specific performance, or for the delivering up or cancelling any agreement for the sale or purchase of any property, where the purchase-money shall not exceed the sum of five hundred pounds" (h). In consequence of the omission of the word "of," after "specific performance," the precise effect of the above head, was to give the county court jurisdiction in all suits for specific performance, although it was intended to be confined to agreements for the sale or purchase of any property where the purchase-money shall not exceed 500l. This very material, although verbal, omission was remedied or attempted to be remedied by "The County Courts Act, 1867" (30 & 31 Vict. c. 142). Sect. 9 of that act enacts, that "The jurisdiction which is given by the act passed in the session holden in the twenty-eighth and twenty-ninth years of the reign of her Majesty, intituled an act to confer on the county courts a limited jurisdiction in equity, so far as relates to cases coming within the fourth head of the first section of the said act, may, from and after the passing of this act, be exercised in all suits for specific performance of or for the reforming, delivering up, or cancelling of any agreement for the sale, purchase, or lease of any property where, in the case of a sale, or purchase, the purchase-money, or in the case of a lease, the value of the property, shall not exceed five hundred pounds." The act, it will be seen, introduces the omitted word "of," and is intended to wholly supersede the fourth head of the original act. It is to be regretted that this intention was not carried out by expressly repealing the fourth head. As the 9th section is framed it is capable of being read simply as an extension of jurisdiction, leaving the fourth head to stand as before with the doubtful jurisdiction"in all suits for specific performance." Nevertheless as there are no orders or rules or forms provided for the fourth sub-section of the first section of "The County Courts Act, 1865," that sub-section must be treated as no longer having any operation. The amended provision also expressly includes leases (i), and also the reforming of agreements. Suits for Specific Performance.]-A court of equity may compel executory agreements to be carried into strict execution unless where it is improper or impossible: and hence a fiction is established, that what ought to be done shall be considered as being actually done, and shall relate back to the time when it ought to have been done originally (3 Bla. Comm. 438). (h) 28 & 29 Vict. c. 99, s. 1, sub-s. (4), ante, p. 3. (i) Although agreements for leases were not originally expressly mentioned in the fourth head of jurisdic tion, it was held that a liberal con- PART IV. By the common law every covenant to sell or transfer a thing, if there is no actual transfer, is treated as a mere personal contract, and as such, if it is unperformed by the party, no redress can be had except in damages; thus allowing the party the election, either to pay damages, or to perform the contract, at his sole pleasure. But courts of equity have deemed such a course wholly inadequate for the purposes of justice; and they have not hesitated to interpose and require from the conscience of the offending party a strict performance of what he cannot without manifest wrong or fraud refuse (Story's Equity Juris. § 714). The Court of Chancery may, however, if it thinks fit, award damages to the party injured either in addition to or in substitution for such specific performance, and such damages may be assessed in such manner as the court directs (21 & 22 Vict. c. 27, s. 2). This same power is conferred (by force of ss. 1 and 2 of "The County Courts Act, 1865,") upon the county court. As to the mode of assessing the damages, see post, Chap. VI. § 4. Agreements may be made respecting personal acts, personal property and real property. The county court jurisdiction is, however, confined to agreements for the sale or purchase of property, and the most ordinary suit of this kind is for the performance of a contract for the sale of land, which may be brought either by the seller to compel the other party to complete the purchase to which he has agreed, or by the buyer to compel the seller to make a conveyance of the land; and the general rule is not to entertain jurisdiction in equity for a specific performance of such agreements respecting goods, chattels, stock, choses in action, and other things of a merely personal nature, where a compensation in damages furnishes a complete and satisfactory remedy (Story's Equity Juris. § 718). It may be observed, that although under "The Common Law Procedure Act, 1854," the plaintiff, in an action in any of the superior courts, may claim a writ of mandamus commanding the defendant to fulfil any duty in the fulfilment of which the plaintiff is personally interested, it has been decided that this provision does not extend to a duty arising out of a personal contract, but refers to the class of cases in which there is a duty of a public nature, or a duty created by act of parliament in the fulfilment of which some one has a personal interest (Benson v. Paul, 6 E. & B. 273; 25 L. J. (N. S.) Q. B. 274). It does not therefore interfere with the cases which are ordinarily the subject of a suit in equity for specific performance, and clearly does not apply to suits for specific performance of agreements for the sale or purchase of property to which this branch of the equitable jurisdiction of the county court is confined. Suits for delivering up or cancelling Agreements.]—When deeds are wrongfully withheld from those whose estates they concern, the courts of equity will render assistance to obtain the delivery of them; and those courts will also generally set aside, cancel, and direct to be delivered up, agreements and other instruments, however solemn in their form or operation, which, though good in law, justice or public policy require to be annulled; first, when there is actual fraud in the defendant, in which the plaintiff has not participated; secondly, when there is a constructive fraud against public policy, and the plaintiff has not participated therein; thirdly, when there is a fraud against public policy, and the plaintiff has participated therein, but public policy would be defeated by allowing it to stand; and fourthly, when there is a constructive fraud by both parties, but they are not in pari delicto (Story's Equity Juris. $695). As to the first class of cases: When one party complains that another has circumvented him in a bargain by some misrepresentation, he must show that such misrepresentation involved not only an actual falsity, but a falsity which materially influenced him in entering into the bargain. Thus false descriptions of non-essential and unimportant particulars will vitiate no bargain; nay, even a material misrepresentation will not be regarded by a court of equity in cases where the one party cannot be presumed to have placed any trust and confidence in the other. In matters of mere opinion, or those which are equally open to each side for examination and inquiry, this rule will hold good. The mere puffing and praise of a seller, bestowed upon his own commodity, will not be supposed to influence the judgment of a buyer of ordinary sagacity, and it is not the province of courts of justice to aid those who will not use their own sense and discretion (k). But the case is otherwise when the seller misrepresents or conceals some fact with regard to which the buyer must needs trust him for information; some matter which could alone be in the seller's cognizance, or upon which he would be the best authority. If a man bargain to sell another a house in a distant town, knowing at the same time that the house has been burnt down, such a bargain will be set aside; for each party is, as a general rule, bound, in every case to communicate to the other his knowledge of mutual facts, provided he knows the other to be ignorant of them, and they be not naked and (k) "The Sale of Land by Auction Act, 1867" (30 & 31 Vict. c. 48), s. 4, recites that," whereas there is at present a conflict between her Majesty's courts of law and equity in respect of the validity of sales by auction of land where a puffer has bid, although no right of bidding on behalf of the owner was reserved, the courts of law holding that all such sales are absolutely illegal, and the courts of equity under some circumstances giving effect to them, but even in courts of equity the rule is unsettled; and whereas it is PART IV. PART IV. open, or equally within the reach of his observation. But this must be restricted to facts immediately relating to the thing in question, for the mere concealment of extrinsic facts, which may possibly influence the market value of a commodity, and of which one party happens to have private and exclusive information, will not affect the validity of a bargain. Whenever, however, a fiduciary relation of any sort subsists between the parties, then the smallest concealment of anything whatever which tends to the disadvantage of the one, whose interest the other is bound in faith to protect, will be scrutinized with the sharpest eye. It is a wellknown rule of a court of equity, that no person standing in the situation of a trustee can purchase the property of his cestui que trust; this rule applies to all persons having either a fiduciary character, or having a power given them by their situation which it is possible they may abuse. The second class of cases consists of constructive frauds, or such acts or contracts, as although not originating in any evil design to defraud or injure another, yet having a tendency to deceive, or to violate public or private confidence, are deemed worthy of repression equally with frauds of the more gross or palpable sort. This class may be illustrated by secret dispositions of property by women in contemplation of marriage, without her intended husband's privity, which are held void as being in derogation of the marital rights of the husband, and a fraud upon his just expectations. And a secret conveyance made by a woman, under like circumstances, in favour of a person for whom she is under no moral obligation to provide, would be similarly treated. But if she only reasonably provides for her children by a former marriage, in the absence of any palpable deception practised on the intended husband, such an arrangement will, it seems, stand good (3 Bla. Comm. by Kerr, 501, 502). It must be observed that the county court jurisdiction is confined to the case of agreements for sale or purchase (i. e. for money), so that settlements of the above description would scarcely fall within the cognizance of these courts. The third class may be illustrated by the common case of a gaming security, which will be decreed to be given up, notwithstanding both parties have participated in the violation of the law because public policy will be best subserved by such a course. The fourth comprises a class of cases where, although both parties have participated in the guilty transaction, yet the one who seeks relief has acted under circumstances of oppression, imposition, hardship, undue influence, or great inequality of age or condition, so that in a moral, as well as in a legal point of view, his guilt may be deemed less than that of his associate (Story's Eq. Juris. 8th edit. § 695a). It may be observed that no purchase made bonâ fide and without fraud or unfair dealing, of any reversionary interest in real or personal estate, can now be opened or set aside merely on the ground of undervalue (1); but this does not take away the protection thrown by the courts of equity "around unwary young men who are in the hands of unscrupulous persons ready to take advantage of their necessities" (m). § 6. JURISDICTION IN SUITS FOR PARTITION. "The Partition Act, 1868" (31 & 32 Vict. c. 40), (which provides for a sale and distribution of the proceeds, instead of a partition of property, under certain circumstances), enacts— Sect. 12. "In England the county courts shall have and exercise the like power and authority as the Court of Chancery in suits for partition (including the power and authority conferred by this act) in any case where the property to which the suit relates does not exceed in value the sum of five hundred pounds, and the same shall be had and exercised in like manner, and subject to the like provisions as the power and authority conferred by section one of the County Courts Act, 1865 (n). Where in a partition suit the question was one of disputed legal title, and the plaintiff had not clearly established his claim, the court retained the bill for a year, with liberty to the plaintiff to bring such action as he might be advised (0). A joint tenant, or tenant in common, in reversion or remainder, cannot maintain a suit for partition (p); and if a plaintiff is not entitled to the relief prayed at the commencement of the suit, the defect is not cured by a subsequent acquisition of title (q). The court may, in a partition suit, direct a sale of part of the property and a partition of the remainder (r). PART IV. CHAP. I. The general rule is that all the costs of a partition suit are to be Costs of parborne by the parties according to the benefit they gain under the tition suit. partition, that is to say, in proportion to the value of their shares. Otherwise, if one party has misconducted himself (s). (1) 31 & 32 Vict. c. 4. (m) Tyler v. Yates, 40 L. J. (N.S.) Ch. 768. (n) See also sect. 9 of 31 & 32 Vict. c. 40, respecting parties to the suit. As to the construction of the Partition Act, see Pemberton v. Barnes, 40 L. J. (N. S.) Ch. 675. The prayer of a petition may be for a sale and not for a partition. Aston v. Meredith, id. p. 241. An order for sale may be made although one of the parties entitled is out of the jurisdiction. Teall v. Watts, 40 L. J., Ch. 176. But notice should be (0) Giffard v. Williams, 39 L. J. (p) Erans v. Bagshaw, 39 L. J. (r) Roebuck v. Chadebet, 38 L. J. (8) Cannon v. Johnson, 40 L. J. (N. S.) Ch. 46. D. VOL. II. |