between vendor and purchaser, any of the title deeds or other documents should turn out to be improperly stamped, the vendor is bound to get the proper stamps affixed to them at his own expense. Responsibility of solicitors who allow instruments to be improperly stamped.]-But if any deeds are improperly stamped through the default or negligence of a solicitor, then the latter will be bound to make good the loss to his client; and it seems that, whenever improper stamps have been affixed to an instrument through such default or negligence on the part of a solicitor, the latter will be bound to make good all loss incurred by the party prejudiced thereby: (Guilliam v. Barrett, 2 Smith, 156.) Still, it seems that the solicitor might avail himself of the Statute of Limitations, in defence to a claim of this nature, where the act of negligence complained of has been incurred for six years or upwards, and which will begin to run from the time of the act committed, without reference to that when the mistake or defect was discovered or the penalties paid. Nor, it seems, will the court, where an action of this kind is brought against an attorney or solicitor by his client, exercise a summary jurisdiction on its officer by restraining him from pleading the Statute of Limitations in defence to such action: (Re J. H. Tristan, 15 L. T. Rep. 70.) CHAPTER VI. REMEDIES FOR BREACH OF CONTRACT. I. OF THE VARIOUS REMEDIES FOR BREACH OF CONTRACT. II. OF THE VENDOR'S REMEDIES IN THE COURTS OF COMMON LAW. 1. Assumpsit for the purchase money. 2. Action for use and occupation. 3. Action for slander of title. 4. Proceedings under the Common Law Procedure Act. III. OF THE PURCHASER'S REMEDIES IN THE COURTS OF COMMON LAW. IV. REMEDIES IN EQUITY. 1. Of the various remedies to be obtained in equity. 2. Proceedings by bill. 3. Proceedings by claim under the new orders. I. OF THE VARIOUS REMEDIES FOR BREACH OF CONTRACT. Ir the vendor or the purchaser fails or refuses to perform his part of the contract, the other party has a remedy against the defaulter, either by an action at law for damages, or in a court of equity for a specific performance; but no redress could, until recently, have been obtained in a court of law beyond damages for the non-performance, giving, in fact, the defaulting party an option either to pay damages, or perform the contract. In the latter respect, however, great alterations have been recently effected by the Common Law Procedure Act (17 & 18 Vict. c. 125), by which it is enacted that the plaintiff in any action in any of the superior courts, except replevin and ejectment, may obtain a peremp tory mandamus, commanding the defendant to fulfil the contract, which will be granted, as well when the contract relates to real, as to personal property: (ib. sect. 68.) In addition to which, he may also obtain an injunction against the repetition or continuance of such breach of contract, and also in the same action include a claim for damages or other redress. Vendor's remedies at law.]-A vendor's legal remedies are: By action of assumpsit for the purchase money; and where a certain sum is stipulated to be paid by way of liquidated damages, he may recover such stipulated amount in an action of debt; and if, as sometimes happens, the contract for purchase is under seal, then an action of covenant will be his proper remedy. The latter form of action he may bring against either the real or personal representatives of the purchaser, in case of the death of the latter pending the contract; but if the agreement be merely under hand, his remedy is confined to the personal representatives only. A vendor may also maintain an action for use and occupation against a purchaser who has been let into possession of the premises, who retains such possession after the contract goes off, without any default on the vendor's part; but only from the time when such contract was determined (Howard v. Shaw, 8 Mees. & W. 118), but not for any previous occupation: (Kirtland v. Pounsett, 2 Taunt. 145.) And in addition to the above-mentioned remedies, by stat. 17 & 18 Vict. c. 125, the vendor may, as we have just before mentioned, by means of a writ of mandamus, procure a specific performance of the contract. And if a vendor has been prevented from selling his property, on account of his title having been slandered, he may bring his action on the case against the slanderer for consequential damages. Vendor's right of action not affected by stipulation that deposit shall be forfeited by breach of contract.] — The vendor's right of action will not be taken away by a stipulation that if the purchaser shall fail to comply with the conditions, his deposit shall be forfeited as liquidated damages: (Iceley v. Grew, 6 Nev. & Man. 467.) Vendor cannot maintain ejectment without notice.]--Where a purchaser has been let into possession by the vendor, the latter cannot, in the absence of an agreement to quit in some specified event, which has happened, bring ejectment against the purchaser without previous notice: (Doe v. Seyer, 3 Camp. N. P. C. 8; Right v. Beard, 13 East, 210.) Purchaser's remedies at law.]—The legal remedies of a purchaser are by special action on the contract; for money had and received to recover the deposit; assumpsit on debt, where the parties bind themselves to pay liquidated damages or moneys by way of penalty in default of fulfilling the contract, as also an action of covenant if the agreement is under seal. And in like manner with a vendor, he is entitled to a peremptory mandamus to enforce the contract in specie under the Common Law Procedure Act, 17 & 18 Vict. c. 123. Added to which remedies, a purchaser may also maintain an action on the case, in the nature of deceit, where vendor has made any fraudulent misrepresentation or concealment, by which the former has been deceived as to the true nature of the property. II. OF THE VENDOR'S REMEDIES IN THE COURTS OF COMMON LAW. 1. Assumpsit for the purchase money. 2. Action for use and occupation. 3. Action for slander of title. 4. Proceedings under the Common Law Procedure Act. 1. Assumpsit for the Purchase Money. Requisites to support the action.]-If the vendor brings an action of assumpsit against the purchaser for the recovery of the purchase money, he must prove a valid agreement within the Statute of Frauds, and duly stamped as such, otherwise it cannot be admitted in evidence, nor can any secondary evidence be received of its contents; unless, indeed, the instrument happens to be in the hands of the opposite party, who, upon notice, refuses to produce it, in which case evidence of the latter description may be received: (Garnons v. Swift, 1 Taunt. 507.) If the only executed copy of the agreement is in the hands of the defendant (Blakey v. Porter, 1 Taunt. 386), or of a third party (Gigner v. Bailey) either party can as of course procure an order before trial for its previous production, for the purpose of its inspection, and its being stamped, if the latter be not already done. But where two original copies are retained, one by each party, the party who loses his copy cannot at law compel the other party to produce his copy at the trial, for the purpose of inspection: (Streetv. Brown, 6 Taunt. 302.) The vendor must also prove the performance of all conditions precedent on his part, or a tender so to do, and a refusal on the part of the defendant (Jones v. Barclay, Doug. 684); the defendant's default; and that the plaintiff has a good title to the property contracted for. What acts of plaintiff will be considered as equivalent to performance.]-But notwithstanding the general rule that a plaintiff, in order to support this action, must prove a performance of all conditions precedent, still, where the defendant himself prevents such performance, then what the law considers a performance will suffice; as, if a vendor tenders a conveyance, and a purchaser refuses to receive it; for a tender and refusal is deemed equal to a performance, but a tender without refusal is not so considered; both the tender and refusal must therefore be averred in the declaration, and proved at the trial: (Jones v. Berkeley, supra; Wilmot v. Wilkinson, 6 B. & C. 506.) Plaintiff must show a good title.]—The plaintiff must also show that he has a good title to the property. It is not sufficient for him to allege that he has been always ready and willing, and frequently offered to make a good title on payment of the purchase-money (Phillips v. Fielding, supra), he must aver that he actually made a good title, or a tender and refusal, and he ought to show what title he has: (ib.) But where the plaintiff alleged, in his declaration, that he was seised in fee of the lands in question, and that the defendant agreed to purchase on having a good title, and then averred that the title to the land was made good, perfect, and satisfactory to the defendant, it was holden that it was not necessary for the plaintiff to set forth in the declaration all the particulars of his title, and that the averments in the present case were sufficient to enable the plaintiff to call upon the defendant for the execution of his part of the agreement: (Martin v. Smith, 6 East, 555.) Evidence of title.]-Where the plaintiff produces his title deeds in support of his title, it does not appear to be satisfactorily determined whether the fact of the execution should be proved by the subscribing witnesses: (Thompson v. Miles, i Esp. Ñ. P. C. 185; Crosby v. Percy, 1 Camp. N. P. C. 304.) It seems, however, to be settled that, if the purchaser has not made an application for the title before the commencement of the action, he will not be allowed to set up a want of title in the plaintiff, although the plaintiff could not have conferred it till after the action brought, it having been solemnly adjudged that, if a party sells an estate without having a title, but before he is called upon [P. c.] 2 c |