covenantor or his representative. These provisions are now unnecessary in the case of acknowledgments, because the Conveyancing and Law of Property Act, 1881, s. 9 (9), confines the liability for the production of deeds, under the acknowledgment there provided for, to each individual possessor or person so long only as he has possession or control of the documents, the right to the production of which is acknowledged.

Equitable Right to Production.-Should the purchase be completed without an acknowledgment being given for production, the purchaser is nevertheless entitled in equity to have the deeds produced to him (n), and the inability of the vendor to furnish the purchaser with a legal covenant or acknowledgment for production and furnishing copies of documents of title is not an objection to title in case the purchaser will, on completion of the contract, have an equitable right to the production of such documents (o).

Undertaking for Safe Custody. An ordinary vendor is bound (in the absence of stipulation to the contrary) to give an undertaking for the safe custody (p) of documents retained by him, and it is presumed that the benefit of the statutory undertaking devolves in the same manner as an acknowledgment. In the case of trustees and mortgagees

(n) Fain v. Ayers (1826), 2 Sim. & St. 533.

(0) See the Vendor and Purchaser Act, 1874, s. 2, r. 3. (p) See infra, p. 310.

the contract should stipulate that no undertaking will be given (q).

Provisions of the Conveyancing Act. For the convenience of the reader the provisions contained in s. 9 of the Conveyancing and Law of Property Act, 1881, relating to the production and safe custody of title-deeds are given in extenso :

(1) Where a person retains possession of documents, and gives to another an acknowledgment in writing of the right of that other to production of those documents, and to delivery of copies thereof (in this section called an acknowledgment), that acknowledgment shall have effect as in this section provided.

"(2) An acknowledgment shall bind the documents to which it relates in the possession or under the control of the person who retains them, and in the possession or under the control of every other person having possession or control thereof from time to time, but shall bind each individual possessor or person as long only as he has possession or control thereof; and every person so having possession or control from time to time shall be bound specifically to perform the obligations imposed under this section by an acknowledgment, unless prevented from so doing by fire or other inevitable accident.

"(3) The obligations imposed under this section by an acknowledgment are to be performed from time to time at the request in writing of the person to whom an acknowledgment is given, or of any person, not being a lessee at a rent, having or claiming any estate, interest, or right through or under that person, or otherwise becoming through or under that person interested in or affected by the terms of any document to which the acknowledgment relates.

(9) See Key and Elphinstone's Precedents, Vol. I., p. 428. Whether a trustee or mortgagee can in any case be made to give an undertaking seems doubtful. See 29 Sol. J. 215.

"(4) The obligations imposed under this section by an acknowledgment are

"(i) An obligation to produce the documents or any of them at all reasonable times for the purpose of inspection, and of comparison with abstracts or copies thereof, by the person entitled to request production or by any one by him authorised in writing; and "(ii) An obligation to produce the documents or any of them at any trial, hearing, or examination in any court, or in the execution of any commission, or elsewhere in the United Kingdom, on any occasion on which production may properly be required, for proving or supporting the title or claim of the person entitled to request production, or for any other purpose relative to that title or claim; and

"(iii) An obligation to deliver to the person entitled to request the same true copies or extracts, attested or

unattested, of or from the documents or any of them. "(5) All costs and expenses of or incidental to the specific performance of any obligation imposed under this section by an acknowledgment shall be paid by the person requesting performance.

"(6) An acknowledgment shall not confer any right to damages for loss or destruction of, or injury to, the documents to which it relates, from whatever cause arising.

"(7) Any person claiming to be entitled to the benefit of an acknowledgment may apply to the court for an order directing the production of the documents to which it relates, or any of them, or the delivery of copies of or extracts from those documents or any of them to him, or some person on his behalf; and the court may, if it thinks fit, order production, or production and delivery, accordingly, and may give directions respecting the time, place, terms, and mode of production or delivery, and may make such order as it thinks fit respecting the costs of the application, or any other matter connected with the application.

"(8) An acknowledgment shall by virtue of this Act satisfy any liability to give a covenant for production and delivery of copies of or extracts from documents.

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'(9) Where a person retains possession of documents and gives to another an undertaking in writing for safe custody thereof, that undertaking shall impose on the person giving it, and on every person having possession or control of the documents from time to time, but on each individual possessor or person as long only as he has possession or control thereof, an obligation to keep the documents safe, whole, uncancelled, and undefaced, unless prevented from so doing by fire or other inevitable accident.

"(10) Any person claiming to be entitled to the benefit of such an undertaking may apply to the court to assess damages for any loss, destruction of, or injury to the documents or any of them, and the court may, if it thinks fit, direct an inquiry respecting the amount of damages, and order payment thereof by the person liable, and may make such order as it thinks fit respecting the costs of the application, or any other matter connected with the application.

“(11) An undertaking for safe custody of documents shall by virtue of this Act satisfy any liability to give a covenant for safe custody of documents.

"(12) The rights conferred by an acknowledgment or an undertaking under this section shall be in addition to all such other rights relative to the production, or inspection, or the obtaining of copies of documents as are not, by virtue of this Act, satisfied by the giving of the acknowledgment or undertaking, and shall have effect subject to the terms of the acknowledgment or undertaking, and to any provisions therein contained.

"(13) This section applies only if and as far as a contrary intention is not expressed in the acknowledgment or undertaking.

"(14) This section applies only to an acknowledgment or undertaking given, or a liability respecting documents incurred, after the commencement of this Act."

SECTION 11.

IDENTITY.

It is frequently necessary to provide by the contract that the purchaser shall admit the identity of the parcels of the estate sold, upon the evidence afforded by comparison of the description in the contract and the muniments, and that further evidence of identity shall not be called for, in the absence of which a purchaser is entitled to be furnished with satisfactory evidence of identity of the parcels; but such a provision, unless framed to meet the particular discrepancy, will not relieve the vendor from pointing out the entire property proposed to be sold (r), or preclude a purchaser from requiring evidence of identity if the descriptions of the parcels in the contract vary from those in the abstracted documents (s). And where it was provided that the purchaser should not require any further proof of identity than was furnished by the title-deeds, it was held that a good title was not made under the contract, inasmuch as the contract was, in effect, that the deeds should show identity, and no identity was in fact shown (t).

So far as regards copyholds, if it can be shown that the property has been held under the descriptions thereof on the court rolls, mere vagueness in such description will be unimportant (u).

Mixed Freeholds and Copyholds.-Upon a sale of lands of different tenures, or copyholds held of

(r) Robinson v. Musgrove (1838), 2 Moo. & R. 92.

(8) Flower v. Hartopp (1843), 6 Beav. 476.

(t) Curling v. Austin (1862), 2 Dr. & Sm. 129.

(u) Long v. Collier (1828), 4 Russ. 267.