called at his office about the ring. That he then charged

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her with having, when previously offering to redeem the Judgment. ring, concealed the fact of such sale and with having got RICHARDS,J. the money from that source to redeem the ring, which charge defendant did not deny. The plaintiff at this interview apparently again refused to take payment of the $105 note and give up the ring.

Rule 813, sub-section (c), requires that the affidavit on which an order for attachment is granted shall, where the case comes under Rule 811, sub-section (c), state that the deponent has reason to believe that the debtor. has assigned, transferred, disposed of or secreted, or is about to assign, transfer, dispose of or secrete his real estate . . or his personal property. "with intent to delay, defeat or defraud his creditors" "(with such facts and circumstances as form the ground of such belief.)"

It seems to me after hearing argument that, so far as the disposal of the real estate is concerned, no ground was shown in the affidavit of 8th May for belief in defendant's intent to defraud. The plaintiff's statement in effect is merely that he had been told that defendant had disposed of her real estate. That bare fact raises no inference of fraud. The statements in that affidavit of 8th May as to personalty amount only to this, that defendant offered to sell to an auctioneer the equity of redemption in her furniture and stated her intention to leave the province. On careful reconsideration I do not think that these facts. in themselves were sufficient ground from which to infer fraudulent intent. In view of the circumstances stated in plaintiff's affidavit of 6th June, the statements above referred to were misleading. They seem to me to imply that defendant was, of her own motion and without pressure of any kind, endeavoring to sell, and I think I must have so understood them when I granted the order. It now appears, however, from defendant's affidavit, that the

1901. offer to sell was caused by the seizure under the chattel Judgment. mortgage, and from plaintiff's affidavit of 6th June that RICHARDS, J. Such seizure was the result of plaintiff's own action. An

offer to sell under such circumstances can hardly in itself

be such evidence of intent to defraud as should be used by the plaintiff to procure an attachment.

The statements made in plaintiff's affidavit of 6th June should have been made in the affidavits on which the

order was got. They now disclose facts and circumstances on which possibly plaintiff's belief of intent on defendant's part to defraud was properly grounded. But the Act requires that such facts and circumstances shall be stated in the affidavits on which the order is got, and they were not so stated in this case, though within plaintiff's knowledge when he made his affidavit of 8th May.

Two other facts were also omitted from that affidavit which, though not bearing on the question of intent to defraud, were important in view of this being an application for an extraordinary remedy. I refer to the holding of the ring as security, or part security, and to plaintiff's refusal to accept payment of the $105 note and give up the ring. There seems to be a dispute as to whether the ring was held for the whole or part of the debt. It was apparently not a sufficient security for half of the debt. Still the fact of holding it should have been stated, in my opinion.

The omission from the affidavit of 8th May of the facts disclosed in that of 6th June was apparently the result of inadvertence only. There could be no object in their suppression. Stating the grounds now shown for belief in the fraudulent intent would have strengthened the application much more than the facts as to the ring, and the not taking ayment of the $105 note, would have weakened it. But both should have been stated—the former because the statute expressly requires them and both because of the necessity that, on an application for so extraordinary and

1901.

drastic a remedy, the fullest disclosure should have been made. It is essential that a Judge should, on such ap- Judgment. plications, have both sides of the case, and everything ma- RICHARDS,J. terially relating to it, put as fully as possible before him. To hold otherwise would in many cases lead to serious trouble.

The rule where an injunction is granted ex parte is that, where a material fact is suppressed or omitted, either intentionally or by mistake, the injunction will be dissolved on application of the party enjoined, even though the other party would have been entitled to the injunction on a full statement of the facts. On principle that rule should be at least equally applicable to a case like this.

If full disclosure of all the facts had been made on the application for the order, I would not now set that order aside on the evidence as to the merits produced by defendant on this application. But I think that, for the reasons given above, the new evidence produced by plaintiff should not be considered with the view of strengthening plaintiff's case, and that the order itself should be set aside.

There will be an order vacating the order for attachment.

Owing to defendant's delay in moving, there will be no costs of this application to either party.

[Plaintiffs appealed to the Full Court and the appeal was dismissed with costs.-Ed.]

1901.

Statement.

SWORD V. TEDDER.

Before BAIN, J.

Contract of sale-Construction of covenants-Whether dependent or independent.

The plaintiff's claim was for payment of the balance of the purchase money of land under an agreement of sale in the usual form in which the purchaser covenanted that he would well and truly pay. . . . the said sum of money together with the interest thereon on the days and times mentioned, and the vendor covenanted that in consideration of the purchaser's covenant and on payment, etc., he would convey and assure or cause to be conveyed and assured to the purchaser, his heirs and assigns, by a good and sufficient deed in fee simple, etc., the said piece or parcel of land freed and discharged from all incumbrances.

Held, following Macarthur v. Leckie, (1893) 9 M. R. 110, that the two covenants were independent and that the defendant was bound to pay the purchase money before he could call on the plaintiff to convey the property, and that it was not necessary for the plaintiff to prove the tender of a conveyance or to allege that he was ready and willing to convey, although it appeared that the property was subject to two mortgages.

With the plaintiff's consent, the defendant's purchase money was ordered to be paid into Court so that the incumbrances could be discharged out of it and only the balance paid to the plaintiff.

ARGUED: 1st October, 1901.

DECIDED: 17th October, 1901.

PLAINTIFF sued to recover the unpaid purchase money under an agreement for the sale of land. Plaintiff had sold a house and lot to a Mrs. Green, who re-sold it to Tedder. Mrs. Green expected she would make out a good title to the property through the plaintiff, but she experienced delay in doing so, owing to an incumbrance on the property, which became the subject of litigation. Tedder, after occupying the property for six months, gave plain-` tiff notice he would rescind the contract on account of the delay which had occurred in perfecting the title and he gave up possession of the house. Mrs. Green assigned to

1901.

the plaintiff all her rights under her agreement with Tedder, and the plaintiff then brought this action to recover Argument. the amount of the unpaid purchase money, claiming Tedder had no right to rescind.

H. M. Howell, K. C., and G. R. Coldwell, K. C., for plaintiff. There was no proof of any defective title. The property was subject to a mortgage, but that was no legal excuse: Guthrie v. Clark, 3 M. R. 320. The covenant was for a conveyance free from incumbrances: Townsend v. Champernown, 1 Y. & J. 449. But, on the pleadings, there is no defence that the property is incumbered: Armsirong v. Auger, 21 O. R. 101; Macarthur v. Leckie, 9 M. R. 110. Defendant has never demanded an abstract or taken any steps to verify the title. As to the construction of the agreement, there was a covenant to pay and after payment defendant is to be entitled to a deed. He might have demanded a title, and if plaintiff showed that he had no title he might have rescinded. The only defence actually raised is that defendant rescinded and had a right to rescind. He had no right to rescind because it is not shown that plaintiff had no title. Defendant entered into possession voluntarily and so cannot question plaintiff's title: Patterson v. Robb, 6 P. R. 114; Armstrong v. Nason, 25 S. C. R. 263; Currie v. Rapid City Farmers' Elevator Co., 12 M. R. 105. Defendant never tendered the money; he remained in possession and went on negotiating. He served notice of rescission on 19th December. He was not there as a trespasser, and the contract was continuing. Plaintiff was not in default when the notice was served. The words are "Unless the contract be not completed." Defendant gave notice when he was in possession. Then, on December 17th, he was notified a deed was ready. As long as defendant was in possession the contract was not rescinded; he was in possession till December 28th and the contract was in force till then, and on December 27th he received notice that plaintiff