and in case of disobedience, such writ of injunction may be enforced by attachment by the court, or, when the court shall not be sitting, by a judge: (id. s. 81.)

Application for the writ after action commenced.]—It shall be lawful for the plaintiff, at any time after the commencement of the action, and whether before or after judgment, to apply ex parte to the court or a judge for a writ of injunction to restrain the defendant in such action from the repetition or continuance of the wrongful act or breach of contract complained of, or the committal of any breach of contract of a like kind arising out of the same contract, or relating to the same property or right, and such writ may be granted or denied by the court or judge, upon such terms as to the duration of the writ, keeping an account, giving security, or otherwise, as to such court or judge shall seem reasonable and just; and in case of disobedience, such writ may be enforced by attachment by the court, or when such court shall not be sitting, by a judge; provided always, that an order for a writ of injunction made by a judge, or any writ issued by virtue thereof, may be discharged or varied, or set aside by the court on application made thereto by any party dissatisfied with such order: (id. s. 82.)

III. OF THE PURCHASER'S REMEDIES IN COURTS OF COMMON LAW.

Special action on the case.]-To maintain this action, the plaintiff must prove the performance on his part of all conditions precedent, and the refusal or incapacity of the defendant to fulfil the contract.

Evidence.]-The contract must be proved in the manner we have already mentioned (ante, p. 289), and must also prove the performance of all conditions precedent on the part of the plaintiff; consequently, as it is the duty of the purchaser to prepare and tender the conveyance to the vendor for execution, he cannot maintain this action without proving that he has either done this, or that his doing so would have been merely nugatory; as, where a vendor has incapacitated himself from completing the contract by conveying the property to some other party (Knight v. Crockford, 1 Esp. N. P. C. 190), or is unable to make a marketable title to it (Roper v. Coombes, 6 B. & C. 534), in either of which cases it would not only have been unnecessary, but even improper, to have made such tender: (Hodges v. Lord Lichfield, 1 Bing. N. C. 492; Jarman v. Eggleston, 5 Car. & Pay. 172.)

No defence to action that purchaser was not ready with his purchase money.]-Where the vendor is unable to make a good title by the day appointed, it will be no ground of defence on his part that the purchaser was not at that time prepared to pay the purchase money (Clark v. King, 1 Ry. & Moo. 394), for the vendor must be prepared to make out a good title on the day when the purchase is to be completed; and if he fails to do so, the purchaser will thereupon be entitled to vacate the agreement, and to bring his action for the breach. Still, to maintain this or any other action for such breach of contract, he must disaffirm the agreement ab initio et in toto, for if he takes possession under it he will be treated as having adopted it, and cannot afterwards disaffirm it by quitting the premises.

What will be considered a bad title.]-To support this action on account of a defective title in the vendor, he must prove the title to be actually bad, for the mere opinion of conveyancers to that effect will be insufficient: (Camfield v. Gilbert, 4 Esp. N. P. C. 140.) A contract to make a good title means a good title both at law and in equity, and therefore the court will inquire collaterally whether the title be good in equity: (Maberly v. Robins, 5 Taunt. 625.) Still, what is the meaning of a good title, notwithstanding the oft-repeated decisions, is a question that is by no means clearly settled; for in a late case (Jeakes v. White, 18 L. T. Rep. 49), we find the Court of Exchequer equally divided upon it, although three of the judges adhered to this definition of it, viz., "that where a question arises between vendor and vendee, or persons who are agreeing together in any way to form that relation between themselves, the meaning of a good title, a sufficient title, is this—such a title as the Court of Chancery would adopt as sufficient ground for compelling a specific performance; and where a person stipulates to have a good title, he does not mean merely that sort of title which would be good as against a stranger, nothing else appearing to justify a verdict in an action of ejectment, but such a title as would enable him to hold against all persons who probably might come to claim a right to it.

Plaintiff cannot, at trial, insist upon objections which he neglected to make when he rescinded contract.]—A plaintiff cannot, at the trial, insist upon any objection to the title appearing on the abstract which he neglected to take at the time of rescinding the contract, and which might possibly

have been removed by the vendor if taken before: (Todd v. Hoggart, 1 M. & M. 128.) The plaintiff must also give a particular of all objections to the abstract arising upon matter of fact (Collett v. Thompson, 3 Bos. & Pull. 246), but he will not be obliged to give a particular of all the objections in point of law arising upon the abstract: (ib.) And even if the particulars are not given, this will not prevent the plaintiff from proving any infraction or breach of the conditions of sale which may entitle him to annul the contract: (Squire v. Tod, 1 Camp. N. P. C. 292.)

No distinction recognised in an action at law between matters of title and matters of conveyance.]—In an action for breach of contract for not making a good title, a court of law will not recognise a distinction between a matter of title and a matter of conveyance. If, therefore, a mortgage be not cleared off at the time at which a title in fee is agreed to be made, it will be treated as a breach of covenant to deduce a good title in fee on that day: (Hanslip v. Padwick, 16 L. T. Rep. 416.)

What persons must bring the action where purchaser dies after breach of contract.]-In case of the purchaser's death after a cause of action has arisen on account of the breach of contract, his personal representatives, and not the heir, are the proper parties to maintain this action, for it arises on a personal contract, the breach of which causes a loss to the personal estate: (Orme v. Broughton, 10 Bing. 533; S. C., 4 Moore & Sc. 417.)

Damages.]-In this form of action the plaintiff may recover against the vendor the expenses of investigating the title, including the charges for searches for judgments, and for comparing the abstract with the documents of title therein referred to (Hanslip v. Padwick, 16 L. T. Rep. 416), and also interest on his purchase money, if he can show it has been lying dead and unproductive. But in order to enable him to recover special damages for the costs of investigating the title, &c., he must lay them as such (Richards v. Barton, 1 Esp. N. P. C. 268); for it has been held that he cannot recover them under a count for money had and received (Frühling v. Schroeder, 2 Bing. 77); neither, it seems, can he recover them under a count for money paid to the defendant's use. Nor can a purchaser recover damages for any expenses incurred previously to entering into the contract; or for surveying an estate before he knows the

title; or the costs of a conveyance drawn by anticipation; nor the extra costs of a suit for a specific performance brought by the vendor.) Nor unless under special circumstances, will he be allowed to recover any loss he may have sustained by selling out of the funds (Flureau v. Thornhill, supra), or money laid out in repairs or improvements (Worthington v. Warrington, 18 L. J. (N. S.) 350, C. P.), or the difference between party and party, and his costs as between solicitor and client in an unsuccessful suit by a vendor for specific performance, or the costs in a suit by himself (the purchaser) for a specific performance when the bill is dismissed without costs on the Master reporting against the title: (Malden v. Fyson, 11 Q. B. 292.) Neither will he be entitled to recover any compensation for the fancied goodness of his bargain, where the vendor, without any fraud on his part, is unable to confer a good title to the property: (Walker v. Moore, 10 B. & C. 416.) But if there be actual mala fides on the part of the vendor, as if he sell the estate under the knowledge that he is not in a position to insure a title, it may be different; as, for example, where A., having a mere agreement for the purchase of an estate, sold it to B., who resold it to C., and then the whole matter went off through a want of title in the original vendor, it was held that B.'s claim was not to be restricted to nominal damages; still it does not appear upon what principle the damages were assessed: (see Hopkins v. Grazebrook, 6 B. & C. 31.)

Recovering deposit from auctioneer no bar to special action upon the contract.]—A purchaser, by recovering the deposit from the auctioneer, will not be precluded from proceeding in his special action against the vendor for the recovery of the interest on such deposit, as also the expenses incurred in the investigation of the title.

Money had and received.]-This form of action is usually adopted for the purpose of recovering back the deposit or any part of the purchase money that may have been paid into the vendor's hands, in case the latter should refuse or be incapable to fulfil the contract; hence, although the purchaser has paid the purchase money, yet, if he is evicted before the conveyance is executed by all the necessary parties, he may recover the purchase money in an action for money had and received, although the intended covenants do not extend to the title under which the estate was recovered, and he may be in possession of the estate: (Cripps v. Reade, 6 T. R. 606; Johnson v. Johnson, 3 Bos. & Pull. 162.) But

if the conveyance has been executed by all the necessary parties, and the purchaser is afterwards evicted by a title to which the covenants do not extend, he can neither maintain this or any other action for the recovery of his purchase money (Cripps v. Reade, 6 T. R. 606; Bree v. Holbeck, Doug. 654), nor can he obtain any relief in equity: (Serjeant Maynard's Case, 2 Freem. 1; Anon., ib. 301.)

Requisites to support the action.]—To maintain this action, it will be necessary to prove-1. The contract; 2. The payment of the money; and 3. The breach on the part of the defendant.

Plaintiff entitled to recover notwithstanding he fails to prove a written contract.]-In this form of action a plaintiff may recover, notwithstanding he should fail in proving a valid written agreement; for although a parol agreement is insufficient to pass the property, still, if a purchaser has paid his deposit money under such an agreement, he will be entitled to proceed in an action for money had and received back again where a vendor fails or refuses to perform the contract: (Walker v. Constable, 3 Bos. & Pul. 306.)

to recover

Against whom an action to recover deposit should be brought.]-The action to recover back the deposit should be brought against the auctioneer and not the vendor; for it has been recently held that the purchaser at a sale, which proves to be abortive by reason of the vendor's inability to make a good title, cannot recover the deposit from the vendor as money had and received, but must bring his action against the auctioneer, he being the agent for both parties, and therefore the plaintiff's agent, and it is money in his hands for the plaintiff's use, and he it is from whom it is recoverable: (Johnson v. Roberts, 24 L. T. Rep. 250.)

No tender of conveyance necessary where vendor is unable to complete contract.]-Where the vendor is unable to make a good title, or is incapacitated from completing the contract, on account of his having resold the property, the purchaser may maintain his action for the deposit without preparing a conveyance: (Seward v. Willock, 5 East, 198.)

Proceedings under the Common Law Procedure Act.]—The purchaser has an equal right with a vendor to proceed under