are unable to confer an absolute estate for want of the consent of the protector of the settlement, by which it may be arranged that some portion of the purchase moneys may be paid over to trustees, and invested upon trust, to be paid either to the tenant in tail or his representatives, on the title being perfected; or be paid over to the purchaser, or his representatives, in case the title shall not be so perfected within some specified time.

As to indemnity against wife's title to dower.]-In like manner, if a vendor is unable to procure his wife to release her right of dower, it may be agreed that one third of the amount of the purchase money shall be paid to trustees to be invested in like manner as before mentioned, and to be paid over, with the accumulations, to the vendor, in the event of his surviving his wife, or to be repaid, with all the accumulations, to the purchaser, in case the vendor shall happen to die in her lifetime, without having been able to get her to release her claim.

Where some of the conveying parties are under age.]—In case any of the conveying parties are under age, an arrangement may also be made by which the purchaser is to be allowed to retain some portion of the purchase money until such parties attain their majority and duly execute the con

veyance.

of

for

As to the liquidated damages clause.]-A clause is often inserted in agreements, but very rarely in conditions of sale, by which each of the contracting parties binds himself to the other for the payment of a certain sum, in the nature of liquidated damages, for the due performance of his part the contract (see the form, 1 Con. Prec., Part I., No. V., clause 10, p. 26, 2nd edit.), and whenever this is done, provided the clause is accurately penned, the entire sum specified may be recovered by action, without any power the jury to reduce the amount; neither will a Court of Equity interpose for that purpose. But care must be taken to frame the clause in such a manner that no doubt can possibly be raised upon its construction. It ought to state explicitly that the sum is to be paid in the nature of liquidation damages, and not by way of penalty; for if the sum is stated to be paid by way of penalty only, the jury might then assess what amount they thought proper, because, in the case of a penalty, the degree of injury sustained is the guide to the jury in assessing the amount of damages

they should return a verdict for (Smith v. Dickinson, 3 Bos. Pull. 630; Barton v. Glover, Holt N. P. C. 43; Lowe v. Peers, 4 Bur. 2229; Crisdee v. Boulton, 3 Car. & Pay. 240); whereas if a certain specified sum is agreed to be paid for liquidated damages, there the precise sum that is to be paid is in evidence before them, and they are bound to assess the damages accordingly, without any reference as to the degree of injury the plaintiff may have actually sustained by the breach of contract.

Payment of the penalty or liquidated damages does not dissolve the contract.]-The payment of a sum of money, whether by way of penalty, or in the nature of liquidated damages, does not release the parties from the contract; for that they are still bound to carry out, and have not the option, by paying or tendering the penalty, to be released from its performance: (Hobson v. Trevor, 2 P. Wms. 183; Christ's Hospital v. Pugh, D. P. March 20, 1727; Howard v. Hopkins, 2 Atk. 371; Parks v. Wilson, 10 Mod. 518; Chilliner v. Chilliner, 2 Ves. 258; Margrave v. Archbold, 1 Dow. 107.)

VIII. DUTIES OF THE PURCHASER'S SOLICITOR PRIOR TO THE CONTRACT.

Duties of the purchaser's solicitor where the sale is by public auction.]-The duties of a purchaser's solicitor prior to the contract, where an estate is to be sold by auction, is to look carefully through the conditions of sale, to see, first, whether or not they preclude a purchaser from requiring the production of such a title as will not only secure him the unmolested enjoyment of the purchased property, but also one that he may at any future time be able to compel a subsequent purchaser to accept; and, secondly, whether the conditions do not press unfairly on a purchaser, by obliging him to bear the burden of some of those incidental expenses connected with the transaction, which ought properly to fall upon the vendor's shoulders. Should either prove to be the case, the solicitor ought, in the first instance, to advise his client to avoid entering into any contract subject to such restrictive conditions; and in the other, should ascertain, as nearly as he can, what the probable amount of the undue proportion of the expenses the vendor designs to throw upon the vendee, which he must view in the same light as so much additional purchase money, and regulate his biddings

accordingly.

Similar precautions necessary in settling the terms of contract as conditions of sale.]-Precisely the same precautions as those we have just mentioned will be necessary on the part of a purchaser's solicitor settling the terms of the agree ment, where the sale is made by private contract.

Where a vendor has a safe holding, although not a marketable title.]-Another important subject to which a purchaser's solicitor may sometimes have to direct his attention is, where property, which has a defective title, would in all other respects prove an advantageous purchase for his client; and here it will be necessary for him to consider well whether, although not a marketable one, it may not be a perfectly safe holding title, and whether, if the property is subject to incumbrances, which cannot be removed, they are really of such a nature as materially to affect the ownership or enjoyment of the property. And where a vendor proposes to indemnify a purchaser against any losses or prejudice he may incur from a defective title, it will be requisite for the purchaser's solicitor to see not only that the nature of the indemnity is sufficient, but also that the vendor has the means and ability to carry it into effect.

With respect to defective titles to freehold estates, where they affect the actual possession, these frequently arise from estates tail having been ineffectually barred; as, where the entail has been barred by a fine, instead of suffering a recovery, in which case only a base fee will have passed deter minable on the death and failure of issue of the tenant in tail; the same consequence also occurs where, under the new system of docking entails, a tenant in tail under a protected settlement has barred the entail without the protector's consent; which will only enable him to convey a similar base fee as a fine would have done previously. The safety of titles so circumstanced depends entirely upon the existence of the issue in tail. If they are numerous and healthy, so that there is every probability that some of them will survive the protector, and live to attain their majority, if the tenant in tail covenants, or has covenanted, that he or his issue will, when competent so to do by the death of the protector, or obtaining his consent, perfect the disentailing assurance by an absolute conveyance to the purchaser, under these circumstances the purchaser's risk would be inconsiderable; but the danger would increase in proportion as his children are few in number or unhealthy in constitution, and still more so if he has none, or unlikely ever to have any; as then the base fee must determine with his death; and if this

takes place in the protector's lifetime, the voidable estate becomes incapable of confirmation.

As to contingent and executory estates.]—The like observations are also applicable to contingent or executory estates arising out of executory devises. Some of these are of most precarious tenure; as where an estate, although limited to a party in fee simple, is made determinable on some contingent event, which, from subsequent circumstances, must necessarily take place during the lifetime of persons in being. As, for example, where an estate is devised to a female and her heirs, with a limitation over in case of her death without leaving any children, or other issue living at the time of her decease, and she is become old and sickly, without issue and beyond the age of child-bearing, in which case her fee simple estate is no better than a very bad life estate; but the executory limitation over, although contingent in the eye of the law, is in reality equal to a vested estate in remainder expectant on a life interest limited to a previous tenant for life. But if, on the other hand, the lady were young and likely to have children, the chance of the executory devisee's succeeding to the property would be greatly reduced, and if many children were to be actually born, dwindled away to such a shadow of a chance as to be all but valueless to a purchaser.

In cases of property so situated, therefore, great care will be required to discover whether or not a safe or advantageous purchase may really be made; but which must be guided so much by the particular circumstances of each individual case, that it is impossible to lay down any precise rules upon the subject.

As to incumbrances which do not affect the occupation of the property.]-With respect to incumbrances which do not interfere with the actual occupation of the property, as annuities, or rent-charges, legacies, or portions, a purchaser may not object to take a title subject to charges of this nature upon having a proportionate sum deducted out of the purchase money, or from being indemnified by the vendor against all the consequences of any such charges.

In cases of this kind great vigilance will be required on the part of the purchaser's solicitor to see that, in the former instance, an adequate reduction is made in the amount of the purchase money; and in the latter, that the indemnity given is an effectual one.

[P. c.]

H

As to indemnities.]-Sometimes a vendor proposes to indemnify the purchaser from incumbrances of this kind by his bond, or a deed of covenant; but neither of these can be relied upon as an adequate indemnity. They must, in every case, depend upon the solvency of the vendor's circumstances, which, though good enough at the time the indemnity is given, may afterwards fail altogether; and even if the vendor continues all his lifetime in affluence, his representatives may, after his death, get rid of all his assets, and thus deprive the purchaser of the sources from which the indemnity is to be derived.

The plan we have already suggested of placing some portion of the purchase moneys in the hands of trustees, to be applied in discharge, or as an indemnity against incumbrances, as we have previously noticed, is also a good plan for protecting a purchaser, and is particularly well adapted to those cases where the time of discharging those incumbrances has not yet arrived; as in the case of legacies, or portions charged on real estate to be paid to certain parties on their attaining twenty-one, or marriage, who are still under age and unmarried. A similar arrangement may also be made where the property is subject to an annuity or rent-charge, and the trustees should have a sufficient sum placed in their hands to meet all such expenses as the purchaser may incur on account of those charges. The objection generally is, that a vendor is oftentimes in want of all the purchase money for his own purposes, and therefore is unwilling to allow any portion of it to be applied in any other manner. To meet this difficulty, it may be arranged that the vendor shall convey other property belonging to him, if he has any eligible for the purpose, to trustees, in trust, in the first place, to discharge the incumbrances, and keep the purchased premises effectually discharged therefrom," and subject thereto in trust for the vendor.

Whole terms of the agreement should be reduced into writing.]-Whatever the terms of the agreement may be, the solicitors on either side should see that they are carefully reduced into writing, and that nothing is to be left on the understanding that it will be carried into effect in the same manner as if a regular written agreement was duly entered into respecting it. And in case the negotiation is carried on by a correspondence by letters, it should be conducted in such a manner as that the terms proposed in the letters may be construed as treaty only, and not as an actual contract,