cases might be suggested. These are cases where the fruits of the litigation have been substantially obtained. I do not think that the fact that judgment has or has not been signed is conclusive on the point. In Ex parte Games (1), the plaintiff, after declaration, gave the defendant a release of the cause of action. The release was pleaded. The replication confessed the plea and prayed judgment for costs. Judgment for costs was afterwards signed, and a writ of execution issued, but the plaintiff, in collusion with the defendant, refused to allow the execution to be enforced. The question was whether the Court would compel the defendant to pay the costs of the plaintiff's attorney. It was held that there was a proper case made out for the interference of the Court, and that an order calling on the plaintiff "or the defendant" to pay the costs was properly made. I do not say that when there is a clean verdict, although no formal judgment, the case may not be the same. The Court might look at it in the same light as if judgment had been signed. It would, however, be difficult to prove a fraudulent agreement between the parties during the progress of the litigation where there is no ascertained debt. No case has yet gone so far. When there is an agreed debt ascertained by the exertions of the attorney, as in Gould v. Davies (2), the attorney may sometimes claim the assistance of the Court to protect his rights. In Gould v. Davies (2) there was an agreement, without the intervention of the attorneys, between the plaintiff, a pauper, and the defendant, to settle the action, which was for a debt of 25l., the defendant giving the plaintiff a bill of exchange for 247., which was to remain in the hands of a third person till it was due. The Court held that the bill must be given up to the attorney. who In the present case it is admitted that the plaintiff is a pauper cannot pay his attorney. There was a verdict for the plaintiff for 257., and a rule nisi was obtained by the defendant to set aside the verdict on the ground that it was against evidence. According to the ordinary practice this rule would not have been granted without consulting the learned judge who tried the action, nor unless he were dissatisfied with the verdict. When the verdict is for so small a sum as 257., the Court is usually very unwilling to grant a new trial. There is, therefore, every reason to believe that the (2) 1 C. & J. 415. (1) 3 H. & C. 294; 33 L. J. (Ex.) 317. 1868 EX PARTE MORRISON. 1868 MORRISON. verdict was unsatisfactory. It was, therefore, doubtful whether the EX PARTE litigation would in the end be successful. At the time of the compromise it was far from being so. The case, then, seems to fall within that class of cases where the compromise is made while the litigation is going on, and it has not reached a successful issue. The case was in fact in a stage of expense; there was no actual fraud; the plaintiff really wanted the money, and the defendant being sued by a pauper might well give 107. to save the expense of a new trial. It was not necessarily collusive. This is an application to the equitable jurisdiction of the Court, and when an arrangement is made to deprive an attorney of the fruits already obtained in the litigation, and thus to deprive him of all remuneration, this jurisdiction will be put in force. But this is not the case here. The attorney has no claim unless the law be that where litigation is once commenced by a pauper the attorney has a right to insist on the action being continued to judgment. But this is not the law, and it would be more satisfactory if attorneys relied rather upon their clients' ability to pay them than upon the chance of obtaining their costs from the other side as the result of the litigation. HAYES, J. I am of the same opinion. We should be going beyond any decided case if we granted this rule. The substantial ground of the application is, that the attorney has been deprived of his costs by the compromise between the plaintiff and the defendant; but, in fact, the costs from the defendant to the plaintiff were in doubt. The plaintiff was indebted to his attorney, but the defendant was not. There was no certainty as to the result. The Court never grants a rule for a new trial in a case like this, unless there are strong grounds for a new trial. We cannot say we are depriving the attorney of his costs when it was quite uncertain whether costs would be obtained from the defendant. Morrison in person. Rule discharged with costs. Attorney for defendant: Thomas Moss. PHILLIPS v. CALDCLEUGH AND ANOTHER. Vendor and Purchaser-Conditions of Sale, as to Title. The plaintiff contracted to purchase of the defendants a house described as a "freehold" residence, &c.,-being lot 2 referred to in the particulars-subject to certain conditions of sale, and paid the deposit. Condition 5: "The abstract of title to lots 1, 2, and 3 (being the freehold portion of the property), will commence with a conveyance of the 17th of April, 1860, and no purchaser shall investigate, or take any objection in respect of the title prior to the commencement of the abstract." 9. "If any error or misstatement shall appear to have been made in the particulars of sale, it is not to annul the sale; but shall entitle the purchaser to compensation." The abstract of the deed of the 17th of April, 1860, recited an indenture of the 2nd of March, 1850, whereby E. assigned to R. in fee, and another deed whereby R. assigned to certain trustees in fee, and by the deed the trustees conveyed to the defendants' testator in fee, subject (so far as the premises were subject thereto), to the covenants and conditions on the part of the grantee, his heirs and assigns, in the said indenture of the 2nd of March, 1850. The plaintiff refused to complete the purchase without further explanation of what these covenants and conditions were, and the defendants refused any further abstract, relying on the 5th and 9th conditions:— Held, that the property having been sold as "freehold," the plaintiff was entitled to have an unencumbered freehold title under the deed of the 17th of April, 1860; and the 5th and 9th conditions did not protect the defendants; and the plaintiff was therefore entitled to rescind the contract and recover the deposit, &c. DECLARATION, that the plaintiff and defendants agreed that the plaintiff should purchase of the defendants and the defendants should sell a house described as a freehold residence on certain conditions of sale (setting them out); that the plaintiff paid a deposit, but the defendants could not make out a title according to the conditions, claiming the deposit and the expenses incurred in investigating the title, &c. Plea, inter alia, that the defendants did make out a title according to the conditions. A case was stated, of which the following are the parts material to the point argued. On the 5th of April, 1867, the plaintiff and the defendants entered into a written contract for the purchase by the plaintiff from the defendants of a house, described as a freehold residence, being lot 2 referred to in the particulars and conditions of sale, for 6007., subject to certain conditions of sale; and paid a deposit of 1207. 1868 Nov. 26. 1868 PHILLIPS v. CALDOLEUGH. Among the conditions of sale were-5. The abstract of title to lots 1, 2, and 3 (being the freehold portion of the property), will commence with a conveyance dated the 17th of April, 1860, and no purchaser shall investigate, or take objection in respect of the title prior to the commencement of the abstract.-9. If any error or misstatement shall appear to have been made in the particulars of sale, such error or misstatement is not to annul the sale or entitle the purchaser to be discharged from the purchase, but a compensation is to be made to or by the purchaser, as the case may be, and the amount of such compensation to be fixed by the auctioneer.-10. If any purchaser shall fail to comply with the above conditions, his deposit shall be forfeited to the vendor, who shall be entitled to resell, &c. The abstract delivered was of an indenture of the 17th of April, 1860, between W. T. Riley, A. B. Cockrane, and W. Pearson of the one part, and E. Mathews and George Beckett of the other part; reciting, inter alia, an indenture of the 2nd of March, 1850, whereby R. Edmunds assigned unto E. Richards, in fee, several messuages or tenements, with their appurtenances; and reciting a deed under the sanction of the court of bankruptcy, whereby Richards assigned the same to Riley, Cockrane, and Pearson, in fee, as trustees of sale for the benefit of Richards' creditors; and reciting that Riley, Cockrane, and Pearson had, as such trustees, contracted to sell to Mathews and Beckett the hereditaments described in the schedule, in fee, subject (so far as the same premises were subject thereto) to the covenants and conditions on the part of the grantee, his heirs and assigns, in the said indenture of the 2nd of March, 1850, and to the payment of the apportioned rentcharge in lieu of tithes, but free from all other incumbrances. And it was witnessed that Riley, Cockrane, and Pearson, in execution of the trust, did convey the hereditaments following, to Mathews and Beckett, and their heirs, subject to the covenants and conditions in the said indenture of the 2nd of March, 1850, contained, so far as they relate to part of the hereditaments, and subject to the said covenants and conditions as to the other part. The abstract then set out mesne assignments by which the house in question came to the defendants, under the will of Edward Mathews. The plaintiff made, inter alia, the following requisition: "The vendors must shew, notwithstanding any of the conditions of sale, that the covenants and conditions contained in an indenture dated the 2nd of March, 1850, and referred to in the first abstracted deed, do not in any manner affect the property comprised in lot 2, and that the purchaser incurs no liability in respect of them." To which the defendants made answer: "The purchaser's solicitors are referred to the 5th condition of sale." Further correspondence ensued, but no further abstract was delivered by the defendants, on which the plaintiff refused to complete the purchase, and the defendants resold the property. The plaintiff then brought this action to recover the deposit and expenses of investigating title, with interest, &c. The question for the Court was, whether the plaintiff was entitled to recover. Joshua Williams, Q.C. (with him R. B. Steele), for the plaintiff. The case scarcely admits of argument. The plaintiff purchased a "freehold," that is an unencumbered freehold. By the 5th condition the abstract of title is to commence with the deed of the 17th of April, 1860, but that deed shews a freehold encumbered with some covenants or other, which the defendants refused to give any account of. The plaintiff was clearly not bound to accept this title. THE COURT then called upon Dowdeswell, Q.C. (Raymond with him), for the defendants. By the 5th condition the plaintiff was not entitled to any other title than was conveyed by the deed of the 17th of April, 1860: Spratt v. Jeffery. (1) [LUSH, J. The plaintiff here purchased a "freehold," which means free of all encumbrances. In that case the plaintiff agreed to purchase the premises "as the defendant held them."] What other effect can be given to the 5th condition than that the purchaser should take such title as the deed of 1860 conveyed? Corrall v. Cattell (2), and Hanks v. Palling (3), shew that, under conditions like the present, the purchaser must be taken to purchase such a title as the vendor can give, without inquiry beyond (1) 10 B. & C. 249. (2) 4 M. & W.734. (3) 6 E. & B. 659; 25 L. J. (Q.B.) 375. 1868 PHILLIPS V. CALDCLEUGH. |