mile, and another of four miles from a borough-town, being wholly incapable of estimation.

In Sherwood v. Robins also, where there was a stipulation for compensation to the purchaser, in case of misdescription, the principle was found inapplicable. The plaintiff brought his action to recover from an auctioneer the deposit paid on a purchase at an auction of property described as "the reversion of 2000l. after the death of a person aged 66," subject to a contingency defeating the reversion in case the party on whose death the reversion was expectant should leave children. It was proved that the party in question was only of the age of 64, and not of 66; and the jury having found that this misrepresentation was wilful, the plaintiff obtained a verdict. Lord Tenterden C. J. then said that he thought the wilfulness of the misrepresentation immaterial; and proceeded thus: "In the case of a reversion, simply expectant on the death of an individual, if a mistake be made in his age, a compensation may be made under the condition; for the difference of value may be computed but where there is an additional contingency, such as that of the birth of future children, in this case, the difference of age alters the likelihood of that contingency; and in such a case, therefore, no estimate can possibly be made of the difference of value between the thing described and the thing sold, and the contract itself must be vacated."

66

In Flight v. Booth 2 the particulars of sale described a house in the Piazza of Covent Garden as calculated for an extensive business. in the carpet, haberdashery, drapery, paper, floorcloth, upholstery, grocery, tea-trade, &c.; and stated that there was a clause in the lease prohibiting any offensive trades to be carried on upon the premises—and that they cannot be let to a coffee-house-keeper or working hatter." On the production of the lease it was found that the prohibition extended to the trades of a "brewer, baker, sugar-baker, vintner, victualler, butcher, tripe-seller, poulterer, fishmonger, cheesemonger, fruiterer, herb-seller, coffeehouse-keeper, distiller, dyer, brazier, smith, tinman, farrier, dealer in old iron, pipe-burner, tallow-chandler, soap-boiler, working hatter," or suffering the premises to be used as a

1

1 Mood, & Malk, 194.

2 1 Scott, 190; 1 Scott's N. C. 370.

shop or place for the sale of coals, potatoes, or any provisions whatsoever." There was also a clause prohibiting assignment of the premises during the last seven years of the term, without the consent, in writing, of the superior landlord. Upon these facts, the Court of Common Pleas held that the misdescription was so material, and the difference of value so uncertain and arbitrary, that recourse could not be had to the compensation clause, and consequently that the purchaser was entitled to rescind the contract and recover back his deposit.

In Dykes v. Blake1, the thirteenth lot was described in the particulars as "a first-rate building plot of freehold ground," having a frontage of eighty-six feet to the grove and ninety feet to the carriage sweep." The existence, however, of a right of way across the ground was suppressed; and the Court of Common Pleas held that the principle of compensation did not apply. "The purchaser," the Court said, "might fairly conclude, as the seller intended him to conclude, that he might purchase the whole lot for the purpose of building. But the direction of the way claimed would render the close altogether useless for the very purpose for which it was known to be purchased."

In White v. Cuddon 2 certain manors were described as manors in which the fines were arbitrary, while the annual amount of such fines was underrated. It appeared that the fines were arbitrary only on alienation; and the House of Lords held that the purchaser could not enforce specific performance with compensation, because there were no precise data by which the amount of it could be ascertained, for arbitrary fines are necessarily incapable of valuation.

A partial defect in the title to the estate is also not a subject of compensation. Thus in Wheatley v. Slade3, where a vendor entitled to nine-sixteenths of the fee-simple agreed to sell the entirety, the Vice Chancellor of England refused to decree a specific performance with an abatement of the purchase money.

So also in Roffey v. Smallcross, where under a decree a

4 Sim. 126. See also Dalby v. Pullen, 3 Sim. 29.

4 4 Madd. 227.

person purchased two-sevenths of an estate in one lot, and a good title was made to only one-seventh, the purchaser was allowed to rescind the contract as to the whole of the lot.

Again, the difference between a freehold and a copyhold estate is incapable of estimation; and a purchaser cannot be compelled to accept a copyhold estate in lieu of a freehold': though a vendor will perhaps be allowed time to procure an enfranchisement.

(4.) Where conditions of sale extend, as they sometimes do, to provide compensation, not only for the vendor, but also for the purchaser, in case of misdescription or error, the effect of such conditions is particularly oppressive on the purchaser, as he may thus be rendered liable to the payment of a sum of money far beyond the limit of his own resources.

In

We are not aware of any case of this kind having come before the Courts for decision upon the vendor's claim for compensation. But as an error in the particulars of sale necessarily originates with the vendor, we apprehend that he would have great difficulty in substantiating a claim of this nature in any case where the means of obtaining accuracy were within his command previously to the sale. Tomkins v. White2, Lord Ellenborough said, "A little more fairness on the part of auctioneers in the framing of their particulars would avoid all these inconveniences. There is always a suppression of a fair description of the premises, or there is something stated which does not belong to them: and in favour of justice, considering how little knowledge the parties have of the thing sold, much more particularity and fairness might be expected of them. The particulars are in truth like the description in a policy of insurance, and the buyer knows nothing but what the party communicates."

III. Conditions Posterior. Conditions of this class usually make provision for satisfaction to the vendor in case of the purchaser's non-fulfilment of his contract. It is generally stipulated that if the purchaser shall fail to comply with the conditions, the deposit shall be forfeited, and the proprietors be at liberty to resell the

1 Twining v. Morrice, 3 Bro. C, C. 326. 331.

* Smith, 439.

estate; and the deficiency, if any, by such sale, together with all charges attending the same, shall be made good by the defaulter;" and Sir Edward Sugden advises that this condition should never be omitted. It forms a lien on the estate for the purchase money, &c., and if the purchaser do not comply with the conditions, the vendor may, by virtue of this stipulation, resell the estate, and recover the deficiency and charges from the purchaser. And if the money produced by the second sale exceed the original purchase money, the purchaser who has violated the agreement will not be entitled to the surplus, but the vendor himself will be entitled to retain it.1 Conditions posterior sometimes, however, go on to provide for stipulated damages to be mutually payable by either party making default in fulfilling the contract. But the construction of such a clause in the conditions seems to be attended with some doubt. In Reilly v. Jones2, on the sale of the lease of a public-house there was a condition that law expenses, &c. should be paid by the parties in equal moieties, and that, either of them not fulfilling all and every part of the agreement, the party not fulfilling should pay unto the other the sum of 500l., "settled and fixed as liquidated damages;" and it was held by the Court of Common Pleas that the sum thus fixed was not a mere penalty to cover the actual damage, but was itself the measure of damages to be recovered on any breach of the agreement. In Randal v. Everest, however, Lord Tenterden took a different view of such a condition. The agreement in that case contained the following clause; "If either of the parties shall neglect or refuse to comply with his part of the agreement, the party so refusing or neglecting shall pay to the other of them, on demand, the sum of 100%., hereby mutually agreed upon to be the damages ascertained and fixed on breach thereof." And his Lordship in summing up, said: "A great deal has been said about the different import of the terms penalty and stipulated damages; but I am of opinion, and shall always hold so until compelled by a higher authority to say otherwise, that whether the term penalty or liquidated damages be used in the agreement, a party who claims com

Sug. V. & P. 34., 7th edit.

21 Bing. 302.

31 Mood. & Malk. 41.

pensation for a default shall only be allowed to recover what damage he has really sustained. Whatever language the parties may choose to use, I am of opinion, in point of law, that a jury cannot be called upon to give more damage than the party has really sustained. I confine my opinion to contracts not under seal; instruments in that form may perhaps receive a different construction." The subject was again discussed in Crisdee v. Bolton', before the Court of Common Pleas, when Best C. J. said he could not subscribe to the doctrine of Lord Tenterden in Randal v. Everest. Sir Edward Sugden has noticed this diversity of judicial opinion; and remarks that whichever may be the correct opinion, a jury

without proof of damage, give the whole sum named in the conditions. His observation applies also to a stipulation that the deposit shall be forfeited and belong to the seller as stipulated damages: and he adds, that, where the expenses of the resale, &c. are stipulated for, the measure of damages would be those expenses, &c.2

2

ART. VII. -- MEMOIR OF THE LATE CHARLES

BUTLER, ESQ.

THE biography of Mr. Butler would, we think, be a pleasant and profitable task. A life of 82 A life of 82 years, distinguished by complete success in the most learned branch of the law, constant labours in the cause of civil and religious liberty, frequent intercourse with great and learned men, and literary pursuits extending over the wide field of history, geography, ecclesiastical and biblical learning, and mathematics, is a subject which would provide ample materials for the writer, and, if properly treated, could not fail to interest and instruct the reader.

It is not, however, our intention in the following pages to give a Life of Mr. Butler, or attempt fully to delineate his

13 Carr. & P. 240. 243.

2 1 V. & P. 66. 10th ed.