discovery-waive the benefit of the principle, and come here saying, in effect, he trusts the representation of the plaintiff, without the obligation of an oath; and offering, in the first instance, to the consideration of the court, one neat dry point, upon which alone his objection rests." His Lordship adds: "The rule has not been considered so absolute." The whole import of these elaborate expressions comes to this,—that either party to the suit is, as matter of right, entitled to have a reference,—that this right may be waived by the purchaser, if he be so minded; and that such waiver may be either by express words, or by acts which shew that his intention was to waive, and that he actually has waived his right to have the title investigated. Whenever this happens, the court will decree the specific performance of the contract at the hearing, which puts an end to the suit. 3. Reference of Title on Motion.]-It is proper here to notice a practice which, until a very recent period, was peculiar to suits for specific performance, and which arises in a great degree from the character of this species of suit. For the purpose of explaining the nature of the practice here adverted to, it may be necessary to recal to mind, that the only point decided at the hearing, is the validity of the contract, and the reasonableness of enforcing it; the goodness of the title being reserved for subsequent consideration. In many cases, it is obvious that the contract is such as cannot be disputed, or such as the parties may have no wish to dispute, the purchaser being willing to complete on having a good title. Whenever this happens, it is manifestly useless to bring the cause to a hearing, there being in point of fact nothing to try at that stage of it, the only matter in litigation between the parties being the ulterior question as to the title. 1 Brooke v. Clarke, 1 Swanst. 551, per 2 Lord Eldon. v. Skel ton, 1 Ves. & Bea. 519; but see Harford v. Purrier, 1 Mad. In a suit, therefore, for specific performance, in which the single question is, whether the plaintiff can make a good title? the court at the present day directs on motion a reference to the Master to inquire into the title1, and this even without the consent of the other party 2; but, it seems, in the Exchequer, where the title is denied by answer, this practice does not prevail without consent 3. The reference having been obtained in the first instance on motion, the further directions may also be had on motion, and it is not necessary to set the cause down for that purpose. Lord Eldon says, that it was long thought that the cause must be 3. 3 532. Bowyer v. Bright, 3 Price, 300. 4 Whitcombe v. Foley, 6 Madd. 1 Brooke v. Clarke, 1 Swanst. 551. heard on further directions, but that he altered the practice, So, on the other hand, the purchaser may, on motion, have the bill dismissed with costs, it being competent for the court, on such a motion, to give costs, without setting down the cause for further directions, Lord Eldon observing, on such an application: "After the best consideration I can give the subject, I think it may be done on motion. It would be mischievous if the court, going such a length in suits of this kind on motion, could not Walters v. Py- follow it up in the same way 2." man, 19 Ves. 352. Per Lord El don, in Bonner v. Johnstone, 1 Mer. 372. The reference may be had even before answer, on an admission at the bar that there is no other question than that of title3, or where the defendant has done such acts of ownership or otherwise, as have clearly waived any question as to the contract, which Dixon v. Ast- may be considered as tantamount to putting in an answer4; or ley, 1 Mer. 373. upon the plaintiff undertaking to do all such acts, for the purpose of executing what the court thinks right, as if the answer were put in, or the cause brought to a hearing5; but if it be alleged at the bar that there are other questions besides that of title, the court will not grant the motion before answer 6. 5 Balmanno v. Lumley, 1 Ves. & Bea. 224. • Matthews v. Dance, 3 Madd. 470. 1 Ves. & Bea. 1; and see Patou v. Rogers, 1 Ves. & Bea. 352. The reference will be directed on motion before the hearing, only in cases where there is no other question than that of title; for, if the answer to a bill for specific performance raise any other objection to the performance of the contract than a defect in the title, it seems to be settled (although the cases are not uniform) that the cause must go on regularly to a hearing, and that the court will not examine whether the objections be frivolous or not, that being a matter which can be properly decided only when the court is in possession of the evidence. In Blyth v. Elmhirst 7, the doctrine of the court is explained by Lord Eldon, in something like the following words:-" Where the defendant, by his answer, says, there is no objection to the agreement, except what arises from the circumstance, that the plaintiff cannot make a title, the court has conceived itself to have an authority in the answer equivalent to the declaration in its own decree, that the agreement ought to be performed:' a sort of confession by the answer, that it ought to be executed; and, therefore, upon such an answer, the court has gone the length of directing a reference to the Master, to see whether a title can be made; but if the answer, upon rea sons solid or frivolous, insists that the agreement ought not to be executed, then the plaintiff must proceed as in ordinary cases, and bring the suit regularly to a hearing." 1 Morgan v. Shaw, 2 Mer. 140. In another case it is stated, that "the rule is quite obstinate that a reference of title cannot be had, except in cases where there is no question but that of title;" and the reason is, that otherwise the court would fall into the absurdity of having the Master's report upon a title, and then a subsequent determination that there was no subsisting agreement1. Whether there may be a case of fraudulent allegation sufficiently strong to form an exception to this rule, is a point not settled, though Lord Eldon declared he would not go the length of saying there might not be such a case2. It may be doubted, however, whether even the Ibid. most fraudulent allegations would form an exception, since the question of fraud would have to be tried; and it does not appear how this could be satisfactorily disposed of except at the hearing, when the court had all the evidence in the cause before it. 1 Jac. & Walk. The doctrine stated in the preceding paragraphs has undergone considerable discussion in several subsequent cases, which, although in some sense contradictory, yet the result of the whole will probably be found to concur in the proposition, which has been already laid down, that if the answer allege other matters beside the title, although that allegation may be unfounded, or even fraudulent, yet the cause must go on regularly to a hearing. A leading case on this subject is Boehm v. Wood3. There the agreement was dated the 26th July, 1819, and provided, "that 419. an abstract of title should be delivered by the 10th August, that the conveyance should be executed on or before the 29th September following, and the purchaser, upon payment of his purchase-money, was to be let into possession." The abstract was delivered accordingly, but objections having been taken to the title, the vendor was informed that the purchaser had, in consequence, been under the necessity of relinquishing the purchase. The main objection was, that the estate in question, together with other property, had been vested in trustees, by a deed, which it was contended was an act of bankruptcy. In another suit commenced against the purchaser of other property, this question had been raised, a case sent to a court of law, and after proceedings that occupied considerable time, it was decided that the deed was not an act of bankruptcy. The defendant in his answer stated, 11 Sim. & Stu. 174. 21 Sim. & Stu. 178. that he had purchased with a view to immediate residence; and that he would not have entered into the agreement if the vendor and his agent had not assured him that he should have possession at Michaelmas, and that possession not having been given, he insisted that he was not bound to perform the contract. On a motion for a reference of title, it was insisted by the counsel for the defendant, that the question of title was not the only issue, but that the answer tendered another issue, namely, "that time was of the essence of the contract," and consequently that the reference could not be granted. It was also said by counsel for defendant," that it was admitted in this case, that no purchase could be made without a judicial decision, and many conveyancers thought the deed was an act of bankruptcy." Lord Eldon said, "If another matter is put in issue besides the question of title, it falls within the common rule; but then, must not the court take care to see that, that other matter is something,—that it is substantial?" In Withy v. Cottle1, on the motion for a reference on the coming in of the answer, it was objected, that besides the question of title there was also this, that the contract had not been performed within the time fixed by the conditions of sale; an objection which, it was argued on the one side, was frivolous and merely for delay, and, on the other, that the subject matter of the contract being a life annuity, the value of which must necessarily be diminished by effluxion of time, that this was precisely the case in which time must be of the essence of the contract, and therefore that the objection was substantial. The Vice-Chancellor, feeling himself embarrassed by the conflicting decisions and dicta, which have been here stated, intimated a wish that the motion should be made before the Lord Chancellor, when Lord Eldon expressed his opinion that the objection was not frivolous, and refused the motion without costs. The same question was again raised in Gordon v. Ball 2, where it was objected on behalf of the purchaser, "that there was a right of way across the estate, the existence of which had been concealed from him, and which, if he had known of it, would have deterred him from purchasing." On the motion for a reference, the doctrine, that "where there are other objections besides the title, the court will not consider whether they be substantial or not," was much argued, though the motion was disposed of on another ground. His Honor, the Vice-Chancellor, observing, however, with reference to this doctrine, "that the consideration, whether an objection is to be considered unsubstantial, involves great difficulty. In order to determine whether the other objection be or be not unsubstantial, it must, for the purposes of this motion, be taken to be founded in fact; and being to be considered by the court, it is difficult to say that it is not to be open to the argument of counsel. If the objection is to be considered as unsubstantial, wherever the court is of opinion that it cannot be supported, then the whole merits of a cause may come to be argued, and to be decided upon motion, instead of decree, and upon an assumed statement which may have no existence in point of fact. If the objection, in the opinion of the court, be invalid, and yet is not to be considered as unsubstantial, then the case becomes still more embarrassing, and neither the court nor the counsel can know very well how to treat it. Is the court to say the invalidity of the other objection is too clear for argument, and therefore it is unsubstantial? Then the question of substantial or unsubstantial comes to depend upon the constitution of mind of the particular judge. At the same time it must be admitted, that there may be cases in which the other objection is of such little weight, that there may be reason to consider it as stated for the purpose of delay, and in order to escape an immediate reference as to the title. But this immediate reference being in its nature an extraordinary indulgence to the plaintiff, out of the common course of proceeding, the consideration is, whether it is not better where the defendant states even a frivolous objection, (which it is to be remembered must, as to the facts, be always made upon his oath, and as to the law, be sanctioned by the signature of counsel), rather to compel the plaintiffs to adhere to the common course of proceeding, then to encounter the difficulties which must unavoidably arise from a different course." This reasoning appears to be so satisfactory and conclusive, that it is not likely the question will be again raised. 4. Extent of the Reference.]-Where there is a reference upon title, the reference must be complete, and extend to all that regards the title, but not to other matters; and upon this principle, a reference having been obtained, it was extended on motion, in case the Master should be of opinion that a good title could be made," to inquire and certify when it appeared in and by the |