the market, the purchaser in taking objections which however

plausible are decided by the court not to be tenable*.

So in Dakin v. Cope1, which arose on a bill filed by vendors 12 Russ. 170. for specific performance of an agreement for the purchase of a leasehold public-house, the sale was made by the executors of Dakin; and on the margin of the abstract of title delivered by them, was the following memorandum, in the hand-writing of the clerk to their solicitor:-" The lessors consent to waive all forfeiture or right of entry, which may have accrued to them by reason of the insolvency of Mr. Dakin, and will join in the assignment to the purchaser." The owner of the estate was made a party to the assignment of the lease, but refused to execute, alleging that she was not a necessary party; but she stated, that she did not wish to take any advantage of the forfeiture, if any had been incurred, and signed a receipt for the rent, for the purpose of waiving such supposed forfeiture. The purchaser, however, insisted that he was not bound to accept the assignment, unless the lessor joined in it. A bill was therefore filed, and a decree made against him, but without costs, on the ground that "the litigation had been in some measure occasioned by the marginal note in the abstract, and the acts of the plaintiff's solicitors 2."

Cases may, and frequently do arise, in which none of these courses with respect to costs would do justice between the parties; each party may have been partially wrong, but in different degrees, and then the court will endeavour to apportion the costs so as to meet, as nearly as possible, the exigency of such a case, which clearly demands that each party should pay the costs incurred by his own error. Thus, in a case where the abstract originally delivered was imperfect, inasmuch as it did not shew, that part of the premises had been originally copyhold, and did not

*Thorpe v. Freer, 4 Madd. 466; and see Aislabie v. Rice, 3 Madd. 260; Cox v. Chamberlain, 4 Ves. 631; see also Vancouver v. Bliss, 11 Ves. 463, where Lord Eldon, speaking of White v. Foljambe, 11 Ves. 337, and saying that " primâ facie, he should have thought the party who failed ought to pay the costs," observes that the ground of not giving the costs "that the question was a pure

was,

question of title, which raised very
considerable difficulties in the minds
of those most capable of judging upon
such a subject; there was nothing of
previous representation, and the court
was only to give an opinion upon a
point of law, which it was very diffi-
cult for the parties to settle for them-
selves, without something of judicial
opinion upon it."

22 Russ. 175.

1 Wilson v.

Allen, 1 Jac. &
Walk. 623.

* 1 Cox, 199.

satisfactorily identify the parcels; and objections being taken in
the Master's office on these grounds, the vendor, to remove them,
furnished additional abstracts of the title to the copyholds, and
procured affidavits to supply the defects in the evidence of the
identity. Sir Thomas Plumer, M. R., observed, "I cannot say
that the defendant in this case has acted quite right; that he has
not taken some objections that he ought not; but still I should
feel great difficulty in fixing him with the costs. A vendor who
seeks a specific performance should come prepared with his title;
he ought to have it ready before he carries his estate to market.
If he will sell it with a confused title, he must be at the expense
of clearing it. The plaintiff here comes into the office with an ab-
stract undoubtedly imperfect, for it did not state what part of the
land was copyhold; proceedings then follow at a great expense,
occasioned by the plaintiff's neglect. It gradually ripens into a
better title; the time that elapsed during the inquiry improves it.
The deeds did not, on the face of them, make out the title, as
they failed to identify the premises. Affidavits are then filed
which were not originally before the Master, and which were not
before the defendant when he first resisted. Why was not this
done before the commencement of the suit, or why was it not
provided for in the contract? We cannot now characterise the ob-
jections taken as frivolous; and though they have been removed, it
was not by anything that was in the defendant's knowledge at
the time he put in his answer.
Under these circumstances, can

it be said, that the defendant ought to bear the costs, when a
great part of them has arisen from the plaintiff's conduct in carry-
ing to market a defective title? The defendant is not to pay the
expense of clearing up the plaintiff's title; he ought not to pay,
but he must receive so much as he expended before the difficul-
ties were removed; in what he has done since the affidavits were
brought in, he has been unsuccessful, and he must pay the costs
from that time1."

In Jones v. Lewis 2, a suit for specific performance had been rendered necessary by the misconduct of a trustee who, having in other respects behaved ill, was, in effect, ordered to pay the costs both of the vendor and purchaser.

In some cases where it is doubtful whether the plaintiff ought to have a decree, the bill will be dismissed without costs, on his waiving an action at law against the defendant, otherwise not,

the object of this qualified order being to put an end to the litigation *.

Whether a bill can be dismissed, and the defendant ordered to pay the whole, or any part of the plaintiff's costs, does not seem to be positively decided1.

1 Lewis v. Lox

429.

2

Gwynne v.

Heaton, 1 Bro.
C. C. 11.

6. Costs where the Contract is set aside for Inadequacy of am, 3 Mer. Price.]-When a contract is set aside on the ground of inadequacy of price, it is generally upon terms of repaying the sums actually laid out and expended and interest, together with the costs of the suit. With respect to the costs, "It seems hard," as Lord Thurlow has observed, "that where a contract is set aside upon an equitable ground, that still the contract should remain a security for all the costs generally, and which have been incurred by the defendant putting the plaintiff to the necessity of filing a bill, and by his defending a contract which ought not to stand." The rule, however, is so settled; and as it does not appear to be capable of explanation, probably originated, like many other arbitrary rules, in an accidentt. The same rule as to costs prevails, with a modifi

* Per Lord Redesdale in Harnett v. Yielding, 2 Sch. & Lef. 560; and sce Buxton v. Lister, 3 Atk. 384, where Lord Hardwicke acted on this rule; see also Spurrier v. Hancock, 4 Ves. 667, where the bill by the purchaser was dismissed without costs, on his undertaking to give up the agree

ment.

+ It grew most probably out of Lord Cowper's decision in Twisleton v. Griffith, 1 P. W. 310: that case was decided chiefly on the authority of Berney v. Pitt, 2 Ver. 14; a cause first heard by Lord Nottingham, who denied relief; but was afterwards reheard by Lord Jeffreys, who granted relief, declaring "that these bargains were corrupt and fraudulent, and tended to the destruction of heirs sent up to town for their education and to the utter ruin of families; and that the relief of the court ought to be extended to meet with such corrupt bargains and unconscionable practices." With respect to Lord Jeffreys' decree, Lord

Cowper thought," that the reason in-
ducing it was probably to discourage
a growing practice of devouring an
heir on a confidence in Lord Notting-
ham's decree; but Lord Jeffreys' de-
cree standing shewed that every one
thought the same was just, and that
there was therefore no attempt in
Parliament to reverse it." With this
presumed object, of which his Lord-
ship very properly approved, he thought
that the authority of Lord Jeffreys was,
in this instance, better deserving of
being followed than that of Lord Not-
tingham. He relieved the plaintiff on
payment of “ principal, interest, and
full costs," adding, as if conscious that
he had not done complete justice, "I
mean liberal costs." It is manifest
that Lord Cowper did not see his way
very clearly to this decision; or at all
events that he rather thought he ought
not to have so decided, and that he
threw in these "liberal costs" as a
sort of counterpoise on the other side
of the scale.

cation, where the sale of an interest in possession is set aside on the ground of inadequacy, coupled with such circumstances of distress on the part of the vendor, as leads the court to think that advantage has been taken of his situation. Thus in Wood v. ! 3 Madd. 424. Abrey1, Sir T. Plumer said, that "though he could not, after the cases which had been decided, make the defendant pay costs; yet

* Hincksman v. Smith, 3 Russ.

436.

he could not bring his mind to give to a defendant the costs of a suit made necessary by his unfair dealing." And the rule seems now to be settled accordingly 2.

7. The answer may be read as to Costs.]-It may be observed, in the last place, that the answer, though not evidence in the cause, may be read as to the question of costs; but depositions, it seems, cannot be read as to costs, unless they have been read as evidence in the cause*.'

* Howell v. George, 1 Madd. 13; Dawson v. Ellis, 1 Jac. & Walk. 524, where the answer of a peer, which is put in not upon oath, but on his protestation of honour, was read as to the

question of costs. And see Vancouver v. Bliss, 11 Ves. 464, where Lord Eldon observes, that " he was bound on the question of costs to look at the answer."

ADDENDUM.

No. I.

а

Turner v. Harvey, Jac. 172.

'Small v. Atwood, You.

407.

Turner v. Harvey, Jac.

169.

Rescinding an Agreement.]-Few cases involve considerations of greater difficulty than those which turn upon the question, whether the court will order a contract to be delivered up, or merely leave the parties to their remedy at law1. The result, however, seems to be, that in order to induce the court to order contract to be delivered up to be cancelled, there must be actual fraud; that is to say, misrepresentations made 2, or facts concealed from the knowledge of the other party 3, for the purpose of deceiving him as to the value of the estate; and in a recent case, where a vendor and his solicitor had fraudulently, and in the absence of the purchaser's solicitor, obtained from the purchaser (who was desirous of completing the purchase, and had entered into possession) the purchase-money and covenants for the production of title-deeds, while the title to a part of the purchased premises was still under investigation; it was held, that the purchaser was entitled to have the contract rescinded, and his purchase-money, together with all costs, charges, and expenses repaid to him, and to have the deeds of covenant executed by him delivered up to be cancelled 4. There are cases, though of very rare occurrence, where, even after the conveyance has been executed, and the purchase-money paid, the contract may be rescinded; (one instance has been stated in a former page 5.) In such a case, however, the purchaser must in general rely upon his covenants for title, unless a very clear case of fraud can be made out. Where a party, having a right to repudiate a contract on the ground of fraud, goes on dealing with the property as if it were his own, and so waives his right to rescind the contract, he cannot afterwards, on the discovery of a new circumstance of fraud, rescind the contract, inasmuch as "this can only be considered as strengthening the evidence of the original fraud, and cannot revive the right of repudiation which has been once waived 6." Where either party fails to perform his part of the agreement, & El. 40.

3

Berry v. Armistead, 2 Kee. 221.

Edwards v. M'Leay, ante,

p. 498.

• Campbell v. Fleming, 1 Ad.