vendor can only make a nie to portion of the property. 3. Viere he has not ne nterest or power of disposition wer hat hien ne pretenued to seil.

1. Viere he rroperty as been misdescribed as to extent.] Where he rantity of creage has been unintentionally, very slightly, misrepresented a court of equity has conaderea proper spleet for compensation, and has fecreed peeine performance accordingiy, as well at the gut of a vendor is of a purchaser. Where the difficulty has risen ʼn ases of is description is, when the description has been maiined the terms more or less." or, as containing by estimation so many acres.” In Winch v. Winchester Ta. $75, trose terms were held sufficient to cover a deficiency of ive out of bry-one acres: but in mother case, where the deficiency was as much as 100 out of 349 acres, those terms were considered insuficient: (Portman v. Mil. 2 Rass. 370.) And again, in Geil v. Witam (Sug. 12, similar expressions were not allowed to cover a deficiency of two acres in two closes stated to be wearing na mecies siun Sa. 48. 4P. And it seems that the malitication will in no case protect a vendor who, aware of the exact quantity, makes a fraudulent misstatement. by exaggerating its extent: (Duke of Norfolk v. Worthey, 1 Camp. N. P. C. 337; Portman v. Mills, suprà; Leslie v. Thompson, 17 L. T. Rep. 277.)

2. Where a vendor can only make a title to a portion of the property-If a vendor is unable to make a good title to the whole of the property contracted for, he will, generally speaking, be entitled to claim specific performance as to such portion as he can confer a good title to, and making a proportionate deduction out of the purchase money for the remaining portion of the property. But if the portion to which no title can be made was the principal object of the purchase, a vendor would not be compelled to complete his contract relating to that part to which a title can be made, and which, without the residue of the property, would be of little or no service to him. In equity, the rule is that where an estate is sold in lots, and the vendor cannot make a title to the whole of the lots sold, if the lots are complicated together, so that the possession of each is essential to the enjoyment of the whole (Dykes v. Blake, 4 Bing. N. C. 463), the purchaser will be released from his contract; but otherwise he will be compelled to accept the lots to which a title can be made, with a compensation, pro tanto, for the rest: (Poole v.

Shergold, 2 Bro. C. C. 118; Lewin v. Guest, 1 Russ. 325.) The question is, "whether the part to which a title can be made is material to the possession and enjoyment of the rest of the estate: (M'Queen v. Farquar, 11 Ves. 467.)

3. Where he has not the interest he pretended to sell.]—We have already noticed that a vendor, who has contracted to sell a fee, cannot compel a purchaser to accept a term of years, or any other estate or interest he may possess in the property, or have the power of disposition over; but where the contract is for the sale of a term of years which the vendor has in the premises, although the vendor may not be entitled for the whole number of years mentioned in the contract, still, if the deficiency is not great, he will be entitled to a specific performance upon making a proportionate reduction in the amount of the purchase money. But if the term is considerably shorter than was contracted for, a court of equity would not only refuse its aid to a vendor, but would assist a purchaser to recover back any deposit he may have paid him: (Long v. Fletcher, 2 Eq. Cas. Abr. 5, pt. 4; Hibbert v. Shee, 1 Camp. N. P. C. 113.) Nor will a vendor be entitled to enforce specific performance where he has wilfully misrepresented the duration of interest, although such interest, from its very nature, must be an uncertain one; as in the case of property held upon a lease determinable upon lives, where a vendor represents the lives as being in health, when perfectly aware that such is not the fact: (Breadley v. Collins, You. 317; Turner v. Harvey, Jac. 169.)

VII. OF THE EVIDENCE A PURCHASER IN ENTITLED TO REQUIRE IN VERIFICATION OF THE ABSTRACT.

Rules of evidence adopted by conveyancers.]—The rules of evidence that have been adopted by conveyancers in the investigation of titles differ materially from those laid down by courts of law, the latter requiring the best possible proof to be given, and in so minute a manner as to raise a conviction little short of actual observation of the fact to be established; whereas, conveyancers are, in most instances, satisfied to rely upon such proof as affords reasonable belief that the requisite evidence exists, and can be procured when wanted: (Cov. Ev. 3.) Hence, in a court of law, whenever a question relating to lands arises upon a will, the will itself must be produced; but conveyancers require no more than the production of the probate. A court of law

requires the testimony of the attesting witness to prove a deed, which conveyancers never insist upon, unless there is reason to doubt the genuineness of the witness's signature, and even then it would be incumbent on the purchaser to show reasonable grounds for doubting the truth of the attestation: (Ib.)

When conveyancers require stricter proof than is considered necessary in a court of law.]-But if conveyancers relax the strict rules of evidence with respect to the proof and authenticity of documents, they require, in some instances, stricter proof of matters of fact than is considered necessary in courts of law. Hence, where a party has gone abroad, and has not been heard of for a period of seven years, the presumption of a court of law is that he is dead (Stat. 19, Car. 2, c. 6; Hillary v. Waller, 2 Ves. 261), yet a presumption of this kind is never admitted by conveyancers in matters of title; for to do this would be acting in direct opposition to the Statute of Limitations, 3 & 4 Will. 4, c. 27, s. 17, which expressly secures the rights of persons beyond the seas.

As to the presumption of death without issue.]—Courts of law have also gone much further with respect to the presumption of the death of parties without issue, or in presuming the failure of issue, than has ever been allowed by conveyancers. Thus, in the case of Doe v. Griffin (15 East, 293), proof by an elderly person that a member of her family went to the West Indies many years ago, and according to the repute of the family died there, and that she never heard of his being married, was considered by a court of law as primâ facie evidence that the party had died without lawful issue. But it is quite clear, that no conveyancer ought to rest satisfied with such slender evidence, nor could any purchaser be expected to accept a title from a remainder man or next heir in tail upon such a negative presumption of the determination of the prior estate.

Proof of the execution of deeds.]—In the case of the proof of the execution and attestation of deeds, if such instruments have the names of the parties placed to the seals, and the names of the witnesses to the clauses of attestation, it will be treated as satisfactory proof that the signatures subscribed and indorsed are the genuine production of the parties whose names they import: (Cov. Ev. 11; Talbot v. Hodson, 7 Taunt, 251.) And where a deed has its seals

cut off, evidence may be given that it was originally sealed: (Bolton v. The Bishop of Carlisle, 2 H. Bl. 259.)

Proof of the execution of powers.] - Where the terms of a power of appointment require that it shall be executed in the presence of a certain number of witnesses, if the deed of appointment appears to have been executed accordingly, no further evidence is usually called for in order to prove that the donee duly complied with the terms of the power; neither, where such appointment is directed to be made in the presence of credible witnesses, is it the practice to require any evidence of their credibility: (Cov. Ev. 22.)

Instruments themselves must be produced.]-The instruments themselves must be produced, if in existence; but if lost or destroyed, then, if the vendor can deliver over copies which would be evidence at law, and prove that the originals were duly executed and delivered, it will be a sufficient verification of the abstract; but unless a vendor can prove both the latter facts, he will be unable to show a good title, and the purchaser may annul the contract: (Bryant v. Busk, 4 Russ. 4) Every vendor is necessarily bound to furnish the purchaser with the means of asserting his title and defending his possession. The title deeds are the ordinary and primary means for that purpose. If the primary means do not exist, there may be secondary means to the same end. Assuming the abstracts duly and fully prove the contents of the deed, it yet remains to be proved that the deeds were duly executed and delivered; and the vendor must furnish the purchaser with such proof; and unless such proof can be furnished, the purchaser is entitled to be discharged: (Southby v. Hutt, 2 Myl. & Cr. 207; Doe v. Brydges, 2 Sco. N. R. 339.)

Power of attorney must be produced when instrument has ren executed by.]—Whenever a deed has been executed by attorney, the power of attorney must be produced, and proof also must be given that the principal was living at the time such power was executed.

Examined copies of enrolled deeds how far evidence.]— Where deeds are by law required to be enrolled, examined copies are sufficient evidence of the originals; but where enrolment is not compulsory, a copy is evidence against the parties on whose acknowledgment the enrolment

was made and their representatives, and the non-production of the deed must be accounted for in the same way as if no such enrolment had taken place; but with an exception so far as lands holden under the Duchy of Cornwall are concerned, as the statute 7 & 8 Vict. c. 65, enacts that the enrolment, or an examined copy of any deed executed under the provisions of the acts relating to the Duchy of Cornwall, shall be sufficient proof of the contents and due execution of the original, although its non-production is not accounted for: (sect. 34.)

Copies of memorial of registered deed, how far evidence.] -An examined copy of the memorial of a deed registered in a register court is secondary evidence of the deed as against the parties to it and persons claiming under them (Wollaston v. Hakewell, 3 Man. & Gr. 267); but not, it seems, as against strangers: (Doe v. Clifford, sup. ; Collins v. Maule, 8 Car. & P. 502.)

Where deeds have been destroyed, parties may be made to concur in subsequent conveyances.]· Where deeds which have been recently executed have been destroyed by fire, or other accident, and the parties are still living, the evil may be in great measure remedied by the parties to such deed concurring in the conveyance to the intended purchaser; and this a vendor who was a party to the destroyed deed may be compelled to do, or to execute a new conveyance to the party claiming under it, in case the latter still continues to retain possession of the property: (Bennett v. Ingoldsby, Finch. 262.)

Recitals, how far evidence.]—The recital of a deed is evidence of its existence operating by way of estoppel as against all parties executing the deed containing the recital, and those claiming under them, but is no evidence of its contents or effect, beyond what its name and nature necessarily imply, unless proof be given of its loss or destruction.

Loss of mesne assignments may be made good by recitals.] -In the case of leaseholds, the loss of deeds of mesne assignments may be made good by the recitals of them and in any renewed ecclesiastical lease granted since the 21st June, 1836 (unless in pursuance of a covenant or agreement entered into before the 1st of March, 1836), the recital