As to misdescription and compensation.

Does not extend to misdescription, it wilful; or affecting the substantial subject-matter of the con tract; or caused by gross negligence.

(w) Bullen v. Denning, 5 B. & C. 842.

(x) Sug. 30.

(y) Wright v. Wilson, 1 Moo. & R. 207; and see Mills v. Oddy, 6

Car. & P. 728.

(z) Sug. 36.

(a) Flight v. Booth, 1 Bing. N. C. 370, 377.

If, however, the intended purchaser do not rely upon the particulars or statements of the vendor, but examine the property in person or by his agents, he cannot, in the absence of direct fraud, contend that he is deceived by the representations of the vendor as to any point upon which he has thus tested their accuracy (f).

And it may be collected from the cases at Law and in Equity, that, independently of fraud, and on the mere ground of the materiality of the misdescription, the usual condition as to compensation will not avail in the following cases, viz:1st. Where the property is not of the same description as it appears to be in the particulars; as where long leasehold is described as freehold (g); or as where, upon the sale of an estate let at lease on a rack rent, such rent is described as a ground rent (h); or as where a house, composed externally partly of brick and partly of timber and lath and plaster, is described as a brick-built house (i).

But purchaser testing accuracy of particulars may be bound.

Cases where materiality of misdescription will avoid common condition.

Where property is of different nature;

(b) See Sug. 36.

(c) Duke of Norfolk v. Worthy, 1 Camp. C. 337.

(d) Mills v. Oddy, 6 Car. & P. 728.

(e) Robinson v. Musgrove, 8 Car. & P. 469; but, in general, a misstatement as to the state of repairs would seem to be a matter for compensation in equity: Dyer v. Har-grave, 10 Ves. 505, 508.

(f) See Attwood v. Small, 6 Cl.. & Fin. 232; see the judgment in Clap-ham v. Shillito, 7 Beav. 149.

(g) See and consider Browne v. Fenton, 14 Ves. 144.

(h) Stewart v. Alliston, 1 Mer. 26. or not identical; or material part of it is wanting, or has no title; or its clue enjoyment is materially affected; or amount of compensation cannot be estimated;

2ndly. "Where the property, as described, is not identical with that intended to be sold: as when a vendor, intending to sell No. 2 in a street, described it as No. 4, the purchaser, although No. 2 was the same description of house as, and in better repair than, No. 4, recovered his deposit at Law (j).

3rdly. Where a material part of the property described has no existence, or cannot be found (k); or where no title can be shown to it; as when, upon the sale of a leasehold house and small yard adjoining, the yard was not included in the lease, but held from year to year at a separate rent (I).

4thly. "Where the misdescription is upon a point material to the due enjoyment of the property; as when, upon the sale of a lease of a house and shop, the particulars merely stated that the lease contained a restriction against certain specified trades being carried on upon the premises, whereas in fact several other trades were forbidden (m): so also, where, upon the sale of a piece of land described as "a first-rate building plot of ground," no notice was taken of a right of way passing over it (n), or of an underground watercourse which third parties had liberty to open, cleanse, and repair, making satisfaction for damage thereby occasioned (o).

5thly. "Where the misdescription is of such a nature that the amount of compensation cannot be estimated; as where, on the sale of a reversion, expectant on the decease of A. in case he should have no children, his age was described as 66 instead of 64 (p); or as where, on the sale of a wood, the particulars erroneously stated that the average size of the timber approached 50 feet, the number of trees not being stated (q); or as where the particulars stated the premises to be in the joint occupation of A. and B. as lessees, when in fact A. was only assignee of the lease, and B. was a mere joint occupier (r).

(i) Powell v. Doubble, Sug. 30.

(j) Leach v. Mullett, 3 Car. & P. 115.

(k) Robinson v. Musgrove, 2 Moo. & R. 92.

(l) Dobell v. Hutchinson, 3 Ad. & El. 355.

(m) Flight v. Booth, 1 Bing. N. C. 370.

(w) Dykes v. Blake, 4 Bing. N. C. 463; and see Gibson v. D'Esfe, 2 Y. & C. C. C. 542.

(o) Shockleton v. Sutcliffe, 1 De G. & S. 609.

And it may be observed, that where the vendors are trustees they are not justified in allowing compensation for their own errors, and a Court of equity will refuse to act upon the condition (s).

In the absence of stipulation, a vendor is bound to produce, at his own expense, the originals of all deeds and other instruments necessary to verify the abstract (t); except copies of Court Roll, and such instruments as are upon record (u), or have been lost (v) or destroyed; as respects all which he may verify his abstract by secondary evidence: he must, however, as a general rule, in order to render copies admissible in evidence, prove the execution, and delivery of the originals (w); which, when deeds are lost and the witnesses unknown, is often an insuperable difficulty: when the sale is completed, the purchaser is entitled to the original title deeds, or a covenant to produce them, and attested copies of the originals (x); this right, however, does not seem to extend to old deeds not necessary to make a title (y); or to copies of Court Roll, or instruments on record, unless, (as respects the covenant for production,) they are in the vendor's possession or power (z); or to documents used merely as negative evidence (a): the attested copies and deed of covenant must be prepared at the expense of the vendor (b): if he wish to negative the purchaser's rights in the above respects, he must do so clearly and explicitly in the conditions: and when property is sold in lots, it is the almost invariable practice to throw the expenses of attested copies upon the purchasers, and a solicitor would generally incur personal liability by omitting a condition to that effect: the condition, if so intended, should expressly provide for the expense of all attested copies, whether required for the verification of the abstract or for any other purpose; particular care to insert proper conditions as to deeds should be taken upon the sale of a part only of an estate in mortgage, when the purchase-money is not likely to pay off the incumbrance; a deposit of the deeds with some third party, for the joint benefit of the mortgagee and purchaser, will, if acquiesced in by the mortgagee be the most eligible arrangement (c).