5. As to the bill, p. 470.

Suit may be commenced by bill or claim, 470-form of bill, 471-need not allege signature, &c., ib.—letters, how to be referred to, ib.-inferences of law, whether to be stated, ib.—waiver relied on should be alleged, ib.-and facts supporting it stated, 471, 472—prayer for general relief, what to be obtained under, 472.

6. As to proceeding by claim under the Orders of April, 1850, p. 473. Ordinary claim, 473-special claim, ib.-writ of summons, ib.-who to be named defendant, 473, 474-showing cause, ib.-hearing, and order thereon, ib.--effects of order, ib.-Court at hearing may direct bill to be filed, ib.-form of order, 475-plaintiff may proceed by bill; when, ib.-extra costs occasioned by bill, ib.-in what cases orders apply, ib.

7. As to how the plaintiff's case may be sustained in the absence of a written agreement,—fraud, part-performance, admission by defendant of parol agreement, parol variation of written agreement, p. 476.

Written agreement dispensed with, 476-on the ground of, 1st, fraud, 4772nd, part performance, what acts of, sufficient, 477—or insufficient, 478—expenditure by tenant, 479-verbal notice and retention of possession by tenant, held to be a sufficient declaration of option to purchase, 480-case of mere acquiescence in heavy expenditure and no agreement, ib.—plaintiff, how far bound to show precise terms of contract, 481-immaterial terms, though stated, need not be proved, ib.-material terms must ultimately be clearly shown, ib.-act by defendant, merely to his own prejudice, no part performance, 482-nor does part performance as to one lot affect another lot, ib.—sales by auction and in bankruptcy are within the statute, ib.—3rd, admission of agreement, and statute not insisted on, ib.-purchaser cannot in general enforce specific performance of written contract with parol variation, 483-subsequent parol variation enforcible only if part performed, ib.

8. As to grounds of defence negativing plaintiff's right to specific performance, except with a variation of the original written agreement; viz., fraud, mistake, misrepresentation, unfulfilled promise, parol variation, &c., p. 484.

1st, Fraud, or mistake, affecting the terms of the agreement, 484-2ndly, fraud, mistake, or surprise, inducing defendant to enter into agreement, misapprehending its effect, 484, 485-mere suspicion of fraud insufficient, ib.-3rdly, misrepresentation or unfulfilled promise, inducing defendant to enter into agreement, knowing its terms and effect, 485, 486-parol addition, when admissible, 487stipulation omitted by consent, no defence, 488—4th, subsequent parol variation part performed, ib.

9. As to grounds of defence negativing in toto plaintiff's right to specific performance ; viz., personal incapacity; nature of contract, or fraud, &c. &c. attending its execution; matters relating to the estate, title, or consideration; plaintiff's conduct, &c., after contract; election of other remedy, p. 488.

1st, Personal incapacity to contract on part of defendant, 489-intoxication, ib.personal incapacity on part of plaintiff, how far a defence, ib.-2nd, matters relating to the contract, &c.; illegality, 490-impolicy, ib.-breach of trust, ib.-— improvident contract by agent, 491-hardship, ib.-fraud, mistake, surprise, misrepresentation, or concealment, 492-fraud of third person, when immaterial, 493-want of mutuality of remedy, whether a defence, 493 to 495-nominal contractor, 496-insertion of penalty no defence, ib.-inabiliiy to recover damages at Law, how far a defence, ib.-3rd, matters relating to the estate

L

original defects in, 497-public nuisance, ib.-destruction of estate, 498-4th, matters relating to the title; want of, considered as a vendor's defence, ib.vendor must convey part of estate with abatement, 499 to 501—must convey partial interest with an abatement, when, 501 to 503-indemnity, 503-vendor's and purchaser's rights as to abatement, not reciprocal, ib.-purchaser's right to, how lost, ib.-vendor, how far bound to make good interest contracted for out of his own higher interest, 504-want of title, where a defence for purchaser declining abatement, 504-where estate is of different tenure, ib.—or is held in a different manner, ib.-or no title is shown to the same extent of interest as he contracted for, 404, 405—or no tltle is shown to a material part of estate, 505or incumbrances or liabilities exist which would affect its enjoyment, 506-or matters exist which increase his proposed liability, ib.—or affect the enjoyment of material part of property, 507-defect in title to one of several lots, ib.-benefit of defence, how lost to purchaser, 508-defects in title which are not a purchaser's defence, ib.-limited instead of unlimited right of common, ib.-small quit-rents, &c., ib.-tithes, when freedom from tishe was no part of inducement, 508, 509-existence of footway, 509-5th, matters relating to consideration, 510— inadequacy of, when a vendor's defence, ib.-sale by auction, ib.—sale of unascertained interest, 511-consideration uncertain in amount, whether question of inadequacy thereby excluded, ib.-reversionary interests, 512-failure of contingent consideration, ib.—excess of purchase-money, when a purchaser's defence, ib.-6th, conduct of plaintiff after contract, when a defence, 513-release, waiver of, or delay to enforce the contract, 514-what delay in filing bill a defence, ib.-conduct of plaintiff, waste of estate, 515-ejectment of purchaser rightfully in possession, ib.-inability of vendor to perform material stipulation under contract, 515, 516-election of remedy, action brought and damages recovered, 516.

10. As to the proceedings in the suit; viz., payment of purchase-money into Court, reference of title and proceedings thereon, decree for plaintiff, conveyance, decree dismissing bill, p. 516.

Purchaser in possession, when ordered to pay purchase-money into Court, 516allowed to elect either to pay or vacate possession, 517-quantity of land taken, when uncertain, no order made, ib.-under special circumstances, receiver appointed, 517, 518-or occupation-rent set on estate, 518-vendor-plaintiff seeking injunction, when obliged to pay in deposit, ib.-injunction against waste by purchaser in possession, ib.—against exercise by vendor of his legal rights, ib. -reference of title, on motion before hearing, 519-unless contract resisted on grounds other than title, ib.-frivolous defence, 520-objections to title, what are, ib.-order refused on ground of delay, 521-or waiver of title, ib.—conditional acceptance, ib.-order, subject-matter and form of, ib.-in suit commenced by claim, 522-proceedings on reference, 522, 523-purchaser need not accept doubtful or merely equitable title, 523-or consent to a case being sent to Law, ib.-as to doubtful titles, 524, 525-pendency of adverse suit, 525-adverse right not likely to be enforced, 526-outstanding interest, 527-report in favor of title and no exception, decree for plaintiff unless new matter appears, 528exceptions taken; cause should also be set down on further directions, ib.—if exceptions allowed, a fresh reference will be directed at vendor's request, ib.— otherwise bill is dismissed, 529-exceptions overruled; purchaser how far precluded from other objections, ib.-report against title and no exceptions, bill dismissed on motion, 530-exceptions taken and allowed; reference back, when directed, ib.-if no exceptions, decree will be made on hearing, if vendor can

then remove objections, ib.-removal of objections, an answer to purchaser's motion to be discharged, 531-purchaser's general right to reference of title, how waived, ib.-purchaser, after great delay, not forced to take clearly bad title, ib.-decree for specific performance, its form, 532—plaintiff may take a decree adopting parol variation proved by defendant's agent, ib.—may elect to take defective title, 533-decree for specific performance no bar to adverse claims, ib.-plaintiff not allowed to take decree according to that construction of agreement which he had repudiated, ib.—defendant may take decree with parol variations of written contract offered by purchaser's bill, 534-parol variation proved by defendant, no decree for plaintiff, but defendant may take decree without cross bill, ib.-decree should direct accounts, &c., ib.-decree, in vendor's suit, may direct re-sale, and payment of the deficiency by purchaser, ib.— as to conveyance being settled by Master, 535—course of proceeding, 536, 537— conveyance under the Trustee Act, 1850, ib.-under 1 Will. IV. c. 65, in case of lunatic vendor, ib.-how to be obtained when party refuses to convey, ib.-interest on money refunded on appeal, not generally allowed, 538-decree dismissing vendor's bill, return of deposit when ordered, ib.

2. As to costs, p. 539.

Costs, unsuccessful litigant generally pays, 539-cases where general rule is allowed to operate, 540-cases where it is enforced with more than ordinary stringency, 541-cases where it is modified so as to deprive successful litigant of costs wholly or in part, ib.-cases where, in contravention of general rule, successful litigant is made to pay costs, 543-costs, when defendant submits to plaintiff's demand, 545—when defendant disclaiming is entitled to costs, 546possession, how far important, ib.-deposit not set off against costs, 547-costs of case sent to Law, ib.-costs of action at Law, ib--no interest payable on costs refunded, 548.

CHAPTER XIX.

AS TO SALES BY THE COURT OF CHANCERY.

1. As to the time for, conduct of, and manner of the sale, p. 549. Sale is usually by auction, but may be by private contract, 549-when made in administration suit, ib.-may be made under 3 & 4 Will. IV. c. 104, in suit by person claiming under will, 550-in suits commenced by claim, ib.-who may bid at, ib.—who conducts, 551-Court, executing trust, cannot anticipate time thereby fixed for sale, ib.-sale may be in town or country, ib.-relative duties of vendors and purchasers prior to, 552-particulars and conditions; preparation, allowance, and nature thereof, ib.-payment of deposit, arrangement respecting, 553-advertisements, ib.-expenses, ib.-highest bidding by a person incompetent, or of insufficient means, 553—bidding after estate bought in, 554 -resale of lots remaining unsold, ib.

2. As to the rights and liabilities of the highest bidder after the sale, but before confirmation of the Master's report, and as to opening bidding, p. 554.

Highest bidder not the purchaser until Master's report confirmed; his rights in the interim, 554-death of, before confirmation, contract cannot be enforced against representatives without suit, 555-sub-sale at profit before confirmation, is for the benefit of the estate, ib.-until confirmation, biddings may be opened on sufficient advance in price, ib.-what advance sufficient, 556-several lots 557-course of proceeding, ib.—deposit required, 558—first purchaser to be paid

interest and costs, ib.-biddings may be re-opened on neglect to pay in deposit. ib.-resale, ib.-first purchaser discharged by order opening biddings, 559-person opening biddings, if outbid at resale, is prima facie discharged, ib.—when entitled to costs, ib.-opening biddings in fictitious name, ib.

3. As to confirming the Master's report of the purchase, and as to the purchaser's rights and liabilities after confirmation, p. 559.

How purchaser can confirm Master's report, 559-after confirmation, he is prima facie entitled to estate, 560-may move to pay in his purchase-money, or to discharge incumbrances, 561-substitution of purchaser, ib.

4. As to the investigation of the title, payment and application of purchase-money, possession, and preparation and execution of the conveyance, p. 562.

Abstract, and title, 562-costs of reference, ib.-purchase-money may, under special circumstances, be paid in without accepting title, 564-as to its application and distribution, ib.-where the estate is encumbered, 565—if invested at purchaser's request, he takes proceeds of investment, if contract rescinded, 566-is entitled to possession, when, ib.-on purchase of life interest or life annuity, 567-as to the abstract, &c., ib.-conveyance, when to be settled by Master, ib. -executor of lessee entitled to indemnity from purchaser of leaseholds, ib.— purchaser may require concurrence of all necessary parties, 568—who are such, ib.-party refusing may be ordered to convey, ib.-against whom order will be made, ib.-party refusing may be declared a trustee, 569.

5. Purchaser's rights after completion, p. 569.

Purchaser, after conveyance executed, may claim deeds, 569-as to attested copies, 570-will be protected against all parties to the suit, ib.-unless Court exceeded its jurisdiction, ib.-allowed compensation for misdescription of estate,

571.

6. The practice when the purchaser fails to complete, p. 571.

Course to be adopted if purchaser refuse to complete, 571-if supposed to be irresponsible, 572-if supposed to be responsible, ib.-purchaser, whether allowed to forfeit deposit and abandon contract, 573.

TABLE OF CASES.