(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.

Where the purchaser is in possession of the estate, he may, even before answer (p), be ordered upon motion to pay the purchase-money into Court; this relief it seems will be afforded, when "the possession by the purchaser, without payment of the purchase-money, is according to the intention of the parties, or is held according to it, but the purchaser has exercised improper acts of ownership, for example cutting timber, or selling the estate" (q), or dealing with it in a manner contrary to former usage, or to the usual course of husbandry (r); "but not," according to Sir E. Sugden, "where the possession is taken under the contract, or is consistent with it, and the purchaser has not dealt improperly with the estate" (s); this last proposition must, however, be taken subject to the following qualifications, viz. that where a purchaser has been long in possession, e.g. three years (t), he will be required either to give up (u) possession or to pay in his purchase-money within a short date, e. g. two months (w); and this was ordered in a case where, according to the agreement, the greater part of the purchase-money was to remain on mortgage of the estate for twelve months after the conveyance (a?): a similar order was made, in a modern case, by Lord Langdale, although the purchaser had taken possession for the benefit of the vendor, and expressly without prejudice to any objection he might afterwards make to the title, and had retained possession for about a year and a half: and although the above proposition of Sir E. Sug-den was cited in argument, his Lordship seemed to consider that, as a general rule, a purchaser could not be allowed to retain both the estate and the money (y).

Stipulation under the contract.

Action brought and damages recovered.

Purchaser in possession, when ordered to pay purchase-money into Court.

(m) See 1 Y. & C. Exch. 228.

(n) Lord v. Stephens, 1 Y. & C. Exch. 222, 228; sed qu. whether the length of the tenancy is material; see Sug. 338.

(o) See Sainter v. Ferguson, 1 Mac. & G. 286.

(p) Dixon v. Astley, 1 Mer. 133; Blackburn v. Stace, 6 Mad. 69.

(q) Sug. 251; Dan. Ch. Prac. by H. 1642.

(r) Osborne v. Harvey, 1 Y. & C. C. C.116.

(s) Sug. 251.

In a case where, according to the bill, there was a parol agreement for sale at 80l. per acre, with possession given of five acres, but, according to the answer, only of three acres, a motion that the purchaser should pay in the purchase-money for the five acres, or else for the three acres, was refused (z).

In a case where there was a sort of mixed possession, the greater proportion of it being in the purchaser, but the vendor not being entirely out of possession, and part of the purchase-money was paid, but the purchaser was in a state of insolvency and admitted his intention to convey the estate to trustees for the benefit of his creditors, the Court appointed a receiver (a).

Purchaser allowed to elect,- either to pay or vacate possession.

Quantity of land taken when uncertain, no order made.

Under special circumstances, receiver appointed.

(t) Tindal v. Cobham, 2 Myl. & K. 385; Younge v. Duncombe, You. 275.

(u) Where possession having been taken by an agent in mistake, had been restored, the motion for payment was refused; Tomlinson v. Manchester and Birmingham Rail-way Company, 2 Rail. Ca. 104.

(w) Younge v. Duncombe, You. 275.

(x) S. C., sed qu. whether the purchaser, if the point had been pressed on the Court, would not have been allowed to give his bond or covenant for the amount agreed to be left on mortgage; and see the judgment in Clarke v. Elliott, 1 Mad. 606, 607.

(y) Fowler v. Ward, 6 Jur. 547; and see Adams v. Heathcote, 10 Jur. 301, V. C. E.; Smith v. Lloyd, 1 Mad. 83; and Wickham v. Evered, 4 Mad. 53.

(z) Benson v. Glastonbury Canal Company, 1 C. P. Coop. N. R. 350.

In another case an occupation rent was set on the estate deducting interest at 5l. per cent. on the deposit (b): so where a yearly tenant in possession filed a bill claiming an option to purchase, the Court would only restrain an ejectment by the landlord on the terms of the tenant continuing to pay the rent, without prejudice (c).

Where a vendor in possession files a bill for specific performance and to restrain the purchaser from proceeding at Law for his deposit, he can generally obtain the injunction only on the terms of paying the deposit into Court; unless his retention of the estate be the fault only of the purchaser; as where the vendor is able and willing to make a good title and the other improperly refuses to complete (d).

A purchaser in possession, even under the contract, but who has not paid his purchase-money, may be restrained on motion from waste or destruction of the property; e. g.: from felling timber (e): so, the vendor may, under special circumstances, as where he has given up possession and received part of the purchase-money (f), be restrained from conveying away the legal estate, or contracting to resell the property (g): but, in general, in a suit for specific performance the purchaser is not entitled to restrain the owner from dealing with his property; as a different doctrine would operate to control the rights of ownership, although the agreement were such as could not be performed (h): but in a suit to enforce an agreement for sale of a next presentation, the vendor may be restrained from presenting any clerk not nominated by the purchaser; and the injunction has even been extended so as to restrain the Bishop from presenting, except on the like nomination, or from collating in the event of a lapse pending the suit (i).

Or occupation rent set on estate.

Vendor plaintiff seeking injunction, when obliged to pay in deposit.

Injunction against waste by purchaser in possession.

Against exercise by vendor of his legal rights.

(a) Hall v. Jenkinson, 2 Ves. & B. 125; see the judgment, 126.

(b) Smith v. Jackson and Lloyd, 1 Mad. 618.

(c) Pyke v. Northwood, 1 Beav. 52.

(d) Wynne v. Griffith, 1 Sim. &

St. 147, 149.

(e) Crockford v. Alexander, 15 Ves. 138; vide supra, p. 118, 119.

(f) Spiller v. Spiller, 3 Sw. 556.

(g) Echliff v. Baldwin, 16 Ves. 267; Curtis v. Marquis of Buckingham, 3 Ves. & B. 168.

"Where the question of title is the only one in dispute, the Court, in order to save time (k), will, at the instance of either party, direct a reference to the Master upon motion before the hearing, or even, at the instance of the plaintiff (l), before answer (m); unless the defendant's counsel can state that other matters are in question (n); and this, although the only question of title is one which might be conveniently determined at the hearing without a reference (o), or although specific performance be resisted upon the ground that time was of the essence of the contract, and that a good title was not shown within the specified period (p): such an order, if obtained by the plaintiff before answer, will not preclude the defendant from making any defence which he thinks proper (q): and in a suit commenced by claim under the new Orders of April, 1850, the order of reference is of course, unless sufficient cause to the contrary is shown by the defendant on the hearing of the claim (r).

Reference of title, on motion before hearing.

Unless contract resisted on grounds other than of title.

(h) Per Lord Eldon in Spiller v. Spiller, ubi supra; Turner v. Wight, 4 Beav. 40; see Haigh v. Jaggar, 2 Coll. 231.

(i) Nicholson v. Knapp, 9 Sim. 326.

(k) Dorin v. Harvey, 9 Jur. 648; 15 Sim. 49.

(l) See Curling v. Flight, 5 Ha. 247.

(m) Balmanno v. Lumley, 1 Ves.

& B. 224; Bennett v. Rees, 1 Keen,408

(n) Matthews v. Dana, 3 Mad.470

(o) Curling v. Flight, 5 Ha. 248.

(p) Foxlowe v. Amcoats, 3 Beav.496

(q) Emery v. Pickering, 13 Sim.583

(r) But the agreement must be admitted by the defendant, or proved by the plaintiff, supra; and see Marshall v. Davies, 14 Jur. 997, V. C. R.

It is stated by Sir E. Sugden, that "in every case, where the answer, upon reasons solid or frivolous, insists that the agreement ought not to be executed, the Court must first dispose of the question raised" (s); and according to some authorities, such question could only be disposed of upon the hearing (t). However, in a recent case, where the question arose whether a defence, even although frivolous, is necessarily an answer to the motion, Sir J. Wigram, V. C, observed, that such has not been the practice, at least since the case of Withy v. Cottle (u). Since the decision in that case the practice of the Court has been to look into the answer for the purpose of seeing whether that which the defendant calls an objection to performing the contract is an open question. A point raised by the answer as an objection other than to title, may be so surrounded and governed by authority, as, in fact, to create no difficulty, and to be, in effect frivolous; and in that case the Court does not yield to the objection by refusing the reference (w).

It has been decided by the same learned Judge that for the purposes of such a motion, objections to the title mean such objections as can only be properly the subject of adjudication upon the investigation of the title; e. g. objections depending on the application of conditions of sale, (the propriety or validity of the conditions themselves not being questioned) (x); or on the liability of the vendor to furnish any particular evidence of title, or on his ability to furnish such evidence (y).