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Pinnington v. Galland (a) which determined the particular line of way in that case, but it certainly is not there expressed as the reason of the decision. But we find no case inconsistent with the rule, which seems to us founded on principle and convenient.

We therefore think we must consider the rights of the parties the same as if the implied devise of a way of necessity to Abraham Pearson had been an express devise of that necessary way which at the time was actually used with the premises. If this be a correct view of the case the ninth plea is proved, and the eighth and other issues are properly found for the plaintiff. The rule, therefore, will be absolute to enter the verdict for the defendant on the ninth plea only.

This is the judgment of my brother Wightman and myself. My brother Crompton, who did not hear the whole argument, authorizes me to say that, so far as he heard the case, he entertained the same opinion.

Rule absolute to enter a verdict for the defendant on the ninth plea.

(a) 9 Exch. 1.

SIKES against WILD and others.

Real estate had been devised to the defendant in trust to sell, who put a part of it up for sale, which the plaintiff agreed to buy, and was accepted as the purchaser. The defendant was aware that he could not make a title free from incumbrance, as by a marriage settlement the land was vested in trustees to secure an annuity to the widow of the devisor, but he had obtained from her a parol promise that in the event of the sale she would transfer her security to another property. After the sale the widow refused to assent to this, and the bargain went off in consequence. In an action by the plaintiff against the defendant for not completing the bargain, the jury found that the defendant bonà fide believed that he would be able to make to the purchaser a good title free from incumbrance, and that he had reasonable grounds for so believing:

1. Held, that the plaintiff, although entitled to recover his deposit and the expences of investigating the title, was not entitled to recover damages for the loss of his bargain: per Wightman and Blackburn JJ., dissentiente Cockburn C. J.

2. Concessum, on the authority of Pounsett v. Fuller, 17 C. B. 660, that the expences attendant on an attempt which was made, after the bargain was off, to enter into a fresh arrangement could not be recovered.

THE first count of the declaration alleged that the

defendants put up for sale certain land as unincumbered, on the faith of which the plaintiff bid for it, and was declared the purchaser, and paid a deposit; but it was afterwards found to be incumbered with an annuity, whereby a good title could not be made, and the sale and purchase could not be completed, &c.

The second count was to the same effect, alleging that the defendants fraudulently and deceitfully stated and pretended the land to be unincumbered.

To the first count the defendants pleaded payment of 1507. into Court, and to the second Not guilty.

The plaintiff replied that the sum paid into Court was not sufficient; and took issue on the other plea.

On the trial, before Cockburn C. J., at the Leicestershire Spring Assizes in 1861, it appeared that the land in question consisted of a farm, which was part of an 2 R B. & S.



July 9th.

Abortive sale
of real estate.





estate that had been devised to the defendants in trust
to sell as soon as they conveniently could. The solicitor
employed in the affairs of the trust was aware that the
devisor held the estate subject to a settlement, by which
the legal estate was in trustees for the purpose of secu-
ring a life annuity to the widow of the devisor, and he
knew that no title, free of incumbrances, could be made
to any part of the estate, unless that lady and her trus-
tees agreed to discharge the part sold from the trust to
secure the annuity. He had represented to the lady
that it would be for the benefit of the family that the
farm in question should be sold, and that it would not
be disadvantageous to herself if, in case of a sale, she
would consent to transfer her security to another pro-
perty, whilst it would benefit the estate. She was
satisfied that this was so, and verbally expressed her
concurrence. After this the farm was put up for sale,
and the plaintiff agreed to buy it, and was accepted as
the purchaser. The solicitor also knew that the lady
was not legally or equitably bound by her parol consent,
and consequently that the power of the defendants to
make a good title to the farm, free of incumbrances, was
precarious, in so far as it depended on her continuing
in the same mind. Such proved not to be the case: for
she was persuaded by other friends of the family to
refuse her assent, and the bargain went off; and a
subsequent attempt to make a fresh arrangement proved
abortive. It was agreed that the costs incurred in the
investigation of the title should be referred for taxation.

The Lord Chief Justice left it to the jury to say: 1. If the defendants bonâ fide believed that they would be able to make to the purchaser a good title, free from incumbrance; 2. If they had reasonable grounds for

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so believing both which questions the jury answered in the affirmative. He also left it to them to assess the damages generally, which they did; and a verdict was entered for the plaintiff for the amount, with leave reserved to the defendants to move to reduce the damages, or enter a verdict for the defendants if, after the taxation, the money paid into Court proved sufficient to cover the expences of investigating the title and the deposit, unless the plaintiff, under the peculiar circumstances, was entitled to general damages.

On the taxation, the amount paid into Court proved to be sufficient to cover all the expences, except some attendant on the abortive attempt to make a fresh arrangement after the bargain was off.

Macaulay, in the following Term, obtained a rule to enter a verdict for the defendants on the grounds: 1. That the plaintiff was not entitled to damages as and for the loss of a saleable bargain, the jury having found that the defendants acted bonâ fide and had reasonable grounds to suppose they could make a good title. 2. That the amount paid into Court equalled or exceeded the amount of the deposit money, and such portion of the charges of the plaintiff's solicitor as were recoverable in the present action.

At the present Sittings, on the 13th June; before Cockburn C. J., Wightman and Blackburn JJ.

Mellor and Field shewed cause, and Hayes Serjt. and Bristowe were heard in support of the rule.

The arguments on both sides fully appear in the judgments of the Judges: it will be sufficient to add that the following authorities were referred to by the bar or









the bench during the argument; Flureau v. Thornhill (a); Johnson v. Johnson (b); Bratt v. Ellis (c); Jones v. Dyke (d); Hopkins v. Grazebrook (e); Walker v. Moore (f); Robinson v. Harman (g); Pounsett v. Fuller (h); Hadley v. Baxendale (i); Cornfoot v. Fowke (k); Sugden's Vend. and Purch., p. 301, 13th ed.

Cur, adv. vult.

BLACKBURN J., sitting alone, now stated that the Judges, differing in opinion, had prepared separate judgments, which he should read. He accordingly read the following judgments.

BLACKBURN J. In this case the plaintiff purchased from the defendants a farm; the defendants proved unable to make a good title. The plaintiff brought this action against them for not doing so. The defendants paid money into Court: and the question is, on what principle the damages should be estimated. (After fully stating the facts his Lordship proceeded.)

It was properly admitted on the argument that the case of Pounsett v. Fuller (h) conclusively decided that the expenses attendant on the attempt to make a fresh arrangement after the bargain was off could not be claimed. The question, therefore, which was argued before us was whether, under the circumstances, the plaintiff could claim damages for the loss of his bargain. I am of opinion that there is nothing in this case to take it out

(a) 2 W. Bl. 1078.

(b) 3 B. & P. 162.

(c) Sugd. V. & P. App. 7: i. e. the 11th and some other editions.
(d) Id. 8.

(f) 10 B. & C. 416.

(h) 17 C. B. 660.

(k) 6 M. & W. 358.

(e) 6 B. & C. 31.

(g) 1 Exch. 850.
(i) 9 Exch, 341.

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