enabling the purchaser to judge whether a good title was made by it or not, and therefore it was not a full abstract, and the twenty-eight days cannot count from that time when the document, called the abstract, was delivered.

Now, the question really seems to me to resolve itself into this-was that abstract a complete abstract, so far as it purported to abstract the will of Mr. Oakden? It appears to me that it was a complete abstract. The ground upon which it is contended that it

was not a complete abstract is this-it did not set out the residuary clause; that is, a clause by which the testator devised all the residue of his estate to Mr. Oakden the father, one of the vendors. Now, if the title of the vendors depended upon that residuary devise, unquestionably it was an incomplete abstract. It has been argued on the part of the vendors, that they can make a good title in that way, if they fail upon the other part of the will. But that is not the question which I am now considering. The question which I am now considering is, whether, for the purpose of the objection to the title which is now made, that will did contain a complete abstract, although it omitted to set out the residuary clause. The question now raised, I should say, is a question upon the construction of that part of the testator's will by which he purports, according to the vendors' contention, to give an estate for life to Mr. Oakden the father, with a vested estate tail in his eldest son, Mr. Oakden the younger, the other vendor. That is the contention of the plaintiff. The plaintiffs have no right, for this purpose, to resort to the other ground of title, namely, that which arises under the residuary devise, because clearly as to that there was no sufficient abstract; but the question is, whether there was a sufficient abstract with reference to the contention of the plaintiff that Mr. Oakden the younger, the eldest son of Mr. Oakden the elder, had, when he executed the disentailing deed, a vested estate tail in remainder dependent upon his father's life estate.

Now, then, it comes to this-what possible difference can it make in the construction of this will, which gives the life estate to Mr. Oakden the father, with either a vested or contingent estate tail to Mr. Oakden the younger, his son-what difference does it make whether there was a residuary devise or not in the will? It appears to me none. I took the liberty of urging upon the counsel for the defendant to press upon me reasons why I should consider that necessary to enable the purchaser to judge whether the will made a good title, so far as relates to the claim of an estate tail on the part of Mr. Oakden the younger; and I must say it appears to me that the question would stand precisely the same whether there was a residuary

devise in favour of Mr. Oakden the elder, or a residuary devise in favour of a perfect stranger, or no residuary devise at all; that it could not make the smallest difference in the construction of the will. I quite admit that if it could assist in the slightest way, I do not care how minute the connexion might be, or if it could by any possibility assist the purchaser in judging of the question-whether the will gave a good estate for life to the father, and a good vested estate tail to the son-if it could have the least bearing on that, I should say there was not a complete abstract; but, I confess, after turning it over in every way, and soliciting the arguments and assistance of the learned counsel for the defendant, I have failed to see how it could have the slightest effect. Of course it is not contended on the part of the defendant that it is necessary, in order to make a complete abstract of a will, that every word and every part of that will should be set out. It is admitted, that all that has no bearing upon the devise under which the title is said to exist, need not be set out, and it appears to me that that is exactly applicable to this residuary devise. It had no more to do with this question than any clause in the will by which a legacy of 501. might be given to a servant; not any more connexion than that.

That being the case, it appears to me that a good and complete abstract was delivered on the 18th of June. Then the requisitions were sent in within the time; but there was no doubt or question raised with regard to this point as to the construction of the will, and no difficulty was suggested upon the subject.

Then comes the other question, whether the plaintiffs, the vendors, have waived the condition? No doubt if, after the time specified, objections or requisitions are sent in, and the vendor, upon receipt of those requisitions and objections, deals with them and negotiates upon them, and does not avail himself of the condition or insist upon the benefit of it, then indeed, he has waived the condition; and the question is, whether that is the case here? It is contended that he has done it by the letter of the 31st of July 1863. That is an answer to a letter by which the purchaser's solicitor had sent the vendors' solicitors a case which they had submitted to an eminent convey

ancer upon the subject, and his opinion thereon. In answer to the purchaser's solicitor, Mr. Hinds sends this letter "Dear Sir, I received copy of case and opinion of Mr. Joshua Williams, for which I am obliged. My clients were advised that they could execute a disentailing deed and then sell. Their power to do this seems to be questioned by Mr. Williams. That question must, of course, be set at rest; and I apprehend the only way this can be done is to file a bill for specific performance, unless you can find any better way of settling the point." If the letter had stopped there, I apprehend it would have been a waiver of the condition; but it goes on to say, "Of course, none of the conditions of sale are waived." I do not see how it is possible to say that this letter waived the condition. I am of opinion, therefore, there is no waiver of the condition of sale. That being the case, I think it comes to thisthat whether the objection be a good or a bad objection, it is made after the time prescribed by the conditions of sale, and that the condition is not waived by the vendors. In that view of the case it appears to me quite unnecessary to go into the other question on the supposition that the objection had been sent in time, or that when sent the condition as to time had been waived. If that had been the case, it would have been necessary for me to have considered the question of the construction of the will, and seen whether there was such a clear and good title as that I could force it upon a purchaser who hesitated to take it. I think it is unnecessary to express any opinion on that point, except to this extent, which I will take the liberty of doing, if it is any satisfaction to the purchaser-at all events, it is a satisfaction to myself to say, that I confess I entertain a very strong opinion in favour of the goodness of the title. I will say no more upon it than that. Whether it be such a title as I could force on an unwilling purchaser, I do not decide, because it is unnecessary for this case. I decide the case solely upon the ground that the objection taken is not in time, and the condition not waived. There must be, therefore, a decree for specific performance.

By the settlement made on the marriage of J. S. and E. G, trustees were directed to pay the income of 10,000l. to J. S. for life, with remainder to E. G. for life, and after their deaths to transfer the capital to or among the child and children of the marriage, his, her or their respective executors, administrators or assigns, equally if more than one; the shares of sons, if infants at the death of the surviving parent, to be paid at twenty-one, and the shares of daughters, if infants at that time, to be paid at twenty-one or marriage; and if there should be no child, or, being such children, all of them should die before they became entitled, then over. There were six children of the marriage, of whom two died infants in the lifetime of their parents, and the other four survived both parents and attained twenty-one :-Held, affirming the decision of the Master of the Rolls, that the deceased infant children took vested interests.

This was an appeal from a decree of the Master of the Rolls, made so long ago as the 17th of May 1860. The case is reported in 28 Beav. 53, and 29 Law J. Rep. (N.S.) Chanc. 406.

By the condition of a bond, made by way of settlement, dated the 19th of January 1816, and made on the marriage of John Smith and Eleanor Gale, the trustees were directed to pay the income of 10,000l., secured by the bond, and afterwards charged on property in Scotland, to J. Smith for life, and after his death to Eleanor Gale, for life, and the settlement then contained the following trust as to the capital.—

"And from and immediately after the decease of the said John Smith and Eleanor Gale, upon trust that the said trustees or the survivors or survivor of them, or the executors or administrators of such survivor, do and shall transfer, assign and make over the sum of 10,000l. sterling to and between or among all and every the child and children of J. Smith and E. Gale, his, her or their respective executors, administrators or NEW SERIES, 33.-CHANC.

assigns, equally to be divided between them the said children, if more than one, share and share alike, and if but one, then to such only child; the share or shares of such of the said children as shall be a son or sons if minors or infants under the age of twenty-one years at the decease of the survivor of them the said J. Smith and E. Gale, to be paid, transferred, assigned and made. over to him or them respectively, at his or their age or respective ages of twenty-one years, and the share or shares of such of the said children as shall be a daughter or daughters if minors or infants under the age of twenty-one years at the decease of the survivor of them the said J. Smith and E. Gale, to be paid, transferred, assigned and made over to her or them respectively, at her or their age or respective ages of twenty-one years, or on the day or days of her or their marriage or respective marriages, which shall first happen after the decease of the survivor of them the said J. Smith and E. Gale; and upon further trust to pay and apply, from and after the decease of the survivor of them the said J. Smith and E. Gale, the interest and produce of the several and respective shares of the said several and respective sons and daughters which shall happen to be minors or infants under twenty-one years of age or unmarried as aforesaid at such the decease of the survivor of them the said J. Smith and E. Gale, to and for the respective maintenance and education and support of the said several and respective sons and daughters until they shall severally and respectively attain their said several and respective ages of twenty-one years or be married; and in case the said J. Smith shall have no child or children on the body of the said E. Gale by him begotten, or having any such child or children, and all of them shall happen to die before they become entitled to their respective shares or portions of and in the trust monies and premises, upon trust that the trustees do and shall from and immediately after the decease of E. Gale, pay and dispose of the said sum of 10,000l. sterling, and assign and transfer the securities whereon the same may be invested," as J. Smith should appoint; and in default of such appointment to J. Smith, his executors, administrators or assigns.

There were six children of the marriage. 4 M