to permit it to stand over, to give the vendor an opportunity of remedying the defect, notwithstanding very urgent application on the part of the vendor's counsel, who stated that it was the universal practice not to allow the exception, but to permit it to stand over. His Honor expressing great surprise that counsel should make such an assertion, said that he had known it done very frequently. In that case, however, it ought to be observed, that the vendor's conduct had not been such as to entitle him to indulgence; the exception, according to the statement of the purchaser's counsel, having been allowed to stand over once or twice before, to give him an opportunity of getting certain parties to join in suffering a recovery, which would have cured the defect in the title, but which he had not done. 2. Report referred back, when.]—It is competent to the purchaser, at any time before the decree on further directions, to have the report (notwithstanding it may have been absolutely confirmed) referred back to the Master to review it, on the discovery of a new fact affecting the validity of the title. Thus in Jeudwine v. Alcock1, the Master having reported in favour of the title, and no exceptions being taken, the report was absolutely confirmed. Afterwards another Master, in a different proceeding, made a report by which the title was affected; whereupon the defendants presented a petition, supported by an affidavit of the fact, that they were ignorant of the second set of proceedings, till after the Master's report was confirmed, praying a reference back to the Master as to the title, to review his report, which was ordered accordingly. 1 1 Madd. 597; 298. 4 Madd. 3. Report referred back, Further Objections may be taken.]— If exceptions be taken to the Master's report, that a good title can be made, and are overruled, other objections to the title cannot be made; but, if the exceptions be allowed, and the report sent back to the Master to review it, and new abstracts be delivered 2, further objections may be brought in, arising either out of Brooke v. the new abstracts, or out of the abstracts delivered previously to the Master's report3. It is the course of the court, where the Fildes v. Master has, by expressing an opinion in favour of the title, prevented the vendor from shewing, that, if his opinion had been otherwise, still the title was good, to send it back to the Master to review his report, the party moving paying the costs of the motion 4. And the court will give the vendor a reasonable time 212. Hooker, 3 Madd. 193. 4 Per Sir L. Shadwell, V.C., in Egerton v. Jones, 3 Sim. 392; S. C. 1 Russ. & My. 1 Portman v. Mill, 1 Russ. & My. 696. for removing the objections, although the exceptions and further SECT. 22.-DECREE ON FURTHER DIRECTIONS. 1. Decree cannot be varied on Further | 2. Form of decree, on Further Directions, 1. Decree cannot be varied on Further Directions.]—If neither party object to the Master's report, the proper course then is to apply to have it confirmed, and to set down the cause for further directions. On the principle that the court cannot, on further directions, alter the decree made at the original hearing, where a decree is made at the hearing simply for a reference as to title, the court will not, on further directions, enter into the consideration of any other objection which the answer had set up against the execution of the contract. And, therefore, where the particulars of sale were headed "Brick earth and land-copyhold-held of the manor of Fulham;" and the estate was described as containing large quantities of superior marle or brick earth, and it was stated that specimens might be seen on the estate: the defendant, by his answer to a bill for specific performance, admitted the contract, but denied that the vendor could make a good title; and insisted also, that, as he had purchased the premises for the purpose of digging marle and earth to manufacture bricks and tiles for sale, he ought not to be compelled to perform the contract, unless the vendors could shew that the copyholders of the manor of Fulham were entitled by custom to dig marle and brick earth. At the hearing, the common reference as to title was made, and the Master having reported in its favour, the purchaser then presented a petition, praying a reference to the Master to inquire whether the copyholders of Fulham were entitled by custom to dig marle and brick earth, and when it was first shewn that they possessed such right, which was ordered to come on at the same time with the hearing of the cause on further directions: it was insisted, that there was nothing in the inquiry now sought, which was inconsistent with the former decree; but that it was merely a supplementary inquiry, without which it was obvious that justice could not be done between the parties. Lord Gifford, M. R., said "The defendant, by his 2. Form of the Decree on Further Directions.]-The nature and object of the proceedings on further directions will be most clearly understood by considering the form of the decree made on that occasion, the ordering part of which is as follows: 18-, This court doth order and decree, that the agreement in the pleadings mentioned, dated the day of, 18-, be specifically performed, and carried into execution. And it is ordered that it be referred to the said Master to compute interest, at the rate of 47. per cent. per annum on the sum of £the residue of the purchase-money for the estate and premises comprised in the said agreement, from the day of the time when the same ought to have been paid, according to the terms of the said agreement. And the said Master is to take an account of the rents of the said estate and premises received by or come to the hands of the plaintiff, or to the hands of any person or persons by his order, or for his use. And it is ordered, that what shall be coming on the said account of rent (after deducting therefrom the sum of £, the moiety of the excise duty, which, by the said conditions, is to be paid by the defendant) be deducted from the sum of £——, and what shall be found due for interest thereon, as aforesaid. And upon the 1 Le Grand v. Whitehead, 1 Russ. 309. plaintiff executing and delivering to the defendant, at the expense And any of the parties SECT. 23.-OF INTEREST ON PURCHASE-MONEY. 1. Effect of there being no Stipulation as 2. Effect of an Express Stipulation as 3. Purchaser shall not pay Interest, 6. Interest when the Sale is before the Master, 703. on the Deposit, 703. 7. 8. Rests, 705. 9. Rights and Liabilities of Vendor and Purchaser, before Conveyance, as to Rent, Deterioration, &c. 707. 5. Interest where the Subject of Sale is 10. Investment of Purchase-Money in reversionary, 703. Stock, at whose Risk, 708. 1. Effect of there being no Stipulation as to Interest.]—In the absence of express stipulation as to the payment of interest, the general rule is, that when, by the articles, a day is fixed for the completion of the contract, the vendor shall be entitled to the rents and profits from that period, and the purchaser shall pay interest on the purchase-money at the rate of four per cent. The court acted strictly on this rule till very recently, whatever time might elapse before the completion of the contract, frequently to the great hardship of the purchaser, as the interest generally exceeds the rents. The rule, however, now seems to be, that where there has been great delay in completing the contract, and it is clearly made out that it was occasioned by the vendor, then the court gives him no interest up to the period when he shews a good title, but leaves him in the possession of the interim rents and profits!. With respect to timber on the estate, the rule is different, interest being paid from the time of valuation, for the obvious reason, that the value of the timber being necessarily that Mudd, 4 Russ. which it is ascertained to be at the time of valuation, the subse 1 Esdaile v. Stephenson, 1 Sim. & Stu. 123; Jones v. 118. quent growth of the timber stands against the payment of the interest. When interest is recovered at law, it is always at the rate of five per cent., but a court of equity gives interest only at the rate of four per cent*. The latter part of this rule was introduced and established by the decisions of Sir J. Leach, as he has stated himself, observing, "that as to the payment of purchase-money, it was a general but not a universal rule, that when a specific performance is decreed, the vendor is entitled to his purchase-money, with four per cent. interest from the time when the money was contracted to be paid, and the purchaser is entitled to the rents and profits from the time when possession was to be delivered. Sir William Grant seems to have considered the rule as universal; but I have held that, where the vendor has improperly delayed the execution of the contract, and refused to give possession, he ought not to be benefited by the delay he has occasioned1. The old rule, as here alluded to by Sir J. Leach, is very clearly explained by Sir T. Plumer, M. R., in Burton v. Todd2. "The usual course," observes his Honor, "is, that the purchaser shall receive the rents and pay four per cent. interest on the purchase-money: a practice *During the late war, when the rate of interest was high, five per cent. was sometimes given. In Witts v. Dawkins, 12 Ves. 503, a decision by Sir W. Grant, interest at five per cent. was given according to the prayer of the bill; but the point seems to have passed sub silentio. Again, in Burnell v. Brown, 1 Jac. & Walk. 168, interest at five per cent was given. The decision was by the Lord Chief Baron, Sir Eichard Richards, and Master Cox, sitting for Sir T. Plumer, M. R. The report states, that the Lord Chief Baron, after consulting with Master Cox as to the rate of interest, directed it to be computed at five per cent., observing, that he had always been of opinion, that a party withholding money from a person entitled to it ought to pay to the person thus injured the interest which he might have made of it. This, however, is not the rule, and it cannot be doubted, that, on a proper application, Per Sir J. Leach, in Paton v. Rogers, 6 Madd. 256. 21 Swanst. 260. |